European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995.

• Statutory Instrument No.: 27/1995
• Date: 01 February 1995

S.I. No. 27 of 1995.

EUROPEAN COMMUNITIES (UNFAIR TERMS IN CONSUMER CONTRACTS) REGULATIONS, 1995.

I, RICHARD BRUTON, Minister for Enterprise and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts(a) hereby make the following Regulations: 1. (1) These Regulations may be cited as the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995.

(2) These Regulations shall apply to all contracts concluded after 31st December, 1994. 2. In these Regulations—

"authorised officer" means a person appointed under Regulation 10 of these Regulations;

"business" includes a trade or profession and the activities of any government department or local or public authority;

"consumer" means a natural person who is acting for purposes which are outside his business;

"the Council Directive" means Council Directive No. 93/13/EEC, of 5 April 1993 on unfair terms in consumer contracts;

"the Director" means the Director of Consumer Affairs;

"the Minister" means the Minister for Enterprise and Employment;

"seller" means a person who, acting for purposes related to his business, sells goods;

"supplier" means a person who, acting for purposes related to his business, supplies services;

"unfair term" shall be construed in accordance with the provisions of the Council Directive and these Regulations.

( a ) O.J. No. L95/29, 21.4.1993 3. (1) Subject to the provisions of Schedule 1, these Regulations apply to any term in a contract concluded between a seller of goods or supplier of services and a consumer which has not been individually negotiated.

(2) For the purpose of these Regulations a contractual term shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer, taking into account the nature of the goods or services for which the contract was concluded and all circumstances attending the conclusion of the contract and all other terms of the contract or of another contract on which it is dependent.

(3) In determining whether a term satisfies the requirement of good faith, regard shall be had to the matters specified in Schedule 2 to these Regulations.

(4) A term shall always be regarded as having not been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence its substance, particularly in the context of a pre-formulated standard contract.

(5) The fact that a specific term or any aspect of a term has been individually negotiated shall not exclude the application of this Regulation to the rest of the contract if an overall assessment of the contract indicates that it is nevertheless a contract as described in paragraph (4) of this Regulation referred to in Article 3.2 of the Council Directive as a pre-formulated standard contract.

(6) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

(7) An indicative and non-exhaustive list of the terms which may be regarded as unfair, pursuant to Article 3.3 of the Council Directive, is set out in the Annex to the Directive and in Schedule 3 to these Regulations. 4. A term shall not of itself be considered to be unfair by relation to the definition of the main subject matter of the contract or to the adequacy of the price and remuneration, as against the goods and services supplied, in so far as these terms are in plain, intelligible language. 5. (1) In the case of contracts where all or certain terms offered to the consumer are in writing, the seller or supplier shall ensure that terms are drafted in plain, intelligible language.

(2) Where there is a doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. 6. (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

(2) The contract shall continue to bind the parties, if it is capable of continuing in existence without the unfair term. 7. These Regulations shall apply notwithstanding any contract term which applies or purports to apply the law of a country other than a Member State and would thereby deprive a consumer of protection under the Council Directive. 8. (1) The Director may apply to the High Court for, and may, at the discretion of the Court, be granted, an order prohibiting the use or, as may be appropriate, the continued use of any term in contracts concluded by sellers or suppliers adjudged by the Court to be an unfair term.

(2) The Director shall cause to be published notice of intention to apply to the High Court for an order under paragraph (1) of this Regulation in Iris Oifigiúil and at least two national newspapers and in such further or other manner as the Court may direct.

(3) Every person claiming to have an interest in any such application shall be entitled to appear before and be heard by the Court on the hearing of the application.

(4) On any such application it shall not be necessary for the Director or any such person to prove—

( a ) actual loss or damage, or

( b ) recklessness or negligence on the part of the...