518.This note describes the implementation in the Consumer Rights Act 2015 of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees.(50) The Directive requires that goods sold to consumers must be in conformity with the contract and consumers have certain remedies if goods are not in conformity with the contract. The Directive also requires that guarantees provided free of charge alongside goods be legally binding.
519.The deadline for implementing the Directive passed on 1 January 2002. The legislation currently implementing the Directive can be found in the Sale and Supply of Goods to Consumers Regulations 2002 (SI 2002/3045) and in the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 and the Supply of Goods (Implied Terms) Act 1973 each of which SI 2002/3045 amended. The Consumer Rights Act 2015 repeals and replaces the provisions of those pieces of legislation which currently implement the Directive.
520.UK law has long provided that goods must meet certain requirements, which are implied into contracts for goods, and consumers have remedies if the requirements are not met. The Directive was implemented by amending and supplementing pre-existing law. The Act goes beyond the minimum requirements of the Directive in a number of respects, as it reflects both the Directive and embedded UK law.
521.The table below describes the main substantive provisions of the Act implementing the Directive.
| Article | Objective | Implementation |
|---|---|---|
| 1.1 | Includes scope of application. | Section 3 |
| 1.2 | Definitions of key terms. | Definitions for the Act are set out in sections 2 and 59 and include definitions which adequately implement the terms defined by the Directive. Section 23 contains the definition of ‘repair’. Section 30 contains the definition of ‘guarantee’ and other terms used in that section. |
| 2.1-2.3 | Goods to conform with the contract for sale. | Sections 9, 10, 11, 13 and 14; section 19(1) |
| 2.4 | Circumstances where the seller is not to be bound by public statements about the goods. | Section 9(7) |
| 2.5 | Lack of conformity resulting from incorrect installation of the consumer goods to be deemed to be equivalent to lack of conformity of the goods. | Section 15 |
| 3.1-3.5 | Seller to be liable to the consumer for any lack of conformity which exists at the time the goods were delivered, and to make specified remedies available to the consumer, as follows: (i) Repair or replacement, in either case free of charge, unless impossible or disproportionate; (ii) Appropriate reduction of the price or rescission of the contract, if the consumer is entitled to neither repair nor replacement, or the seller has not provided repair or replacement within a reasonable time or without significant inconvenience to the consumer. | Sections 19, 23, 24 |
| 3.6 | Rescission unavailable if lack of conformity is minor. | Not implemented in the UK |
| 4 | Right of redress for seller as against persons liable to the seller in the contractual chain. | No change to UK law is required to implement Article 4 |
| 5.1 | Seller to be held liable where the lack of conformity becomes apparent within two years as from delivery of the goods. | No change to UK law is required to implement Article 5.1. The UK relies instead on its pre-existing rules on limitation of actions. |
| 5.2 | Consumers may be required to notify the seller of a lack of conformity with 2 months of its appearance. | Not implemented in the UK |
| 5.3 | Lack of conformity appearing within first 6 months to be deemed to have been present at time of deliver unless proven otherwise. | Section 19(14) – (15) |
| 6 | Guarantees. | Section 30 |
| 7.1 | Contractual terms which waive the rights under the Directive are not to be binding. | Section 31 |
| 7.2 | Choice of law of a non-EU State not to deprive consumer of protection. | Section 32 |
| 8 | Rights under the Directive to be exercised without prejudice to national law. Option to maintain stricter national legislation. | As explained above, the Directive has been implemented within pre-existing UK rules. |
522.This note describes the implementation in the Consumer Rights Act 2015 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.(51) The Directive requires that unfair terms in contracts concluded between a trader and a consumer are not binding.
523.The deadline for implementing the Directive passed on 31 December 1994. The legislation currently implementing the Directive can be found in the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083). The Consumer Rights Act 2015 repeals and replaces the provisions of those Regulations.
524.The Act goes beyond the minimum requirements of the Directive in a number of respects:
application to all consumer contract terms, whether or not individually negotiated;
application to trader’s notices directed at consumers, whether or not incorporated in a consumer contract;
contracts and notices excluding trader’s liability in negligence for death or personal injury are not binding;
terms on main subject matter and price are exempt from assessment of fairness only if transparent and prominent;
three further terms added to ‘grey list’.
525.The table below describes the main substantive provisions of the Act implementing the Directive.
| Article | Objective | Implementation |
|---|---|---|
| 1.1 | Defines scope of application | Section 61 |
| 1.2 | Exclusion of mandatory statutory provisions | Section 73 |
| 2 | Definitions of key terms | Sections 61, 76 and 2 |
| 3.1 | Fairness test | Section 62 |
| 3.2 | Terms not regarded as individually negotiated | No implementation required (section 61 applies to terms whether individually negotiated or not). |
| 3.3 | Indicative and non-exhaustive ‘grey list’ of terms that may be unfair, as set out in Annex to Directive | Section 63 and Schedule 2 |
| 4.1 | Circumstances to consider in assessing fairness. | Section 62 |
| 4.2 | Exception from fairness assessment for terms on main subject matter and price | Section 64 |
| 5 | Terms to be in plain and intelligible language | Sections 68 and 69 |
| 6.1 | Unfair terms not to be binding | Sections 62(1), 67 and 72 |
| 6.2 | Choice of law of a non-EU State not to deprive consumer of protection | Section 74 |
| 7 | Effective enforcement | Section 70 and Schedule 3; Part 3 of Schedule 5 in addition to enforcement by public bodies under Part 8 of the Enterprise Act 2002, and private actions brought by individuals. |
| 8 | Option to retain stricter national legislation | See paragraph 524 above. |
| 9 | Commission review of Directive | No implementation required. |
| 10 | Implementation by 31 December 1994 | No implementation required in Act. |
| 11 | Directive addressed to Member States | No implementation required. |
526.This note describes the implementation in the Consumer Rights Act 2015 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council.
527.The Directive covers
Information which traders should provide to consumers
Cancellation rights and responsibilities for distance and off-premises sales
Delivery and passing of risk provisions
Measures to prevent hidden costs
528.The regulations that, alongside the Consumer Rights Act 2015, implement the Directive can be found in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134). A full transposition note for the Directive was published alongside the regulations and can be found at www.gov.uk/bis. The Act replaces a small number of provisions of these Regulations, as set out below, for coherence with related measures in the Act, in accordance with the Government’s aim to ensure that regulation is simple and coherent as possible.
529.The provisions in the Act listed below reflect those in the Directive.
530.The two areas implemented in the Act relate to pre-contractual information and to the delivery of goods and passing of risk. Pre-contractual information, is made a term of the contract. In addition, the Act implements rules for the timing of delivery for goods and regarding when responsibility transfers from the trader to the consumer for goods delivered. The table below describes the transposition in the Act of the relevant provisions of the Directive.
| Article | Objective | Implementation |
|---|---|---|
| PRE-CONTRACTUAL INFORMATION | ||
| 6.5 | Information provided to be incorporated into contract | Sections 11(4)-(6), 12, 36(3)-(4), 37 50(3)-(4) |
| DELIVERY OF GOODS AND PASSING OF RISK | ||
| 17.1 | Scope of application of Articles 18 and 20, to sales contracts only. | Sections 5, 28(1) and 29(1) |
| 18.1 | Default rule for sales contracts of delivery within 30 days | Section 28(3) |
| 18.2 | If late delivery, consumer to nominate a further delivery period. Consumer may terminate contract if second failure. | Section 28(5)-(8) |
| 18.3 | Trader to reimburse all payments to consumer on termination | Section 28(9)-(10) |
| 18.4 | Consumer may have other remedies in national law | Section 28(10)-(13) |
| 20 | For sales contracts, risk of loss or damage passes to consumer when consumer acquires possession of goods | Section 29 |
| GENERAL PROVISIONS | ||
| 23.1 | Adequate and effective enforcement | In relation to the provisions above, sections 11(4)-(6), 12, 19, 28, 36(3)-(4), 37, 38, 42, 50 and 54 of the Consumer Rights Act 2015. A future Order providing that the regime under Part 8 of the Enterprise Act 2002 for public bodies and consumer bodies to enforce consumer law applies in relation to the relevant provisions of the Act. |
| 24.1 | Effective, proportionate and dissuasive penalties for enforcement. | In relation to the provisions above, sections 11(4)-(6), 12, 19, 28, 36(3)-(4), 37, 38, 42, 50 and 54 of the Consumer Rights Act 2015. A future Order providing that the regime under Part 8 of the Enterprise Act 2002 for public bodies and consumer bodies to enforce consumer law applies in relation to the relevant provisions of the Act |
531.This note describes how the Consumer Rights Act 2015 gives effect to key Directives that require effective enforcement measures to be implemented with regard to consumer law.
532.These include Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market(52); Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising(53); Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on General Product Safety(54); Directive 2004/22/EC of the European Parliament and of the Council of 31 March 2004 on measuring instruments(55); and Council Directive 76/211/EEC of 20 January 1976 on the approximation of the laws of the Member States relating to the making-up by weight or by volume of certain prepackaged products.(56)
533.The tables below describe how the provisions of the Act implement these key Directives.
| Article | Objective | Implementation |
|---|---|---|
| Annex I, Paragraphs 5 - 6 | Establishes the conformity assessment of measuring instruments by competent authorities to ensure the instruments are correct and traceable for the purposes of fair trading and protecting the consumer. | Parts 3 and 4 of Schedule 5 confer powers in relation to civil and criminal enforcement. |
| Article | Objective | Implementation |
|---|---|---|
| 8.1 | Establishes the principal measures that competent authorities are to be able to take in respect of unsafe products, including the obtaining of information and samples. | Parts 3 and 4 of Schedule 5 confer powers in relation to civil and criminal enforcement. |
| Article | Objective | Implementation |
|---|---|---|
| 18.1 | Requires Member States to take all appropriate measures to ensure that measuring instruments that are subject to legal metrological control but do not comply with an applicable provision of the Directive are neither placed on the market nor put into use. | Parts 3 and 4 of Schedule 5 confer powers in relation to civil and criminal enforcement. |
| Article | Objective | Implementation |
|---|---|---|
| 11.1, paragraph 1 | Requires Member States to ensure that adequate and effective means exist to combat unfair commercial practice in order to enforce the Directive. | Parts 3 and 4 of Schedule 5 confer powers in relation to civil and criminal enforcement. |
| Article | Objective | Implementation |
|---|---|---|
| 5.1, paragraph 1 | Requires Member States to ensure that adequate and effective means exist to combat misleading advertising and enforce compliance with the provisions on comparative advertising in the interests of traders and competitors. | Parts 3 and 4 of Schedule 5 confer powers in relation to civil and criminal enforcement. |
OJ L 171, 7/7/1999, p.12.
OJ L 95, 21/04/1993, p.29.
Amending Directives 84/450/EEC, 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (Unfair Commercial Practices Directive), OJ L 149, 11.6.2005
OJ L 376, 27/12/2006
OJ L 11, 15/01/2002
OJ L 135, 30/04/2004
OJ L 46, 21/2/1976
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