PART 1General
Citation and commencement1
1
These Regulations may be cited as the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015.
2
Parts 1 to 3 come into force on 7th April 2015.
3
Parts 4 and 5 come into force on F41st October 2015.
Review2
1
The Secretary of State must from time to time—
a
carry out a review of these Regulations F11and the amendments to legislation made by Parts 3 and 4 of the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015,
b
set out the conclusions of the review in a report, and
c
publish the report.
2
In carrying out the review, the Secretary of State must, so far as is reasonable, have regard to how Directive 2013/11/EU of the European Parliament and of the Council of 21st May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/ECM1F12, and Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC are implemented in other Member States.
3
The report must in particular—
a
set out the objectives intended to be achieved by these Regulations F13and the amendments to legislation made by Parts 3 and 4 of the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015,
b
assess the extent to which those objectives have been achieved, and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved in a way that imposes less regulation.
4
The first report under this regulation must be published before the end of the period of five years beginning with the day on which Parts 1 to 3 of these Regulations come into force.
5
Reports under this regulation are afterwards to be published at intervals not exceeding five years.
“Consumer” and “trader”3
In these Regulations—
“consumer” means an individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession;
“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.
“ADR entity”4
In these Regulations “ADR entity” means a F1person whose name appears on a list maintained in accordance with regulation 10.
Other definitions5
In these Regulations—
“ADR applicant” means a F1person who wishes to become an ADR entity;
F14“ADR official” means an individual who (solely or with other persons) is involved in the provision of alternative dispute resolution procedures offered by an ADR entity, or ADR applicant, whether as a case handler or in a management capacity;
“competent authority” means the Secretary of State or a F1person specified in the first column of Part 1 or Part 2 of Schedule 1;
F15“complete complaint file” means all the relevant information relating to a dispute
“cross-border dispute” means a dispute concerning contractual obligations arising from a sales contract or a service contract where, at the time the consumer orders the goods or services, the trader is established in the United Kingdom and the consumer is resident in another member State;
“domestic dispute” means a dispute concerning contractual obligations arising from a sales contract or a service contract where, at the time the consumer orders the goods or services, the consumer is resident, and the trader is established, in the United Kingdom;
“durable medium” means paper or email, or any other medium that—
- a
allows information to be addressed personally to the recipient,
- b
enables the recipient to store the information in a way accessible for future reference for a period that is long enough for the purposes of the information, and
- c
allows the unchanged reproduction of the information stored;
- a
F15“EU listed body” means a person, other than an ADR entity, whose name appears on a list referred to in Article 20(2) of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC;
“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, 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;
“single point of contact” means the person designated in regulation 17.
Interpretation6
In regulation 5 a trader is “established”—
a
if the trader is an individual, where the trader has his or her place of business;
b
if the trader is a company or other legal person or an association of persons, where it has its statutory seat, central administration or place of business, including a branch, agency or any other establishment.
Contracts to which these Regulations do not apply7
These Regulations do not apply to a contract to the extent that it is for health services provided 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) M2.
PART 2Competent Authorities and ADR Entities
Functions and designation of competent authorities8
1
A competent authority must perform the functions set out in this Part.
2
Each F1person specified in the first column of Part 1 of Schedule 1 is—
a
a competent authority for the purposes of these Regulations, and
b
the relevant competent authority in relation to alternative dispute resolution services offered by the F1person specified alongside it in the second column of Part 1 of Schedule 1.
3
Subject to paragraph (2), each F1person specified in Part 2 of Schedule 1 is—
a
a competent authority for the purposes of these Regulations in relation to the area for which it has regulatory responsibility or any area for which it has oversight under any enactment, and
b
the relevant competent authority in relation to an ADR entity or ADR applicant which offers alternative dispute resolution services in that area.
4
The Secretary of State is the relevant competent authority in relation to—
a
alternative dispute resolution services offered by the Pensions Ombudsman, and
b
an ADR entity or ADR applicant which offers alternative dispute resolution services in an area other than one referred to in paragraph (3).
Assessment of application to become an ADR entity9
1
An ADR applicant may apply to the relevant competent authority to become an ADR entity.
2
The ADR applicant must supply with an application—
a
the information in Schedule 2; and
b
such other information as the competent authority may require in order to assess whether the ADR applicant meets the requirements in Schedule 3.
3
The information referred to in paragraph (2) must be provided in such form as the competent authority may require.
4
The competent authority may only approve an application if it is satisfied that—
F16a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
the requirements in Schedule 3—
i
have been met by the ADR applicant, or
ii
will be met by the ADR applicant within a reasonable period of time of the application being granted.
5
Where—
a
an enactment contains the power for a competent authority to impose additional requirements which go beyond those set out in Schedule 3, and
b
such requirements, including issuing binding solutions on traders, are imposed for the purpose of ensuring a higher level of consumer protection,
such requirements shall be deemed to be included in Schedule 3 for the purposes of this regulation, regulations 12 and 13(1) and (2) and paragraph (i) of Schedule 2.
6
Where an application is approved, the competent authority must as soon as is reasonably practicable give written notice to the ADR applicant.
7
Where an application is rejected, the competent authority must as soon as is reasonably practicable give written notice of this fact to the ADR applicant, which must include the grounds on which it has rejected the application.
F178
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Listing of ADR entities10
1
A competent authority must maintain a list of the ADR applicants which have been approved by it to become an ADR entity under regulation 9(4) and that list must include the information in Schedule 4 in respect of each ADR applicant.
2
A competent authority must, without undue delay following compilation of a list, send the list to the single point of contact.
3
If under regulation 11(1) a competent authority receives notification from an ADR entity containing information which differs from the information included in relation to that ADR entity in the list maintained under paragraph (1), the competent authority must—
a
amend the list to reflect the change in that information, and
b
without undue delay, send the amended list to the single point of contact.
Ongoing information obligations of an ADR entity11
1
In the event of a change to the information which an ADR entity has supplied under regulation 9(1), the ADR entity must, without undue delay, provide written notification of the change to the competent authority.
2
An ADR entity must, within a month of the first anniversary of the approval date and within a month of each subsequent anniversary, publish on its website a report (“an annual activity report”) relating to the preceding year which contains the information in Schedule 5.
3
The ADR entity must, within a month of the second anniversary of the approval date and within a month of the expiry of each successive period of two years, supply the relevant competent authority with the information in Schedule 6 relating to the preceding two year period.
4
The annual activity report and information to be provided under paragraph (3) must be in such form as the competent authority may require.
5
In this regulation “approval date” means the date of the written notice granting approval to the ADR entity under regulation 9(6).
Ongoing assessment of an ADR entity12
Following receipt of the information received under regulation 11(3) the competent authority must review the information and assess whether the ADR entity still meets the requirements in Schedule 3.
Removal of approval13
1
A competent authority must provide notice in writing to an ADR entity approved by it under regulation 9(4) if the competent authority has reason to believe that—
a
the ADR entity no longer meets a requirement in Schedule 3; and
b
the reason the ADR entity no longer meets the requirement is within its control.
2
The written notice must—
a
identify the requirement in Schedule 3 which is no longer met; and
b
require the ADR entity to meet the requirement promptly or in any event within 3 months of the date of the notice.
3
If the ADR entity fails to meet the requirement notified to it on or before the expiry of the period specified in paragraph (2), and the competent authority considers that the failure to meet the requirement is sufficiently serious, the competent authority must—
a
send notice in writing to the ADR entity of the withdrawal of its approval, and
b
without undue delay, remove the ADR entity from the list maintained by it under regulation 10(1).
4
If a competent authority removes an ADR entity from the list under paragraph (3) it must, without undue delay, send the revised list to the single point of contact.
Notification of the consolidated ADR entity list14
F51
A competent authority must make the consolidated list of ADR entities published by the European Commission—
a
publicly available on its website by means of a link to the relevant European Commission website; and
b
available on request by a member of the public on a durable medium.
F62
An ADR entity must make the consolidated list of ADR entities published by the European Commission publicly available—
a
on its website by means of a link to the relevant European Commission website; and
b
wherever possible, at the ADR entity’s premises on a durable medium.
F2The ADR entity’s duty to cooperate14A
1
The ADR entity must take reasonable steps to—
a
cooperate with other ADR entities in the resolution of cross-border disputes; and
b
conduct regular exchanges of best practices with other ADR entities regarding the settlement of both cross-border disputes and domestic disputes.
2
The ADR entity must take such steps as it considers appropriate to cooperate with bodies or persons designated by the Secretary of State under Article 4(1) and 4(2) of Regulation (EC) No. 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws as amended by Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market.
3
Cooperation under paragraph (2) includes, in particular, exchange of information on practices in specific business sectors about which consumers have repeatedly lodged complaints.
F2Agreement to submit disputes to an ADR entity14B
An agreement between a consumer and a trader to submit a cross-border dispute or domestic dispute to an ADR entity is not binding on the consumer to the extent that the agreement—
a
was concluded before the cross-border dispute or domestic dispute materialised; and
b
has the effect of depriving the consumer of the right to bring judicial proceedings in relation to the cross-border dispute or domestic dispute.
F2Binding outcome requirements14C
1
Where an ADR entity aims at resolving a dispute by imposing a solution, the solution will not be binding on a party to the dispute unless—
a
the ADR entity notifies the party that the outcome will be binding; and
b
the party specifically accepts that the outcome will be binding.
2
The requirements under paragraph (1) must be met before the ADR entity notifies the party of the outcome of the alternative dispute resolution procedure.
3
Paragraph (1)(b) does not apply in relation to a trader where an enactment, the rules of a trade association, or term of a contract, provides that the solution will be binding on the trader.
F7Fees payable to the Secretary of State15
1
Where the competent authority is the Secretary of State, the competent authority may charge—
a
an ADR applicant a fee in respect of the costs incurred by or on behalf of the Secretary of State in evaluating an application made under regulation 9, and
b
an ADR entity a periodic fee, in respect of costs incurred by or on behalf of the Secretary of State in carrying out the functions of the Secretary of State under regulations 10 to 14.
2
The fees referred to above shall not exceed the amount of all reasonable costs and expenses incurred by or on behalf of the Secretary of State in evaluating an application and carrying out the other functions referred to above, which shall include a sum calculated at the rate of £750 for every day, (based upon an eight hour day) spent by each person in carrying out the relevant function (which shall be pro-rated in respect of any period less than a day spent by any person).
3
The fees are payable on invoice, to the Secretary of State, or such person as the Secretary of State may direct, and any unpaid fee may be recovered by the Secretary of State as a civil debt.
4
The Secretary of State is not required to approve an application under F8regulation 9(4) if there is a fee outstanding under this regulation in relation to that application.
F3Fees payable to the Financial Conduct Authority15A
1
The functions of the FCA under these Regulations are to be treated for the purposes of paragraph 23 of Schedule 1ZA to the 2000 Act (fees) as qualifying functions conferred on the FCA under that Act with the following modifications—
a
rules made under paragraph 23 by virtue of this regulation may not provide for payment of fees by any person other than the scheme operator as defined in section 225(2) of the 2000 Act (the ombudsman scheme);
b
rules made under paragraph 23 by virtue of this regulation are not to be treated as regulating provisions for the purposes of Chapter 4 of Part 9A of the 2000 Act (competition scrutiny);
c
in relation to the first rules made under paragraph 23 by virtue of this regulation, section 1381 of the 2000 Act (consultation by the FCA) does not apply.
2
In this regulation—
“the 2000 Act” means the Financial Services and Markets Act 2000;
“the FCA” means the Financial Conduct Authority as defined in section 1A of the 2000 Act (the regulators).
Consequential amendments16
Schedule 7 makes amendments that are consequential on these Regulations.
PART 3Single point of contact
Designation of single point of contact17
The Secretary of State is the single point of contact for the purposes of these Regulations.
Functions of single point of contact18
1
The single point of contact must—
a
compile a consolidated list of ADR entities from the lists which it receives from time to time from each competent authority under regulations 10 and 13(4), and
b
without undue delay, send the consolidated list to the European Commission F9on the standardised electronic form provided by the European Commission.
2
On or before 9th July 2018, and within each successive period of four years after that date, the single point of contact must—
a
publish on its website a report on the development and functioning of ADR entities; and
b
send a copy of that report to the European Commission.
3
The report must, in particular—
a
identify best practices of ADR entities,
b
identify the shortcomings (if any), supported by statistics or any other data, that hinder the functioning of ADR entities in relation to domestic or cross-border disputes, and
c
where appropriate, make recommendations on how to improve the effective and efficient functioning of ADR entities.
4
The single point of contact may, for the purpose of enabling it to prepare the report, require a competent authority to provide such information as it may require relating to the development and functioning of an ADR entity for which it is the relevant competent authority.
5
A competent authority must, if requested by the single point of contact under paragraph (4), provide the requested information in such form and within such period as may be required by the single point of contact.
PART 4Trader information requirements
Consumer information by tradersF1019
1
Where, under an enactment, rules of a trade association, or term of a contract, a trader is obliged to use an alternative dispute resolution procedure provided by an ADR entity or EU listed body the trader must provide the name and website address of the ADR entity or EU listed body—
a
on the trader’s website, if the trader has a website; and
b
in the general terms and conditions of sales contracts or service contracts of the trader, where such general terms and conditions exist.
2
Where a trader has exhausted its internal complaint handling procedure when considering a complaint from a consumer relating to a sales contract or a service contract, the trader must inform the consumer, on a durable medium—
a
that the trader cannot settle the complaint with the consumer;
b
of the name and website address of an ADR entity or EU listed body that would be competent to deal with the complaint; and
c
whether the trader is obliged, or prepared, to submit to an alternative dispute resolution procedure operated by an ADR entity or EU listed body.
3
The trader information requirements set out in paragraphs (1) and (2) apply in addition to any information requirements applicable to traders regarding out-of-court redress procedures contained in any other enactment.
PART 5Enterprise Act 2002
Amendment to Schedule 13 to the Enterprise Act 200220
1
In Schedule 13 to the Enterprise Act 2002 M3 (listed Directives and Regulations), after paragraph 12 M4 insert—
13
Article 13 of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) 2006/2004 and Directive 2009/22/EC.
2
The law in the United Kingdom set out in Schedule 8 to these Regulations is specified for the purposes of section 212 of the Enterprise Act 2002 to the extent that it gives effect to the listed Directive set out in that Schedule.