European Communities (Distance Marketing of Consumer Financial Services) Regulations, 2004

JurisdictionIreland
CitationIR SI 853/2004

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...

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