The Consumer Rights (Payment Surcharges) Regulations 2012

Citation and commencement U.K.

1.—(1) These Regulations may be cited as the Consumer Rights (Payment Surcharges) Regulations 2012 and come into force on 6th April 2013.

(2) [F1 Regulation 4 (fees a trader must not charge a consumer) applies] in relation to contracts entered into on or after that date.

[F2 (3) Regulation 6A applies in relation to contracts entered into after the date on which the Payment Services Regulations 2017 were made.]

Textual Amendments

F1 Words in reg. 1(2) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(2)(a) (with reg. 3)

F2 Reg. 1(3) inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(2)(b) (with reg. 3)

“Consumer” and “trader” U.K.

2.  In these Regulations—

“consumer” means an individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession;

[F3 “trader” means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.]

Textual Amendments

F3 Words in reg. 2 substituted (with application in accordance with reg. 1(2) of the amending S.I.) by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (S.I. 2013/3134), reg. 1(1), Sch. 4 para. 15(2) (with reg. 6)

Other definitions U.K.

3.  In these Regulations—

[F4 “business” includes the activities of any government department or local or public authority;]

[F5 “CMA” means the Competition and Markets Authority;]

“court” in relation to England and Wales and Northern Ireland means a county court or the High Court, and in relation to Scotland means the sheriff or the Court of Session;

“digital content” means data which are produced and supplied in digital form;

“district heating” means the supply of heat (in the form of steam or hot water or otherwise) from a central source of production through a transmission and distribution system to heat more than one building;

“goods” means any tangible movable items, but that includes water, gas and electricity if and only if they are put up for sale in a limited volume or a set quantity;

F6 ...

[F7 “payee”, “payer”, “payment instrument”, “payment service” and “payment service provider” have the meanings given in regulation 2(1) of the Payment Services Regulations 2017 ;]

“sales contract” means a contract under which a trader transfers or agrees to transfer the ownership of goods to a consumer and the consumer pays or agrees to pay the price [F8 , including any contract that has both goods and services as its object];

“service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.

Textual Amendments

F4 Words in reg. 3 inserted (with application in accordance with reg. 1(2) of the amending S.I.) by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (S.I. 2013/3134), reg. 1(1), Sch. 4 para. 15(3)(a) (with reg. 6)

F5 Words in reg. 3 inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) (No. 2) Order 2014 (S.I. 2014/549), art. 1(1), Sch. 1 para. 48(2)(b) (with art. 3)

F6 Words in reg. 3 omitted (1.4.2014) by virtue of The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) (No. 2) Order 2014 (S.I. 2014/549), art. 1(1), Sch. 1 para. 48(2)(a) (with art. 3)

F7 Words in reg. 3 inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(3) (with reg. 3)

F8 Words in reg. 3 substituted (with application in accordance with reg. 1(2) of the amending S.I.) by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (S.I. 2013/3134), reg. 1(1), Sch. 4 para. 15(3)(b) (with reg. 6)

[F9 Fees a trader must not charge a consumer ] U.K.

4.  A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.

Textual Amendments

F9 Reg. 4 heading substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(4) (with reg. 3)

Contracts where [F10 regulation 4] applies U.K.

5.—(1) Regulation 4 applies only if the use is as a means for the consumer to make payments for the purposes of a contract with the trader, and only to the extent that that contract—

(a) is a sales or service contract, or a contract (other than a sales or service contract) for the supply of water, gas, electricity, district heating or digital content, and

(b) is not an excluded contract.

(2) An excluded contract is a contract—

(a) for social services, including social housing, childcare and support of families and persons permanently or temporarily in need, including long-term care;

(b) for health services provided, whether or not via healthcare facilities, by health professionals to patients to assess, maintain or restore their state of health, including the prescription, dispensation and provision of medicinal products and medical devices (and “health professionals” has the meaning given by Article 3(f) of Directive 2011/24/EU of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare)M1 [F11 as it had effect immediately before IP completion day];

(c) for gambling within the meaning of the Gambling Act 2005 M2 (which includes gaming, betting and participating in a lottery);

(d) for services of a banking, credit, insurance, personal pension, investment or payment nature;

(e) for the creation of immovable property or of rights in immovable property;

(f) for rental of accommodation for residential purposes;

(g) for the construction of new buildings, or the construction of substantially new buildings by the conversion of existing buildings;

[F12 (h) which is a regulated contract within the meaning of the Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010 ]

(i) for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, and which are supplied by a trader on frequent and regular rounds to the consumer's home, residence or workplace;

(j) concluded by means of automatic vending machines or automated commercial premises;

(k) concluded with a telecommunications operator through a public telephone for the use of the telephone;

(l) concluded for the use of one single connection, by telephone, internet or fax, established by a consumer;

(m) under which goods are sold by way of execution or otherwise by authority of law.

Textual Amendments

F10 Words in reg. 5 heading substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(5) (with reg. 3)

F11 Words in reg. 5(2)(b) inserted (31.12.2020) by The Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1326), regs. 1(3), 7(2)(a) (as amended by S.I. 2020/1347, regs. 1(3), 4(5)); 2020 c. 1, Sch. 5 para. 1(1)

F12 Reg. 5(2)(h) substituted (31.12.2020) by The Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1326), regs. 1(3), 7(2)(b); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M1 OJ L 88, 4.4.2011, p. 45.

M2 2005 c.19.

Temporary exemption for micro-businesses and new businesses U.K.

6.—(1) During the exemption period, regulation 4 does not apply if the trader is acting for purposes relating to the trader's business, and the business is—

(a) an existing micro-business, or

(b) a new business.

(2) The Schedule defines those kinds of business, and the exemption period.

[F13 Fees any payee must not charge any payer U.K.

6A.— (1) A payee must not charge a payer any fee in respect of payment by means of—

(a) a payment instrument which—

(i) is a card-based payment instrument as defined in Article 2(20) of Regulation (EU) 2015/751 of the European Parliament and of the Council of 29th April 2015 on interchange fees for card-based payment transactions ; and

(ii) is not a commercial card as defined in Article 2(6) of that Regulation; or

(b) a payment instrument which—

(i) is not a card-based payment instrument as defined in Article 2(20) of that Regulation; and

(ii) would not fall within the definition of commercial card at Article 2(6) of that Regulation if, in that definition, the reference to any card-based payment instrument were to any payment instrument and the reference to such cards were to such payment instruments; or

(c) a payment service to which Regulation (EU) 260/2012 of the European Parliament and of the Council of 14th March 2012 establishing technical and business requirements for credit transfers and direct debits in euro applies.

(2) A payee receiving a payment by means of a payment instrument must not charge the payer, in respect of such payment, a fee which exceeds the costs borne by the payee for the use of that specific payment instrument.

Textual Amendments

F13 Regs. 6A, 6B inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(6) (with reg. 3)

Application of regulation 6A U.K.

6B.— (1) Regulation 6A applies only if the payment service provider of the payer or the payment service provider of the payee is located in [F14 the United Kingdom].

(2) Where the payment service providers of both the payee and the payer are located in [F14 the United Kingdom], regulation 6A(1) and (2) apply.

(3) Where the payment service provider of either the payer or the payee, but not both, is located in [F14 the United Kingdom], regulation 6A(2) applies but regulation 6A(1) does not apply.]

Textual Amendments

F13 Regs. 6A, 6B inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(6) (with reg. 3)

F14 Words in reg. 6B substituted (31.12.2020) by The Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1326), regs. 1(3), 7(3); 2020 c. 1, Sch. 5 para. 1(1)

Complaints U.K.

7.—(1) It is the duty of an enforcement authority to consider any complaint made to it about a contravention of regulation 4 [F15 or 6A], unless—

(a) the complaint appears to the authority to be frivolous or vexatious; or

(b) another enforcement authority has notified the [F16 CMA] that it agrees to consider the complaint.

(2) If an enforcement authority has notified the [F16 CMA] as mentioned in paragraph (1)(b), that authority is under a duty to consider the complaint.

(3) An enforcement authority which is under a duty to consider a complaint must—

(a) decide whether or not to make an application under regulation 8, and

(b) give reasons for its decision.

(4) In deciding whether or not to make an application, an enforcement authority may, if it considers it appropriate to do so, have regard to any undertaking given to it or another enforcement authority by or on behalf of any person as to compliance with regulation 4 [F17 or 6A] [F18 and to any enforcement action taken under Part 8 of the Enterprise Act 2002].

(5) The following are enforcement authorities for the purposes of these Regulations—

(a) every local weights and measures authority in Great Britain (within the meaning of section 69 of the Weights and Measures Act 1985 M3 );

(b) the Department of Enterprise, Trade and Investment in Northern Ireland.

Textual Amendments

F15 Words in reg. 7(1) inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(7) (with reg. 3)

F16 Word in reg. 7 substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) (No. 2) Order 2014 (S.I. 2014/549), art. 1(1), Sch. 1 para. 48(3) (with art. 3)

F17 Words in reg. 7(4) inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(7) (with reg. 3)

F18 Words in reg. 7(4) inserted (6.4.2013) by The Enterprise Act 2002 (Part 8 Domestic Infringements) Order 2013 (S.I. 2013/761), arts. 1(1), 3

Marginal Citations

M3 1985 c.72. Section 69 was amended by paragraph 75 of Schedule 16 to the Local Government (Wales) Act 1994 (c.19) and by paragraph 144 of Schedule 13 to the Local Government etc (Scotland) Act 1994 (c.39).

Orders to secure compliance U.K.

8.—(1) An enforcement authority may apply for an injunction, or in Scotland an interdict or any other appropriate relief or remedy, against any person who appears to the authority to be responsible for a contravention of regulation 4 [F19 or 6A].

(2) The court on an application under this regulation may grant an injunction, interdict or order on such terms as it thinks fit to secure compliance with regulation 4 [F20 or 6A].

Textual Amendments

F19 Words in reg. 8(1) inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(7) (with reg. 3)

F20 Words in reg. 8(2) inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(7) (with reg. 3)

Notification of undertakings and orders to the [F21 CMA] U.K.

9.  An enforcement authority must notify the [F22 CMA] —

(a) of any undertaking given to it by or on behalf of any person who appears to it to be responsible for a contravention of regulation 4 [F23 or 6A];

(b) of the outcome of any application made by it under regulation 8, and of the terms of any undertaking given to the court or of any order made by the court;

(c) of the outcome of any application made by it to enforce a previous order of the court.

Textual Amendments

F21 Word in reg. 9 heading substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) (No. 2) Order 2014 (S.I. 2014/549), art. 1(1), Sch. 1 para. 48(4) (with art. 3)

F22 Word in reg. 9 substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) (No. 2) Order 2014 (S.I. 2014/549), art. 1(1), Sch. 1 para. 48(4) (with art. 3)

F23 Words in reg. 9(a) inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(7) (with reg. 3)

[F24 Right] of redress U.K.

10.  Where a trader charges a fee in contravention of regulation 4 [F25 or any payee charges a fee in contravention of regulation 6A]—

(a) any provision of a contract requiring the [F26 payment of] the fee is unenforceable to the extent [F27 that the charging of the fee contravenes regulation 4 or 6A], and

(b) the contract for the purposes of which the payment is made is to be treated as providing for the [F28 fee to be repaid to the extent that the charging of the fee contravenes regulation 4 or 6A].

Textual Amendments

F24 Word in reg. 10 heading substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(8)(a) (with reg. 3)

F25 Words in reg. 10 inserted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(8)(b) (with reg. 3)

F26 Words in reg. 10(a) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(8)(c)(i) (with reg. 3)

F27 Words in reg. 10(a) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(8)(c)(ii) (with reg. 3)

F28 Words in reg. 10(b) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 12(8)(d) (with reg. 3)

Jo Swinson

Minister for Employment Relations and Consumer Affairs

Department for Business, Innovation and Skills