STATUTORY INSTRUMENTS.

S.I. No. 853 of 2004 .

EUROPEAN COMMUNITIES (DISTANCE MARKETING OF CONSUMER FINANCIAL SERVICES) REGULATIONS 2004.

S.I. No. 853 of 2004 .

EUROPEAN COMMUNITIES (DISTANCE MARKETING OF CONSUMER FINANCIAL SERVICES) REGULATIONS 2004.

I, BRIAN COWEN, Minister for Finance, in exercise of the powers conferred on me by the European Communities Act 1972 (No. 27 of 1972), as amended by the European Communities (Amendment) Act 1993 (No. 25 of 1993), and for the purpose of giving effect to Directive 2002/65/EC, dated 23 September 2002, of the European Parliament and of the Council, hereby make the following Regulations:

PART 1

PRELIMINARY PROVISIONS

Citation and commencement

1. (1) These Regulations may be cited as the European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004.

(2) These Regulations come into operation on 15 February 2005.

Object of these Regulations

2. The object of these Regulations is to give effect to Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC.

Interpretation

3. (1) In these Regulations, unless the context otherwise requires--

“agent” includes nominee and intermediary;

“authorised officer” means a person appointed and holding office under Regulation 25;

“automated calling system” means a telephone calling system that is or can be operated without the involvement of a human intermediary;

“the Bank” means the Central Bank and Financial Services Authority of Ireland;

“business” includes trade and profession;

“by electronic means” has the meaning given by Regulation 3 of the European Communities (Directive 2000/31/EC) Regulations 2003 ( S.I. No. 68 of 2003 );

“cancellation period”, in relation to a distance contract for the supply of a financial service, means the period within which the consumer can, in accordance with Regulation 10, cancel the contract without penalty and without giving any reason;

“competent authority”, in relation to the State, means--

(a) the Bank as regards functions imposed on the Bank by or under the Central Bank Act 1942 (No. 22 of 1942), or

(b) the Director of Consumer Affairs as regards suppliers to whom Part XI of the Consumer Credit Act 1995 (No. 24 of 1995) applies;

“competent authority”, in relation to another Member State, means an authority that, in accordance with a law of that State, has responsibility for supervising the making and performance of distance contracts for the supply of financial services in that State;

“consumer”, in relation to a distance contract, or proposed distance contract, for the supply of a financial service, means a natural person who is acting otherwise than in the course of a business carried on by the person, and, if the rights and obligations of a consumer under a contract to which these Regulations apply have passed to another such person (whether by assignment or operation of law), includes that other person;

“distance contract for the supply of a financial service” means a contract under which a supplier undertakes to supply a financial service to a consumer under an organised distance sales, or service-provision, scheme operated by the supplier, who, for the purposes of the contract, makes exclusive use of one or more means of distance communication up to and including the time when the contract is entered into;

“the Distance Marketing Directive” means Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002;

“durable medium” means any thing in which information is stored, or that enables information to be stored, in a way that--

(a) allows future access to the information for such time as is adequate for the purposes for which the information is to be used, and

(b) enables the information to be reproduced in an unchanged form, but does not include an Internet website unless it would otherwise be a durable medium as defined in this definition;

“electronic mailing address” includes a facsimile number;

“financial service” means any service of a kind normally provided in the ordinary course of carrying on a banking business, an insurance business or a business of providing credit, personal pensions, an investment service or a payment service;

“initial service agreement” means an agreement under which continuing and recurrent transactions, and related financial transactions, are carried out on behalf of the consumer, and includes an agreement for the provision of a bank account, a credit card or portfolio management services, but does not include an extension of the agreement to transactions that are additional to, or are unrelated to, those covered by the agreement;

“insurance” includes life assurance;

“life assurance” means insurance that is governed by the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360/1994);

“means of distance communication” means any means that enables persons to communicate with each other when they are not in each other's presence;

“Member State” means a Member State of the European Communities;

“payment service” includes (but is not limited to) a money transmission service, a bureau de change, and any service involving making transfers of credit, direct debits or credit or other card payments;

“permitted cancellation period” means the period within which a consumer is permitted by Regulation 11 to cancel a distance contract for the supply of a financial service;

“record” means any record of information, however compiled, recorded or stored, an includes--

(a) any book, a register and any other document containing information, and

(b) any disc, tape or other article from which information is capable of being produced in any form capable of being reproduced visually or aurally,

and also includes part of a record;

“supplier” means a person who, in the course of a business, provides one or more consumer financial services under distance contracts for supply of such services, and if the rights and obligations of a supplier under a distance contract for the supply of a financial service have passed to another person, either by assignment or operation of law, includes that other person;

“transaction”, in relation to a distance contract for the supply of a financial service, means a transaction carried out, or a service provided, in connection with the supply of a financial service under the contract, and, in particular, includes--

(a) making a deposit to, or a withdrawal from, an account with a bank or other financial institution, and

(b) making a payment by means of a credit, debit or other payment card, and

(c) a transaction carried out in accordance with a service agreement for the supply of portfolio management services.

(2) In these Regulations--

(a) a reference to a Part, Regulation or Schedule is a reference to a Part or Regulation of, or a Schedule to, these Regulations, and

(b) a reference to a paragraph or a subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs,

unless in either case it is indicated that a reference to some other provision is intended.

(3) If a word or expression that is not defined in this Regulation is used in these Regulations and is also used in the Distance Marketing Directive, the word or expression has, unless the context otherwise requires, the same meaning in these Regulations as it has in that Directive.

(4) If an enactment referred to in these Regulations is amended after these Regulations come into operation, the reference is taken to be a reference to the enactment as amended.

(5) Any act done or omitted to be done by a person in the person's capacity as an employee or agent of a supplier is, for the purposes of these Regulations, taken to have been done or omitted to be done by the supplier.

Contracts to which these Regulations apply

4. (1) These Regulations apply to every distance contract for the supply of a financial service. However, these Regulations do not apply to such a contract if it is entered into between a consumer in the State and a supplier who is carrying on business from within another Member State to the extent that--

(a) the other State has implemented the Distance Marketing Directive, or

(b) a law of the other State imposes obligations corresponding to those provided for by these Regulations.

(2) If a distance contract for the supply of a financial service includes an initial service agreement followed by successive transactions, or a series of separate transactions of the same kind performed over time, these Regulations apply only to the initial service agreement.

(3) If a distance contract for the supply of a financial service does not include an initial service agreement but consists of successive transactions, or of separate transactions of similar kinds, carried out over time between the supplier and the consumer. Part 2 applies only when the first transaction is carried out. However, if no such transaction is carried out under the contract for 12 months or more after the first transaction, the next transaction is taken to be the first of a new series of transactions in which case Part 2 applies to the contract.

(4) These Regulations apply only to a distance contract for the supply of a financial service that is entered into after the commencement of these Regulations.

Certain distance contracts to be subject to certain other Regulations

5. A distance contract for the supply of a financial service that is entered into by electronic means is subject to Regulations 13 and 14 of the European Communities (Directive 2000/31/EC) Regulations 2003 ( S.I. No. 68 of 2003 ) as well as to these Regulations.

PART 2

PRE-CONTRACT REQUIREMENTS FOR DISTANCE CONTRACTS FOR THE SUPPLY OF FINANCIAL SERVICES

Supplier to give consumer certain pre-contract information

6. (1) Within a reasonable time before a consumer is bound by a distance contract for the supply of a financial service, the supplier shall give the consumer the information specified in Schedule 1.

(2) The supplier shall--

(a) make known to the consumer the commercial purpose of the contract, and

(b) give that information in a way that is clear and comprehensible, taking into account the means of communication used, and

(c) in giving that information, comply with all enactments and rules of law that--

(i) require good faith in commercial transactions, or

(ii) provide protection to those who are unable to give their consent, such as minors.

(3) For the purposes of paragraph (2)(b), information is given in a clear way only if it--

(a) is easily, directly and at all times accessible to the consumer of the financial service concerned, and

(b) can be stored by the consumer in a durable medium.

(4) In giving information about the contractual obligations that would arise under a proposed distance contract for the supply of a financial service, a supplier shall ensure that, as far as reasonably practicable, the information accurately reflects the contractual obligations that would arise under the law presumed to be applicable to the contract assuming it were to be entered into.

(5) A supplier shall keep in a durable and tamper-proof form a copy of all information that has been given to a consumer in relation to a distance contract or proposed distance contract for the supply of a financial service.

(6) A distance contract for the supply of a financial service to a consumer is not enforceable against the consumer unless this Regulation is complied with.

Special provisions applicable to information given by telephone

7. (1) If information relating to the supply of a financial service is given by means of a telephone conversation, the supplier shall ensure that the identity of the supplier and the commercial purpose of the telephone call made by the supplier are made known to the consumer at the beginning of the conversation.

(2) If, during the course of the telephone conversation, the consumer expressly waives the requirement that the supplier must give to the consumer the information specified in Schedule 1, the supplier does not have to comply with that requirement, but must nevertheless give the information specified in Schedule 2. If that happens, the supplier--

(a) shall tell the consumer that the other information about the proposed contract can be made available to the consumer if the consumer requests it, and

(b) when doing so, shall tell the consumer the nature of that information.

Additional information requirements not affected

8. If any law of the State regulating the provision of financial services requires a supplier of a financial service, before entering into a contract with a person for the provision of that service, to give information additional to that required by these Regulations, that law continues to apply to the supplier irrespective of the requirements of these Regulations.

Obligations of supplier under distance contract for supply of financial service

9. (1) Within a reasonable time before entering into a distance contract for the supply of a financial service, the supplier shall give to the consumer, in writing or in some other durable medium and accessible to the consumer--

(a) all of the terms of the contract, and

(b) all of the information given by the supplier in accordance with this Part.

(2) If--

(a) a contract for the supply of a financial service is entered into at the request of a consumer, and

(b) the means of distance communication used does not allow the information about the terms and conditions of the contract and the information referred to in Schedule 1 to be given,

the supplier shall comply with the obligation referred to in paragraph (1) immediately after the contract is entered into.

(3) If, at any time while a distance contract for the supply of a financial service is in force, the consumer so requests, the supplier shall give to the consumer the contractual terms and conditions printed on paper.

(4) If, while a distance contract for the supply of a financial service has effect, the consumer requests the supplier to change the means of distance communication with the consumer, the supplier shall comply with the request unless to do so would be inconsistent with the contract or the nature of the service.

(5) A distance contract for the supply of a financial service is not enforceable against the consumer if the supplier has failed to comply with an obligation imposed on the supplier by this Regulation.

(6) A term or condition of a distance contract for the supply of a financial service is void if it purports to impose on the consumer the burden of proving that the supplier has complied or not complied with an obligation imposed on the supplier by these Regulations.

PART 3

ENTRY INTO AND CANCELLATION OF DISTANCE CONTRACTS FOR THE SUPPLY OF FINANCIAL SERVICES

Consumer's right to cancel distance contract

10. (1) A distance contract for the supply of a financial service is cancelled when a notice of cancellation is properly given by or on behalf of the consumer to the supplier within the permitted cancellation period.

(2) A notice of cancellation is properly given for the purposes of this Regulation if it--

(a) is given in writing, or in some other durable medium that is accessible to the supplier, and

(b) clearly shows that the consumer intends to cancel the contract.

(3) Without limiting paragraph (2), a notice of cancellation is taken to have been properly given if--

(a) where the contract permits, it is given orally by or on behalf of the consumer and, as soon as practicable afterwards, the consumer gives to the supplier in writing or in some other durable medium, confirmation of the consumer's decision to cancel the contract, or

(b) it is left at the address of the supplier last known to the consumer and addressed to the supplier by name, or

(c) it is sent by certified post or registered post to the address of the supplier last known to the consumer, or

(d) it is sent by electronic means to the electronic mailing address (if any) of the supplier last known to the consumer (in which case it is to be taken to have been given at the time when it is sent).

(4) A notice of cancellation left at the address of the supplier and addressed to the supplier by name is to be taken to have been given on the day on which it was left at that address.

(5) A notice of cancellation sent by certified or registered post to the address of the supplier is to be taken to have been given at the time when it is posted.

(6) If the supplier is a body corporate, then, for the purposes of paragraph (3)(b) and (c), the address of the supplier is--

(a) the registered office of the body corporate, or

(b) the principal place of business in the State of that body.

(7) If the supplier is a partnership, then, for the purpose of paragraph (3)(b) and (c), the address of the supplier is either the principal place of business in the State of the partnership or the address of a partner or a person having control or management of the business carried on by the partnership.

(8) A notice of cancellation given in respect of a distance contract that relates to the issue of a motor vehicle insurance policy is not properly given unless the relevant certificate of insurance and insurance disc have been surrendered to the supplier of the policy.

(9) The supplier under a distance contract for the supply of a financial service may, by notice in writing given to the consumer under the contract, nominate a person to whom the consumer or an agent of the consumer can give a notice cancelling the contract.

(10) If a supplier has nominated an agent in accordance with paragraph (9), a reference in this Regulation to a supplier includes a reference to the agent nominated in accordance with that paragraph.

Period within which a consumer can withdraw from a contract without penalty

11. (1) Except as provided by paragraphs (2) and (3), the cancellation period for a distance contract for the supply of a financial service begins--

(a) on the day when the contract is entered into, or

(b) on the day on which the consumer is given the contractual terms and conditions and the information in accordance with Regulation 9(1),

whichever is the later.

(2) If a distance contract for the supply of a financial service is entered into by electronic means, the cancellation period for the contract begins--

(a) on the day on which the contract is entered into, or

(b) if the supplier has, on a later day, acknowledged by electronic means receipt of the consumer's order for the supply of the service and the consumer is able to access the acknowledgment of the order, on that later day.

(3) If a distance contract for the supply of a financial service relates to life assurance, the cancellation period for the contract begins--

(a) on the day on which the consumer is told that contract has been entered into, or

(b) on the day that the consumer receives in writing the contractual terms and conditions and the information in accordance with Regulation 9,

whichever is the later.

(4) If the supplier under a distance contract for the supply of a financial service has complied with Regulation 9(1) on or before the relevant day, then, except as provided by paragraphs (5) and (6), the cancellation period for the contract ends 14 days after the beginning of the period.

(5) If the contract concerned relates to life assurance or to a personal pension plan, the cancellation period for the contract ends 30 days after the beginning of the period.

(6) Despite paragraphs (1) to (3), the cancellation period for a distance contract for the supply of a financial service does not begin until the supplier has given to the consumer, either on paper or in some other durable medium that is accessible to the consumer, all of the information required to be given under Part 2 (including full particulars of the terms and conditions of the contract).

Exceptions to the right to cancel a distance contract for the supply of a financial service

12. (1) A consumer does not have a right to cancel a distance contract for the supply of a financial service by giving a notice of cancellation if--

(a) the price payable for the service depends on fluctuations that may occur in the financial market during the cancellation period and such fluctuations are outside the supplier's control, or

(b) the service supplied is or relates to a travel or baggage insurance policy or an insurance policy under which insurance cover is provided for less than 1 month, or

(c) the contract under which the service is supplied was entered into at the consumer's request and has been fully performed by both parties before the consumer gave notice of cancellation, or

(d) the service is or relates to the provision of a housing loan.

(2) In relation to a consumer who resides in another Member State, this Regulation does not affect any right that the consumer has under a law of that State to cancel, during a limited period, a contract relating to the provision of such a housing loan to the consumer.

(3) In this Regulation--

“housing loan” has the meaning given by section 2 of the Consumer Credit Act 1995 ( No. 24 of 1995 );

“service” includes (but is not limited to) a service relating to--

(a) the provision of foreign exchange, or

(b) a money market instrument, or

(c) the issue or transfer of transferable securities, or

(d) the issue or transfer of units in collective investment undertakings, or

(e) a financial-futures contract (including an equivalent cash-settled instrument), or

(f) a forward interest-rate agreement, or

(g) an interest-rate, currency or equity swap, or

(h) an option arising as a result of a transaction of a kind referred to in subparagraphs (a) to (g) (including an equivalent cash-settled instrument or option relating to currency or interest rates),

but does not include a service relating to the issue of a single premium life assurance contract to which Article 45(11) of the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360/1994) applies.

Certain related contracts to be automatically cancelled

13. (1) If a supplier has entered into a distance contract for the supply of a financial service to a consumer (“the primary contract”), and the supplier, or another person under an agreement with the supplier, has entered into another distance contract with the consumer for the supply of another financial service to the consumer, the other contract is, for the purposes of this Regulation, related to the primary contract, but only if--

(a) the other contract is entered into in accordance with a term of the primary contract, or

(b) the primary contract is financed or is to be financed under the other contract, or

(c) the consumer has entered into the other contract for a purpose related to the primary contract, or

(d) performance of the other contract requires performance of the primary contract.

(2) If a notice of cancellation has the effect of cancelling a primary distance contract for the supply of a financial service, then, except as provided by paragraph (3), the notice also has the effect of cancelling any related distance contract for the supply of another financial service.

(3) If a related contract is cancelled by the operation of paragraph (2) and the supplier under the related contract is a different person from the supplier under the primary contract--

(a) the supplier under the primary contract shall, as soon as practicable after being given the notice of cancellation, notify the cancellation to the supplier under the related contract, and

(b) when that notice is given, the related contract ceases to have effect.

Obligations of supplier when distance contract is cancelled

14. (1) If a distance contract for the supply of a financial service is cancelled in accordance with this Part, the supplier under the contract shall refund all money paid by or on behalf of the consumer under or in relation to the contract, less any charge imposed in accordance with Regulation 15.

(2) The reference in paragraph (1) to money paid on behalf of the consumer includes money paid on the consumer's behalf by a creditor (other than the supplier), under a personal credit agreement with the consumer. For the purposes of this paragraph, a personal credit agreement is an agreement between the consumer and another person by which the other person provides the consumer with credit for an amount of money.

(3) The supplier shall make the refund as soon as practicable (and in any case not later than 30 days) after being given notice of cancellation of a distance contract for the supply of a financial service. For the purposes of this paragraph, the period of 30 days begins on the day on which the supplier is given the notice of cancellation.

(4) On cancellation of a distance contract for the supply of a financial service contract in accordance with this Part--

(a) any instrument under which security is provided to secure the performance of the consumer's obligations under the contract is to be treated as never having effect, and

(b) if any security or other property has been lodged with the supplier or any other person to secure the performance of those obligations, the supplier or other person shall promptly (and in any case within 30 days after cancellation of the contract) return the security or property to the person who lodged it or that person's nominee.

Supplier entitled to impose charge for certain services despite cancellation of distance marketing contract

15. (1) Despite the cancellation of a distance contract for the supply of a financial service, the supplier is entitled to impose a charge for any service actually supplied in accordance with the contract. However, such a charge must not--

(a) exceed an amount that is proportionate to the value of the service that was supplied to the consumer before the notice of cancellation took effect, or

(b) be an amount that could constitute a penalty.

(2) The supplier may impose such a charge only if the consumer had already been informed of the amount of the charge in accordance with Part 2.

(3) The supplier may not impose such a charge if the supplier had, without being asked by the consumer to do so, begun to perform the contract before the end of the relevant cancellation period.

Obligations of consumer when distance marketing contract is cancelled

16. (1) On cancelling a distance contract for the supply of a financial service in accordance with this Part, the consumer shall--

(a) refund any money paid by or on behalf of the supplier under or in relation to the contract to the person who paid the money, and

(b) restore to the person from whom it was received, or that person's nominee, any other property of which the consumer has acquired possession under the contract, including, in the case of the cancellation of a motor vehicle insurance policy, the relevant certificate of insurance and insurance disc.

(2) The consumer shall make the refund and restoration as soon as practicable (and in any case not later than 30 days) after the day on which the notice of cancellation was given to the supplier.

(3) If the consumer fails to refund money, or restore property, within the period of 30 days mentioned in paragraph (2), the supplier has the same rights with respect to recovery of that money or property as the supplier would have had if the contract had not been cancelled in accordance with this Part.

Certain Regulations not to apply to certain kinds of distance marketing contracts

17. Regulations 10 to 13 do not apply to or in relation to--

(a) credit agreements cancelled under the conditions of Regulation 8(1) of the European Communities (Protection of Consumers in respect of Contracts made by means of Distance Communication) Regulations 2001 (S.I. No. 207/2001), or

(b) credit agreements cancelled in accordance with Regulation 11 of the European Communities (Contracts for Time Sharing of Immovable Property-Protection of Purchasers) Regulations 1997 (S.I. No. 204/1997).

Other laws not affected by the operation of this Part

18. Nothing in this Part affects the operation of any other enactment or statutory instrument that governs the cancellation, termination or non-enforceability of a distance contract for the supply of financial services or the right of a consumer to perform an obligation under such a contract before the time fixed by or under the contract.

PART 4

UNSOLICITED FINANCIAL SERVICES AND COMMUNICATIONS

Offence to provide unsolicited financial services to consumers

19. (1) A supplier who, having no reasonable cause to believe that there is a right to payment, in the course of carrying on a business makes a demand for payment, or asserts a present or prospective right to payment, for what the supplier knows to be an unsolicited financial service supplied to a consumer commits an offence.

(2) A supplier who, having no reasonable cause to believe there is a right to payment, in the course of any business and with a view to obtaining payment for what the supplier knows to be an unsolicited financial service supplied to a consumer--

(a) threatens to bring legal proceedings, or

(b) places, or causes to be placed, the name of the consumer on a list of defaulters or debtors, or threatens to do so, or

(c) invokes, or causes to be invoked, any other collection procedure, or threatens to do so,

commits an offence.

(3) A consumer to whom an unsolicited financial service is supplied is under no obligation to pay for the service, unless the consumer has, either in writing or in some other durable medium, notified the supplier that the consumer is willing to be supplied with the service.

(4) In this Regulation, “unsolicited financial service”, in relation to a consumer, means a financial service supplied otherwise than at the request of the consumer, but does not include a financial service so supplied if the service is supplied under a renewal of an existing contract that is in the economic interests of the consumer.

Offences by suppliers relating to communicating with consumers with respect to supply of consumer financial services

20. (1) A supplier shall not communicate with a consumer by means of--

(a) an automated calling system without human intervention, or

(b) a facsimile machine,

with a view to supplying a financial service to the consumer, unless the supplier has previously obtained the consumer's consent to the use of that means of communication.

(2) In advertising a financial service that is proposed to be supplied under a distance contract, or in communicating with a consumer in relation to the supply or a proposed supply of a financial service, a supplier shall comply with all codes made, and all directions given, by a competent authority in so far as those codes or directions impose standards on suppliers with respect to--

(a) advertising financial services, or

(b) communicating with consumers or potential consumers of those services, or

(c) protecting minors or other persons whose capacity to enter into contracts is limited.

(3) In communicating with a consumer with a view to supplying a financial service to the consumer, a supplier shall not use a means of distance communication other than one referred to in paragraph (1), unless--

(a) the supplier has obtained the consumer's consent to the use of that means, or

(b) the consumer has not manifested to the supplier an express objection to the use of that means.

(4) A supplier shall not impose on a consumer any charge that has the effect of transferring to the consumer the cost of complying with this Regulation.

(5) A supplier who contravenes paragraph (1), (3) or (4), or fails to comply with paragraph (2), commits an offence.

PART 5

SANCTIONS AND ENFORCEMENT

Offences by bodies corporate

21. If a body corporate commits an offence against these Regulations, each person who, at the time when the offence is found to have been committed, was concerned in the direction or management of the body commits a separate offence, unless the person establishes in the proceedings that--

(a) the offence by the body corporate was committed without the person's knowledge, or

(b) although the person did have that knowledge, the person took all reasonably practicable steps to prevent the commission of the offence by that body.

Penalties for offences

22. A person who is found guilty of an offence under these Regulations is liable on summary conviction--

(a) if a natural person, to a fine not exceeding €3,000 or to imprisonment for a term of not more than 12 months, or to both, or

(b) if not a natural person, to a fine not exceeding €5,000.

Who may prosecute offences under these Regulations

23. An offence under these Regulations may be prosecuted only by a competent authority or by a person authorised for that purpose by such an authority.

Judicial and administrative redress

24. (1) A competent authority may apply to the High Court for an order requiring a person--

(a) to do any thing that the person is required by these Regulations to do, or

(b) to refrain from doing any thing that the person is prohibited by these Regulations from doing.

(2) On the hearing of such an application, the High Court may grant or refuse to grant such an order.

(3) Every person who claims to have an interest in such an application is entitled to appear before and be heard at the hearing of the application.

(4) On the hearing of such an application, it is not necessary for the applicant to prove--

(a) actual loss or damage, or

(b) recklessness or negligence by the supplier.

(5) On the hearing of any such application, the onus of proving compliance with a particular requirement of these Regulations is on the person against whom the proceedings are brought.

(6) Nothing in this Regulation affects the right of a consumer to rely on the provisions. of these Regulations in any legal proceedings brought by the consumer in connection with a distance contract for the supply of a financial service.

Appointment of authorised officers

25. (1) A competent authority of the State may in writing appoint as authorised officers such and so many persons as it considers necessary for the enforcement of these Regulations.

(2) The appointing authority shall ensure that every person whom it appoints to be an authorised officer is provided with a certificate of appointment.

(3) If a person in relation to whom an authorised officer is seeking to exercise a power conferred by these Regulations requests the officer to produce the officer's certificate of appointment for the person's inspection, the officer may exercise the power only after complying with the person's request.

(4) The appointment of an authorised officer under this Regulation ends when the appointing authority revokes the appointment, or, if the appointment is for a fixed period, when the period ends.

(5) An authorised officer may exercise a power conferred by these Regulations in conjunction with the exercise of any power conferred on the officer by or under any enactment or by or under any other statutory instrument.

Powers of authorised officers

26. (1) An authorised officer may, for the purpose of obtaining any information that a competent authority may require for the purposes of these Regulations or the Distance Marketing Directive, enter at all reasonable times premises at which the officer reasonably believes that--

(a) a business involving the distance marketing of a financial service is being carried on, or

(b) records relating to such a business are being kept.

(2) An authorised officer who enters premises in accordance with paragraph (1) may do all or any of the following:

(a) search and inspect the premises;

(b) secure for later inspection the premises, or any part of the premises in which any records are kept that relate to a business involving the distance marketing of a financial service, or in which the officer reasonably believes that any such records are kept;

(c) require a person who carries on that business, or an employee of the person--

(i) to produce any such records to the officer, and

(ii) if any of those records is not in a legible form, to reproduce the record in a permanent legible form or to give to the officer such information as the person or employee reasonably requires with respect to any information contained in the record;

(d) examine and take copies of any such records (including in the case of information in a nonlegible form a copy of the information in a permanent legible form);

(e) examine and copy information from any data found or produced to the officer under this Regulation,

(f) remove and retain any such records for such period as may be reasonable for further examination;

(g) carry out or have carried out such examinations, tests, inspections and checks of any such records (including in the case of information that is not in legible form a copy of the information in permanent legible form) or any other data found there as the officer considers reasonably necessary;

(h) require a person (including a person outside the State) whom the officer believes to be in possession of information, or to have or have access to a record or thing over which the person has power or control, that may be of use to the competent authority concerned to give that information, record or thing to the officer;

(i) require any person by or on whose behalf data equipment is or has been used or any person in charge of, or otherwise concerned with the operation of, the equipment or any associated apparatus, to give the officer all reasonable assistance in relation to the operation of the equipment or apparatus or gaining access to the data stored within it.

(3) An authorised officer may also--

(a) summon, at any reasonable time, any person employed in connection with a business involving the distance marketing of a financial service to give to the officer any information that the officer reasonably requires in relation to the business and to produce to the officer any records over which the person has power or control, or

(b) communicate with a customer of the supplier of a financial service for the purpose of confirming the supply or otherwise of the service to the customer.

(4) When exercising a power conferred by these Regulations, an authorised officer may, if the officer considers it appropriate or necessary to do so, be accompanied by other authorised officers, or by one or more members of the Garda Síochána.

(5) In this Regulation, “data“ has the same meaning as in the Data Protection Act 1988 (No. 25 of 1988).

Warrant required in order to enter private dwelling

27. (1) An authorised officer shall not, without the consent of the occupier enter a private dwelling unless the officer is in possession of a warrant obtained from the District Court under this Regulation

(2) If--

(a) an occupier of a private dwelling refuses to consent to the entry of an authorised officer for the purpose of exercising a power conferred on authorised officers by these Regulations, or

(b) an authorised officer reasonably believes that a request for consent to enter such a dwelling for that purpose is likely to be refused,

an application may be made under this Regulation to the District Court to authorise entry to the dwelling.

(3) If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that information required by that or another authorised officer under these Regulations is being kept in a private dwelling, the judge may issue a warrant authorising that or another authorised officer, at any time or times within 1 month after the date of issue of the warrant--

(a) to enter the dwelling, and

(b) to exercise the powers conferred on authorised officers by these Regulations or such of those powers as are specified in the warrant.

(4) An authorised officer to whom a warrant has been issued under paragraph (3) may, if appropriate, be accompanied by other authorised officers or by one or more members of the Garda Síochána, and may use such force as is necessary to gain entry to the dwelling specified in the warrant.

Offence to obstruct authorised officers and members of the Garda Síochána

28. (1) A person who--

(a) without reasonable excuse, obstructs or interferes with an authorised officer in the exercise of the officer's powers under these Regulations, or

(b) gives to an authorised officer information that the person knows to be false or misleading, or

(c) without reasonable excuse, does not comply with any reasonable request or requirement made by an authorised officer under these Regulations

commits an offence.

(2) A reference in paragraph (1) to an authorised officer includes a member of the Garda Síochána who is accompanying the officer in accordance with Regulation 26(4) or 27(4).

PART 6

SUPPLEMENTARY PROVISIONS

Obligations of providers of payment cards

29. (1) The provider of a payment card shall ensure that the contract with the consumer relating to the payment card provides--

(a) for relevant payments to be recredited or returned to the consumer whenever the card is used fraudulently, and

(b) for the consumer not to be liable for transactions entered into without the consumer's authorisation after the consumer has informed the card provider of the loss, theft or misappropriation of the card.

(2) The provider of a payment card shall also ensure that facilities are available to enable the consumer to immediately notify the provider if the card is lost, stolen or misappropriated.

(3) If the provider of a payment card fails to comply with paragraph (2), the consumer is not liable for the financial consequences resulting from the loss, theft or misappropriation of the card.

(4) If, in any proceedings, the consumer alleges that the consumer's payment card has been used without the consumer's authorisation, the onus is on the provider of the card to prove that the consumer authorised its use.

(5) A provider of a payment card who fails to comply with paragraph (1) or (2) of this Regulation commits an offence.

(6) In this Regulation, “payment card” means a card issued to a consumer by means of which the consumer, or some other person acting with the consumer's authority, can obtain goods, services or cash that, either at the time of the transaction or subsequently, are charged to an account kept in the name of the consumer.

Consumer's rights cannot be waived

30. (1) Any purported waiver by a consumer of a right conferred on consumers by these Regulations is void.

(2) A term contained in a distance contract for the supply of a financial service is void in so far as the term is inconsistent with these Regulations.

(3) A right conferred on consumers by these Regulations cannot be excluded or diminished by choosing as the law applicable to a distance contract for the supply of a financial service the law of a country or territory that is not a Member State. This paragraph applies only if the contract is closely connected with a Member State.

Resolution by Financial Services Ombudsman of disputes arising in connection with distance contracts for the supply of financial services

31. (1) The Financial Services Ombudsman has jurisdiction to investigate and adjudicate a dispute between a consumer and a supplier arising in connection with a distance contract for the supply of a financial service.

(2) When investigating and adjudicating such a dispute, the Financial Services Ombudsman may co-operate with and exchange information with persons who perform in other Member States functions similar to those performed by that Ombudsman.

(3) In this Regulation, “Financial Services Ombudsman” means the Financial Services Ombudsman who for the time being is holding office, or is acting, as such under Part VIIB of the Central Bank Act 1942 (No. 22 of 1942).

Co-operation between competent authorities of the State and competent authorities of other Member States.

32. (1) A competent authority of the State may enter into an arrangement with a competent authority of another Member State for the performance by the authority of that other Member State of functions imposed on, and the exercise of powers conferred on, the competent authority of the State by these Regulations. A function performed by a competent authority of another Member State under an arrangement entered into under this paragraph with a competent authority of the State is, for the purposes of these Regulations, taken to have been performed by that competent authority.

(2) A competent authority of the State may also enter into arrangements with a competent authority of another Member State for the performance by it of functions imposed, and the exercise of powers conferred, on the competent authority of the other State by a law of that State corresponding to these Regulations.

(3) A competent authority of the State may, on being asked to do so by a competent authority of another Member State, give information required by the competent authority of the other Member State for the purposes of these Regulations or of a law of that other State corresponding to these Regulations.

SCHEDULE 1

[ REGULATION 6 ]

INFORMATION TO BE GIVEN BY SUPPLIERS BEFORE ENTERING INTO DISTANCE CONTRACT FOR THE SUPPLY OF A FINANCIAL SERVICE TO A CONSUMER

The following is the information that a supplier must give before entering into a distance contract for the supply of a financial service to a consumer:

(a) the identity and the main business of the supplier, the geographical address at which the business of the supplier is established and any other geographical address that may be relevant to the consumer's relationship with the supplier;

(b) if the consumer resides in another Member State and the supplier has a representative in that State:

(i) the identity of that representative, and

(ii) the geographical address relevant to the consumer's relations with that representative;

(c) if the consumer's dealings are with a person (other than the supplier) who is acting as an advisor or agent--

(i) the person's identity and the capacity in which the person is acting with respect to the consumer, and

(ii) the person's physical address so far as it is relevant for the consumer's relations with that person, and

(iii) if the person has an electronic mailing address, that address;

(d) if the supplier is registered as a company or as a business in a public register--

(i) particulars of the register in which the supplier is registered and the supplier's registration number (if any), or

(ii) if there is no such number, an equivalent means of identifying the supplier in that register;

(e) if the supplier's business is subject to an authorisation scheme, the particulars of the relevant supervisory authority;

(f) if the supplier is a member of a profession regulated by law, particulars specifying or identifying--

(i) any professional body or similar institution of which the supplier is a member, and

(ii) the professional designation of the supplier and the Member State where the designation has been conferred, and

(iii) a reference to the applicable rules governing the profession in that Member State and to where those rules can be accessed;

(g) if the supplier is registered for value-added tax, the registration number assigned to the supplier in accordance with section 9 of the Value-Added Tax Act 1972 ( No. 22 of 1972 );

(h) a description of the main characteristics of the financial service to be supplied by the supplier;

(i) the total price to be paid by the consumer to the supplier for the financial service, including all related fees, charges and expenses and all taxes paid through the supplier or, if an exact price cannot be specified, the basis for calculating the price so as to enable the consumer to verify it;

(j) whenever relevant, a notice indicating that--

(i) the financial service is related to instruments involving special risks related to their specific features or the operations to be executed or whose price depends on fluctuations in the financial markets outside the supplier's control, and

(ii) historical performances are no indicators for future performances;

(k) notice of the possibility that other taxes or costs may exist that are neither paid by the supplier nor imposed by the supplier;

(l) any limitation of the period for which information given by the supplier is valid;

(m) the arrangements for payment and performance that will apply under the contract;

(n) if an additional charge is or is to be imposed on the consumer for using a particular means of distance communication in connection with the contract, the amount of the charge;

(o) whether or not there is or will be a right to cancel the contract in accordance with these Regulations, and if there is such a right--

(i) the period during which it can be exercised, and

(ii) the conditions under which the right can be exercised (including information about any charge that the consumer may be required to pay in accordance with Regulation 15), and

(iii) the consequences of not exercising that right;

(p) the minimum duration of the contract in the case of a financial service that is to be performed on a continuing or recurring basis;

(q) any rights the parties may have to terminate the contract early or unilaterally because of the terms of the contract and any penalty that may be imposed under the contract for early termination;

(r) practical instructions for exercising the right to cancel the contract (which instructions must include the address to which notification of cancellation must be sent);

(s) the Member State the laws of which the supplier adopts as a basis for establishing relations with the consumer before the contract is entered into;

(t) any term of the contract dealing with the question of what law is to apply to the contract or which court has jurisdiction with respect to the determination of disputes arising under the contract;

(u) the language or languages in which the contractual terms and conditions and the prior information required by this Schedule are given;

(v) the language or languages in which the supplier, with the agreement of the consumer, undertakes to communicate with the consumer while the contract remains in force;

(w) whether or not there is an out-of-court complaint and redress process for the consumer and, if there is, the procedure for gaining access to it;

(x) the existence of guarantee funds or other compensation arrangements, except to the extent that they are required by the European Communities (Deposit Guarantee Schemes) Regulations 1995 ( S.I. No. 168 of 1995 ) or the Investor Compensation Act 1998 (No. 37 of 1998).

SCHEDULE 2

[ REGULATION 7 ]

INFORMATION TO BE GIVEN BY SUPPLIER BEFORE ENTERING INTO DISTANCE MARKETING CONTRACT BY TELEPHONE

The following is the information that must be given by a supplier before entering into a distance contract by telephone for the supply of a financial service to a consumer:

(a) the identity of the person in contract with the consumer and that person's relationship to the supplier;

(b) a description of the main characteristics of the service;

(c) the total price to be paid to the supplier for the service (including all taxes paid through the supplier) or, when an exact price cannot be specified, the basis for calculating the price so that the consumer can verify it.

(d) if taxes or charges payable in respect of the contract are not imposed by or attributable to the supplier, details of those taxes or charges;

(e) whether or not there is or will be a right to cancel the contract in accordance with these Regulations, and if there is such a right--

(i) the period during which it can be exercised, and

(ii) the conditions under which the right can be exercised (including any charge that the consumer may be required to pay in accordance with Regulation 15), and

(iii) the consequences of not exercising that right.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations is to give effect to the main provisions of Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC. The Regulations apply to the marketing and supply of financial services to consumers under organised distance marketing schemes. For the purposes of the regulations a consumer is regarded as an individual who is acting outside his or her trade business or profession and financial service includes any financial product or service of a banking, credit, insurance, personal pension, investment or payment nature. Key provisions deal with the information which a consumer must be given before entering into a contract; the consumer's right to cancel a range (but not all types) of contracts once entered into; obligations on providers of payment cards; the prohibition of the provision of unsolicited financial services to consumers and restrictions in relation to unsolicited communications. Provision is also made for sanctions and enforcement.