This debate will conclude after 45 minutes. Amendments Nos. 1 and 49 are related and will be discussed together.
Consumer Rights Bill 2022: Report and Final Stages
Bill recommitted in respect of amendments Nos. 1 and 49.
I move amendment No. 1:
In page 13, line 20, after "2014;" to insert "to amend section 459 of the Companies Act 2014;".
Deputies will recall that I indicated on both Second and Committee Stages that I would be bringing forward amendments to section 459 of the Companies Act 2014, which I am now doing. The purpose of amendment No. 1 is to change the Long Title of the Bill to make reference to the 2014 Act, given that I am seeking to amend section 459 of the Act.
Amendment No. 49 makes amendments to section 459 that are technical and operational in nature. They set out a process for dealing with unclaimed considerations of former dissenting shareholders in respect of an acquisition. The purpose of this process is to remove any potential exposure of the State to financial risks arising from the indemnity currently provided by the Minister for Public Expenditure and Reform, provide for adequate legal examination and oversight of unclaimed considerations, and provide for efficient operation of unclaimed considerations and ensure a person so entitled can make a claim at any time.
In a takeover, it is the objective of the person or company making the bid, known as the offeror under the Companies Act 2014, to ensure 100% ownership is achieved. Under the 2014 Act, once the offeror has acceptances that meet the threshold of affected shares, the offeror may proceed to acquire the shares of the dissenting minority shareholders of the target company, which is known as the offeree company. Section 459(7) of the Act provides for the completion of the compulsory acquisition. This includes the offeree company holding for seven years any moneys or non-cash assets such as shares or property received by it on trust for the former dissenting shareholders, who, for example, may not be contactable.
Section 459(7)(c), which matured on 1 June 2022, provides that after seven years, any unclaimed consideration is then transferred by the offeree company to the Minister for Public Expenditure and Reform, who indemnifies the offeree company for the amount transferred against any future claims. The Department of Public Expenditure and Reform has identified financial risks arising from this indemnity. Thus, the provision is being amended to minimise the State's exposure to financial risk and provide for adequate legal examination and oversight. The amendments are based on section 623 of the Companies Act 2014, which provides for the court-operated companies liquidations account into which unclaimed dividends and balances are paid in a winding-up and which, after seven years, are transferred to the Exchequer.
I will now outline the amendments to section 459 of the Companies Act. Section 173(a) of the Consumer Rights Bill, as provided for in amendment No. 49, substitutes subsection (7)(c) of section 459 to provide that at the expiry of seven years, the offeree company must lodge unclaimed considerations to the court account nominated by the Minister for Public Expenditure and Reform. As the court can only accept cash, the offeree company must realise the non-cash assets such as shares or property it has held on trust as soon as practically possible and lodge the proceeds of the sale to the nominated court account.
Section 173(b) of the Bill, as provided for in amendment No. 49, inserts new subsections (9) to (16), inclusive, in section 459. Subsection (9) provides that where the offeree company cannot realise the non-cash assets, it must continue to hold them on trust until such time as they are either claimed or realised, following which the proceeds must be lodged with the nominated court account. Subsection (10) provides that a person entitled to the moneys in the court account can apply to the court to make a claim. Subsection (11) provides that after seven years in the court account, the unclaimed moneys are lodged with the Exchequer. Under subsection (12), a person can apply to the court to make a claim on those moneys. Where the court is satisfied the person concerned is so entitled, it can order the Minister for Public Expenditure and Reform to provide the payment. Subsection (13) is a transitional provision that provides for the treatment of a consideration that may transfer from the offeree company to the Minister for Public Expenditure and Reform under the current subsection (7)(c) before the commencement of this new process. Subsection (14) provides that a person making a claim on moneys arising from processes in the transitional period will also apply to the court. Under subsection (15), no liability will attach to the Minister for Public Expenditure and Reform in respect of the actions or omissions of the offeree company concerning the unclaimed consideration. Subsection (16) clarifies references to subsection (7)(c).
Amendment agreed to.
Bill reported with amendment.
Amendments Nos. 2 and 3 are related and will be discussed together.
I move amendment No. 2:
In page 30, line 38, to delete "12 months" and substitute "24 months".
I am moving this amendment on behalf of Deputy O'Reilly. We submitted this amendment to ascertain the reason there is a timeframe of 12 months, instead of 24 months, for a customer to prove that the goods supplied under a sales contract are not in conformity with that contract. Article 11(2) of the sale of goods directive permits a period of 24 months. Will the Minister of State indicate why a period of 12 months was chosen? I assume it is to strike a balance between the interests of traders and consumers but I want to be certain as to the reason for the deviation from the directive. With sufficient explanation, I will be happy to withdraw both amendments.
We had this discussion on Committee Stage. I appreciate what Deputy O'Reilly is aiming to achieve with these amendments. Section 22(1) of the Bill, which gives effect to Article 11(1) of the sale of goods directive, provides that a lack of conformity that becomes apparent within one year of the delivery of the goods shall be presumed to have existed at the time of delivery. The section does not utilise the option in Article 11(2) of the directive that permits member states to introduce a period of two years from the time of delivery for the presumption of lack of conformity.
The reason for not opting for a two-year timeframe is based on the need, as Deputy Quinlivan noted, to achieve a reasonable balance between the rights of consumers on the one hand and, on the other, the obligations placed on businesses. The inclusion of a two-year period would negatively impact on this balance.
For instance, under the 1999 sales directive, the reverse burden of proof currently applies for only six months after delivery. Increasing the duration of this period from six months to two years would represent a sudden and sharp change in the scheme of remedies. There is also a risk that the longer a lapse in time from the delivery of goods, the greater the possibility that a subsequent lack of conformity may not have been presented at the time of delivery. That could therefore open the possibility that traders will question whether the manner in which the goods were used could have contributed to the lack of conformity.
Another reason for not adopting the longer timeframe was to ensure consistency in the terms of consumer rights across the various parts of the Bill. The digital content directive provides that the burden of proof in respect of whether digital content or a digital service was in conformity with the contract is set for a period of one year from the time of the supply. There is no option for member states to increase this period to two years. It would be insufficient and difficult to justify having a two-year period from the reversal of the burden of proof for goods, while a one-year period applied to the digital content. Therefore, this provision is to ensure consistency between digital content and goods, and acknowledges that we are already going from six months to 12 months. We must have the right balance in respect of the protection of customers and from a business perspective. It is for those three reasons that we are not proposing to accept these amendments.
On foot of the Minister of State's answer, I withdraw amendments Nos. 2 and 3.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
I move amendment No. 4:
In page 33, between lines 23 and 24, to insert the following:
“Rights in relation to diagnosis, maintenance and repair of electronic equipment
26. (1) In relation to digital electronic equipment sold in the State, a manufacturer shall make available, for the purposes of diagnosis, maintenance or repair of the equipment—
(a) to independent repair providers, and
(b) to owners of the equipment, in a timely manner and on fair and reasonable terms, relevant documents, parts and tools, including any updates to information or embedded software.
(2) Where a manufacturer has made an express warranty with respect to digital electronic equipment and the wholesale price of the equipment is €100 or more, the manufacturer shall provide such parts, tools, and documents as enable the repair of the equipment during the warranty period at an equitable price, with due regard to—
(a) the actual cost to the manufacturer of preparing and distributing the parts, tools or documents, exclusive of any research and development costs incurred,
(b) the ability of owners and independent repair providers to afford the parts, tools or documents, and
(c) the means by which the parts, tools or documents are distributed.
(3) In relation to equipment with an electronic security lock or other security-related function, the manufacturer shall make available to the owner and to independent repair providers, on fair and reasonable terms and through secure data release systems where appropriate, any special documents, tools or parts needed to disable the lock or function, and to reset it, for the purposes of diagnosis, maintenance or repair of the equipment.
(4) Both an owner and an independent repair provider may maintain an action against a manufacturer who contravenes subsection (1), (2) or (3), and the court may order the manufacturer to take such action as may be necessary to observe the requirements of the subsection concerned, or to pay damages.
(5) (a) Nothing in this section requires a manufacturer to disclose a trade secret, save as and to the extent necessary to provide documents, parts and tools on fair and reasonable terms.
(b) Subject to paragraph (c), nothing in this section alters the terms of any agreement between a manufacturer and an authorised repair provider.
(c) A provision of an agreement referred to in paragraph (b), or any other agreement, is void insofar as it purports to waive, avoid, restrict or limit a manufacturer’s obligations under this section.
(6) In this section—
“authorised repair provider”, in relation to a manufacturer, means a person who is not a connected person and who has an agreement with the manufacturer—
(a) pursuant to a license to use a trade name, service mark or other proprietary identifier, to offer the services of diagnosis, maintenance or repair of digital electronic equipment under the name of the manufacturer, or
(b) otherwise to provide such services on behalf of the manufacturer, provided that a manufacturer who offers the services of diagnosis, maintenance or repair of digital electronic equipment manufactured by it or on its behalf, and who does not have an agreement with a connected person for the provision of such services, is an authorised repair provider with respect to that equipment;
“connected person” has the meaning assigned to it by section 10 of the Taxes Consolidation Act 1997;
“digital electronic equipment”—
(a) subject to paragraph (b), means any product that depends for its functioning, in whole or in part, on digital electronics embedded in or attached to the product,
(b) does not include—
(i) mechanically propelled vehicles designed and constructed to be suitable for use on roads, or
(ii) medical devices within the meaning of the Health (Pricing and Supply of Medical Goods) Act 2013;
“document” includes any manual, diagram, reporting output, service code description, schematic, or other guidance or other information used in effecting the services of diagnosis, maintenance, or repair of digital electronic equipment;
“embedded software” means any programmable instructions provided on firmware delivered with digital electronic equipment, or with a part for such equipment, for the purposes of operating the equipment, including all relevant patches and fixes made by the manufacturer of such equipment or part for this purpose;
“firmware” means a software program or set of instructions programmed on digital electronic equipment, or on a part for such equipment, to allow the equipment or part to communicate within itself or with other computer hardware;
“independent repair provider”, means a person who—
(a) in relation to a manufacturer and any authorised repair provider of the manufacturer, is not a connected person, and
(b) is engaged in the diagnosis, maintenance, or repair of digital electronic equipment,
provided that a manufacturer or an authorised provider of a manufacturer is, when engaged in the diagnosis, service, maintenance or repair of digital equipment that is not manufactured by or sold under the name of the manufacturer, an independent repair provider;
“manufacturer” means a person engaged in the business of selling, leasing, or otherwise supplying new digital electronic equipment, or parts of such equipment, that has been made by or on behalf of the manufacturer;
“owner” means a person who owns or leases digital electronic equipment;
“part” means any replacement part, whether new or used, made available by a manufacturer for purposes of maintenance or repair of digital electronic equipment manufactured by or on behalf of, sold or otherwise supplied by the manufacturer;
“tools” includes any software program, hardware implement or other apparatus used for diagnosis, maintenance, or repair of digital electronic equipment, including software or other mechanisms that provision, program or pair a new part, calibrate functionality, or perform any other function required to bring the equipment back to fully functional condition.
(7) A reference in this section to making a document or thing available on fair and reasonable terms means making the document or thing available on terms that are equivalent to the most favourable terms under which a manufacturer makes the document or thing available to an authorised repair provider—
(a) regard being had to any discount, rebate, convenient means of delivery, means of enabling fully restored and updated functionality, rights of use, or other incentive or preference the manufacturer offers to an authorised repair provider, or any additional cost, burden, or impediment the manufacturer imposes on an independent repair provider, and
(b) not conditioned on or imposing a substantial obligation or restriction that is not reasonably necessary for enabling the owner or independent repair provider to engage in the diagnosis, maintenance, or repair of digital electronic equipment made by or on behalf of the manufacturer.”.
I am dealing with this amendment on behalf of my colleague, Deputy Sherlock. It is, however, a topic that I have spoken about before. This amendment aims to deal with the issue of how different electronic products and devices become obsolete and the right to repair. All of us in these Houses have these smartphones. We are lucky now if we get a couple of years out of them. It is quite ridiculous. I sometimes get jealous of my father’s Nokia brick, as they call it, because of the reliability. There is no upgrading required, there is nothing required in that regard.
This amendment is grounded in the idea that we will have to deal with this matter. In Ireland, we have often been innovative and ahead of the curve. Examples of this include the plastic bag levy, how we addressed the issue of smoking indoors and other things. This, however, is something that we must get ahead of the EU on. Looking at the regulations being brought in, and I sat on the Committee on Internal Market and Consumer Protection when I was an MEP, and specifically regarding some of the changes in the context of technological necessities, those measures took several years to come through. Again, on this topic, it is also going to take a long time to address. Therefore, we should lead on this issue.
The idea that, basically, no matter what the device or technology, whether smartphones, tablets, Kindles, small household items or large household appliances, there is effectively only a lifespan of a few years is unacceptable. We must have a change in this mindset. It is not good for the environment. It is not good for our pockets. In many cases, this attitude has impacts concerning energy consumption. There are also other issues involved. Equally, there is also the aspect of the effects and costs for consumers. They are required to constantly upgrade, whether that involves purchasing new software, apps, additions, different components for household items, etc.
Therefore, we must be very radical in this regard. I have high hopes that the Minister of State will be radical. In that context, I hope he will accept this amendment, because it is a necessary one. We must have the right to repair these items and we must not be continuously bounced into ensuring that all these types of items, whether personal devices or household items, must be continuously upgraded, have constant changes made to them and that their lifespans will be dictated by those who manufacture them. I refer to people being constantly forced to change and upgrade devices and appliances. Somebody must shout “Stop” here.
I am not sure that I ever want to do any more with the device I have now. It has everything I need. Within one year, however, I will have to change this device. New applications or upgrades will ensure I have to do that because the manufacturer will dictate it. Therefore, I urge the Minister of State to take on board this amendment. I will be listening closely to what he is going to say regarding it. This is something the Labour Party feels strongly about and I hope the Minister of State will take this amendment on board.
I fully understand where the Deputy is coming from in this regard, and indeed Deputy Sherlock, because we had quite a lengthy debate on this topic on Committee Stage. I felt then that this proposal was problematic, but I gave a clear undertaking that I would have my officials look to see if there was any practical way possible in which we could accept this amendment. I say that because I agree wholeheartedly with what the Deputy said and with what Deputy Sherlock said on Committee Stage. The sale of goods directive, however, is a maximum harmonisation directive, and that leaves very little discretion in respect of its implementation.
The amendment, as currently drafted, is unclear regarding whether it intends to create new obligations on a seller, as defined in Article 2 of the directive, who has entered into a sales contract with the consumer. If that is the case, then this amendment goes beyond what is required in the directive and so breaches the maximum harmonisation provision set out in Article 4. As the Deputy will understand, member states may not adopt stricter rules than those provided for in the directive, even to achieve a higher level of consumer protection. If, on the other hand, the intention of the amendment is to create new rules to cover the relationship between the manufacturer and an owner of an independent repair provider, the amendment does not fall within the scope of the directive and therefore does not fit within the scope of Part 2 of the Bill. In that case, I would argue that this is not the appropriate legislative vehicle for making such changes to the law.
I reiterate, although the Deputy might be hearing this for the first time, what I said to Deputy Sherlock. The European Commission's working party on consumer protection and information is currently considering several proposals to empower consumers to make sustainable consumption decisions. One such proposal has a particular emphasis on promoting repair and reuse as an initial remedy before a replacement is offered. These proposals will almost certainly be harmonised and will, quite probably, apply to all goods, including motor vehicles, and not just electronic equipment as dealt with in this amendment.
As I said, I advised Deputy Sherlock on Committee Stage that the European Commission is currently examining a proposal to improve the participation of consumers in the circular economy by providing better information on the durability and repairability of certain products. While I would of course welcome further protections being given to consumers in the area of repairability and maintenance of all goods, including electronic goods, I am acting in the context of strong legal advice because of this being a maximum harmonisation measure. Even though I would like to, and I concur with the sentiments of Deputies Kelly and Sherlock in this regard, I am unable to accept this amendment for these reasons.
I take on board what the Minister of State is saying. I remember several years ago when I was an MEP and we brought in the regulations concerning mobile phone coverage and prices. The interesting thing about that development was that some country had to kick it off. Several countries came together and kicked such a measure off. Eventually, it got to the European Parliament and then went to the European Commission. We got there in the end with that measure and that is why we have the standardisation we have now in this context. I feel that we need to be leaders on this issue. I do not accept the Minister of State’s arguments regarding the appropriateness of this provision being in this Bill. Any examination of several Bills that have been on the floor of the House tonight would show that is not really a good argument.
Regarding the issue of maximum harmonisation, I know it only too well.
At some point, we, as a country, have to show leadership. In terms of scale, Ireland is a country that can really show leadership in this area. We are a highly technological country but, obviously, we are not the biggest country in terms of scale. Therefore, we can lead on this and show how it can be done. The amendment is very appropriate. This could be a seismic moment. It could be a great moment for the Department and a good moment for the Minister of State to show leadership. Whether the amendment passes or not, I ask the Minister of State to lead the charge on this. If he does so, he would receive great thanks. It would be a symbolic issue to fight for because ultimately we cannot continue like this. Every one of us has boxes of phones, tablets, consumables and machines that last only a few years. This cannot go on.
I fully agree with what Deputy Kelly is saying, but I am not a legal professional and I have to take the best legal advice that is given. I am told that in the context of maximum harmonisation, it is not possible to accept the amendment as submitted. I thank the Deputy for saying that it is an opportunity to make a name and lead the charge on this. There is a working party on consumer protection looking at this issue in Europe, and we can feed into that. We can request that the working party comes back on that at a very early date. We know that with supply-chain issues across the globe at present, it makes more sense to repair than replace.
I concur with Deputy Kelly but I am sure, when he was on this side of the House and received legal advice, he was loath to ignore it. That is where I stand at the moment. I genuinely agree with what he is saying. We need to promote repair over replace. There is a vehicle at the European Commission to do that and it is important that we feed into that process. More importantly, we need to make progress in this area as soon as possible. I cannot, much as I would love to, accept the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 5 to 9, inclusive, 15 and 20 are related and may be discussed together.
I move amendment No. 5:
In page 44, line 13, after “in” to insert “concise,”.
These amendments follow on from the wording of the Bill, which aims to ensure that information relating to contracts, communications, guarantees, etc., is expressed in plain, intelligible language. However, these amendments seek to build on this to ensure that contracts, communications, guarantees and so on are also concise. If they are accepted, the legislation would state that all information will be in concise, plain, intelligible language. The reasons for this, I am sure he will agree, are obvious. Customers often and small businesses are sometimes faced with information on contracts, communications, guarantees and so forth that may be plain and intelligible but that runs to 40 pages. People will read through this information if it is concise and they know their rights and responsibilities, but they cannot be reasonably expected to read a 50-, 60- or 70-page document. I hope the Minister of State will look favourably on these amendments.
I thank Deputy Quinlivan for moving these amendments on behalf of Deputy Louise O’Reilly. They seek to ensure that the information provided to consumers entering into various types of contracts is concise and in plain language. While I agree with all seven of Deputy O'Reilly's amendments and would welcome an end to countless pages of information being imposed on consumers, I can only accept three of them. I have sought legal advice on this matter and have been advised that due to the maximum harmonisation nature of certain articles in the directive that this Bill transposes, the additional requirement is not permissible in all cases. I will go through the proposed amendments and explain the rationale.
Amendments Nos. 5 and 20 deal with commercial guarantee statements provided under sale of goods contracts or hire purchase agreements. Section 44(2) of the Bill and section 73W(2) of the Consumer Credit Act 1995, as inserted by section 150(1) of the Bill, transpose Article 17(2) of the sale of goods directive. Article 17(4) of the directive states: "Member States may lay down rules on other aspects concerning commercial guarantees which are not regulated in this Article, including rules on the language or languages in which the commercial guarantee statement is to be made available to the consumer." This means that these proposed amendments are permissible. I am, therefore, happy to accept them.
Amendments Nos. 6 and 7 seek to insert the word "concise" into sections 103(4)(c), "Information requirements for off-premises contract", and section 104(5)(c), "Information requirements for off-premises contract for repairs or maintenance". These sections transpose Article 7(1) of the consumer rights directive. Article 4 of the directive states: "Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive." Article 7 of the directive, relating to formal requirements for off-premises contracts, states: "Member States shall not impose any further formal pre-contractual information requirements for the fulfilment of the information obligations laid down in this Directive." I have been advised that the proposed insertion of "concise" relates to the form in which the information is provided, as opposed to the information itself and is, therefore, not permissible. The same reasoning applies to amendments Nos. 8 and 9, which seek to adjust sections 106(1)(a), "Information requirements for distance contract", and 107(1), "Additional information requirements for distance contract concluded on online marketplace", both of which transpose Article 8(1) of the consumer rights directive. Therefore, these amendments are also not permissible.
Amendment No. 15 seeks to make the same insertion into section 134(2)(a), "Consumer contract terms to be transparent". I have been advised that the relevant wording in this provision has its origin in Article 5 of the unfair commercial terms directive, which does not preclude the proposed amendment. I am, therefore, happy to accept amendment No. 15.
Amendment agreed to.
Amendments Nos. 6 to 9, inclusive, not moved.
Amendments Nos. 10 and 11 are related and may be discussed together.
I move amendment No. 10:
In page 94, line 4, to delete “during” and substitute “before the expiry of”.
These amendments are very straightforward and make small typographical corrections, such as, for example, the slight rewording of a section to clarify the law. These amendments are not policy driven; they merely tidy up the draft. Amendment No. 10 is a minor wording change to ensure consistency and continuity with the current position in Irish law on the right to cancel a consumer contract. The proposed language mirrors the European Union (Consumer Information, Cancellation and other Rights) Regulations 2013, which transpose the consumer rights directive that is being repealed by the Bill. It does not change the purpose or meaning of section 112. It replaces the word "during" with the phrase "before the expiry of" regarding a cancellation period. Amendment No. 11 is a minor technical amendment to tidy up the language.
Amendment agreed to.
I move amendment No. 11.
In page 94, lines 7 and 8, to delete “during the cancellation period” and substitute “in accordance with subsection (1)”.
Amendment agreed to.
Amendments Nos. 12, 13 and 50 are related and may be discussed together.
I move amendment No. 12:
In page 103, to delete lines 24 to 27 and substitute the following:
“124. (1) Where a trader operates a telephone line for the purpose of enabling a consumer to contact the trader in relation to a contract concluded by the consumer with the trader, the trader shall ensure that the telephone line is available to the consumer at a charge that does not exceed the basic rate.”.
The purpose of amendment No. 13 is to clarify the language of section 124(7) which defines "basic rate" as it applies to the charges for communication by telephone.
Specifically, the policy aim of this section is to protect consumers from paying premium-rate fees for contacting trader helplines about their consumer contracts. The amended definition will give clarity to traders on the expectation as to what the basic-rate charge is for calls made to, for example, landlines and mobile phone numbers.
The new definition also adheres to the spirit of the recent judgment of the European Court of Justice, which ruled that call charges relating to a contract concluded with a trader to a telephone helpline operated by the trader may not exceed the cost of a call to a standard geographical landline or mobile telephone line.
Amendment No. 12 makes a slight adjustment to the wording of section 124(1) in order to take account of the revised definition of "basic rate" and does not change the policy intent of that subsection.
Deputy O'Reilly had an amendment to the Government's amendment No. 12. The reason we proposed it was to make sure that consumers who contact a trader or business about a product or service are not left waiting on telephone lines for inordinate periods. We regularly hear of consumers left on the phone for hours to resolve a broadband issue, to query a guarantee or a contract or for any other reason. It is unacceptable that a customer would be left on a phone line, for which they have to pay, for a long period. The two points in the amendment added that consumer calls to telephone lines be answered within ten minutes and, where a call to a telephone line exceeds 30 minutes, that that call then become free of charge to the consumer. These are sensible and fair amendments.
The Government has tabled an amendment clarifying what the definition of the basic rate is. It is to be no more than the rate in respect of a geographical landline. Deputy O'Reilly had sought to amend that, I suppose to add greater clarity.
It comes back to the maximum harmonisation point I have raised on a number of other amendments. The advice is that we cannot go further than we are going and that we have given the clarity as to what the basic rate is. Unfortunately, I am not at liberty to accept Sinn Féin's amendment.
Amendment agreed to.
I move amendment No. 13:
In page 104, to delete lines 1 to 20 and substitute the following:
“(7) In this section—
“basic rate”, in relation to a telephone line operated by a trader for the purpose referred to in subsection (1), means:
(a) where the telephone line uses a freephone number, nil;
(b) where the telephone line uses a landline telephone number, the rate charged for a call to a landline telephone number;
(c) where the telephone line uses a mobile telephone number, the rate charged for a call to a mobile telephone number;
(d) where the telephone line uses a standard rate number, the rate charged for a call to a standard rate number;
(e) where the telephone line does not fall within any of paragraphs (a) to (d), the rate charged for a call to a landline telephone number;
“freephone number” means a non-geographic number (other than a mobile telephone number, a standard rate number or a premium rate number), in respect of which the charge for a call is paid for by the called party and not the caller;
“landline telephone number” means a number from the national numbering scheme where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point;
“mobile telephone number” means a mobile telephone number that is a nongeographic number (other than a freephone number, a standard rate number or a premium rate number);
“national numbering scheme” has the same meaning as it has in section 12 of the Communications Regulation Act 2002;
“network termination point” has the meaning assigned to it by Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (Recast);
“non-geographic number” means a number—
(a) that is not a landline telephone number, and
(b) that is from the national numbering scheme;
“premium rate number” means a non-geographic number that is used to provide a premium rate service within the meaning of the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010;
“standard rate number” means a non-geographic number (other than a freephone number, a mobile telephone number or a premium rate number), in respect of which the rate charged to the caller does not exceed the rate charged for a call to a landline telephone number.”.
Amendment agreed to.
I move amendment No. 14:
In page 107, between lines 18 and 19, to insert the following:
“(1) (a) Without prejudice to the generality of the foregoing, where a trader supplies a service to subscribers, it is an unfair term of the contract under which the service is provided if the trader, in relation to provision of the same or substantially the same service, charges consumers who are renewing their subscription a higher fee than the trader charges consumers who are new subscribers.
(b) In paragraph (a), “subscriber” means a consumer who receives a service from a trader pursuant to a contract where, on payment of a periodic fee, the contract with the trader under which the service is supplied is successively renewed or rolled over, whether the fee is calculated solely by reference to a period of time or by reference to the amount of service received during that period, or by a combination of both; and “subscription” shall be construed accordingly.”.
This is a very important amendment. The Minister of State in his contribution on Committee Stage was very determined to come back with good news on this one, so I hope he has good news. This amendment, in essence, bans what we now know will take place in the insurance industry whereby customers who are loyal to whichever company they are subscribing with are not discriminated against. In other words, if you sign up for broadband, if you are a long-standing customer, if you sign up for your phone tariff, your television package or whatever else, you will not be discriminated against as a consumer because you are a loyal customer. There are situations in which people who are loyal to a provider get one rate and then the person next door gets a cheaper tariff because he or she is switching. We all know that for a sizeable number of the population, the idea of switching provider is an ordeal. It might not be for the likes of us, but, certainly, thinking of my parents, the idea of switching would be a huge ordeal to them. Many of these companies, or basically all of them, know that. They have analysts studying this left, right and centre. Those who sign up consumers get bonuses and get paid more if they sign up more people of a higher age because it is known they are more likely to stay with the company. These are the simple facts. There should not be discrimination. If you are a new customer, that is great and you will get a good service, it is to be hoped, but that should not mean that those who have availed of the service for so many years or, in some cases, decades should be discriminated against.
I note that in one of the Minister of State's previous contributions he said he accepted the validity of this and, considering it is coming in in the insurance industry and the insurance market, would take the time between Committee Stage and Report Stage to look at how this could be achieved here as well. Ultimately it is - I have no doubt the Minister of State will agree - the right thing to do.
The proposed amendment to section 130 relates to renewal of subscription contracts. This is a highly complex area involving a number of regulated markets, including utilities, electronic communications and financial services, for which my Department has no policy responsibility. Any amendment of this kind would require consultation with sectoral regulators and other sectoral stakeholders as well as other Government Ministers.
The new rules on differential pricing in the insurance sector, which are to take effect in July, differ from those proposed in the amendment. Those rules allow for discounts to new customers and will prohibit only the charging of a premium to a renewing customer that is higher than the premium charged to a renewing customer with a similar risk profile who is renewing a policy after the first year with the same company. It would be inconsistent and undesirable to have different rules and different pricing for different sectors. The suggested amendment effectively proposes that a contract term is always unfair if its object or effect is to require a consumer who is renewing a subscription to pay a higher price for a service than a new subscriber. As such, its inclusion in section 130 is at odds with the section in that it bypasses the criteria for the assessment of the unfairness of the contract terms set out in the section.
If the Deputy agrees to withdraw this amendment, I will undertake to look at bringing forward a Government amendment on Committee Stage in the Seanad. We did try to do that on this Stage but the timeline was too short. This will allow officials in my Department to engage with Parliamentary Counsel to ensure that the Government amendment meets with the spirit of the Deputy's intention but in a legally sound way, particularly in addressing the point I made earlier about the contract term always being unfair. I get what the Deputy is trying to achieve, and it is exactly what Deputy Sherlock said the last time.
I must point out that the inclusion of any such provision in the Bill does not mean that it will be commenced with the rest of the Bill, but it will show the Government's intent and will allow such time for consultation with other Government Ministers and sectoral regulators to take place.
I am pleased to report that the Competition and Consumer Protection Commission, CCPC, has already commenced research into pricing practices across various sectors and how they influence consumer behaviour. The work was motivated by the same concerns that prompted the Deputy's proposed amendment. The CCPC intends to publish a report towards the end of this year and its findings will play a crucial role in informing the potential commencement of the proposed provision. It is my clear intention, however, and I have said this to my officials, to bring forward an amendment on Committee Stage in the Seanad, bearing in mind that we may not be able to commence it at the same time as the rest of the Bill. We have a legal requirement from a European perspective as to when the Bill has to be transposed before we potentially face fines. I want to accept this amendment because I share the aspirations of Deputies Kelly and Sherlock. My compromise is to bring forward an amendment the provisions of which can be commenced at a later stage than the rest of the Bill while giving a clear commitment to try to achieve what we want to achieve.
I thank the Minister of State for the thoughtful way in which he has dealt with this. I appreciate that this has to be across Departments and that it was not all going to come within his remit, and I appreciate the time constraints. I was going to ask why the Government did not table its own amendment but, in fairness to the Minister of State, he is after proposing that he will table such an amendment.
I welcome that. I am aware of everything the Minister of State said about the CCPC. I am glad to see that it is getting teeth because I have had concerns over the past number of years that it did not have enough teeth, particularly in respect of these areas, which I also welcome.
There is one issue in respect of what the Minister of State is drafting. I accept and understand the necessity to push forward with what he has to do in this Bill, given the requirements under European law. I also understand and accept that he will not necessarily commence the amendment he is proposing at the same time. I understand that in a situation like this there would need to be a bedding-in period in order for this to be brought out and to demonstrate how it would work with all of the different stakeholders.
I ask, considering it was the Labour Party which brought forward this amendment, that in the spirit of this, the Government would work with our party and consult my colleagues in Seanad Éireann in respect of the amendment which will be going through that Chamber. We believe that this is a very important amendment and is in the spirit of what we are doing in respect of the insurance industry.
I also accept, however, what the Minister of State is saying in that the technicalities of how one would even draft this are very particular but it can be done. We have to ensure that anybody who is receiving a renewal contract, within the same type of portfolio, across a whole range of different services, is not being discriminated against. It can be done so I encourage the Minister of State to deliver on such a matrix as part of the amendment that he will be bringing forward. On the basis of the good spirit in which the Minister of State has taken this proposal, we will withdraw this amendment. We welcome and look forward to his amendment coming through the Seanad.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 109, line 25, after “in” to insert “concise,”.
Amendment agreed to.
Amendments Nos. 16 to 19, inclusive, are related and may be discussed together.
I move amendment No. 16:
In page 130, line 27, to delete “(a)” and substitute “(b)”.
These grouped amendments which I am proposing are very straightforward and make small typographical corrections. They are not policy driven and merely tidy up the draftsmanship. Amendments Nos. 16 to 19, inclusive, are typographical amendments to retitle paragraphs as a consequence of insertions made on Committee Stage.
Amendment agreed to.
I move amendment No. 17:
In page 130, line 29, to delete “(b)” and substitute “(c)”.
Amendment agreed to.
I move amendment No. 18:
In page 131, line 28, to delete “(b)” and substitute “(c)”.
Amendment agreed to.
I move amendment No. 19:
In page 131, line 30, to delete “(c)” and substitute “(d)”.
Amendment agreed to.
I move amendment No. 20:
In page 135, line 31, after “in” to insert “concise,”.
Amendment agreed to.
We now come to amendment No. 21 in the name of the Minister of State. Amendments Nos. 21, 38, and Nos. 40 to 48, inclusive, are related and may be discussed together.
I move amendment No. 21:
In page 137, between lines 15 and 16, to insert the following:
“(a) by the substitution of the definition “authorised officer” for the following definition:
“ ‘authorised officer’—
(a) in relation to the functions performed by the Competition and Consumer Protection Commission under this Act, has the same meaning as it has in the Competition and Consumer Protection Act 2014, and
(b) in relation to the functions performed by the Commission for Communications Regulation under this Act, has the same meaning as it has in section 39 of the Communications Regulation Act 2002;”,”.
I propose in amendment No. 21 to substitute the current definition of "authorised officer" in section 2 of the Consumer Protection Act 2007. The reason for this change is to ensure that for the purposes of the electronic communications sector, ComReg's authorised officers have the same enforcement functions under the Consumer Rights Bill as under section 39 of the Communications Regulation Act 2002.
The purpose of amendment No. 38 is to insert a new section 84A into the Consumer Protection Act 2007 to ensure ComReg can take summary proceedings for offences that relate to its functions.
Amendments Nos. 40 and 42 refer to section 171, which in turn amends section 10 of the Communications Regulation Act 2002. It is a minor technical amendment to ensure ComReg has the power to monitor and ensure compliance with certain obligations.
Amendment No. 41 is a minor technical amendment to section 10 of the Communications Regulation Act 2002. The adjustment replaces a list of sections in the Consumer Protection Act 2007 with a reference to Part 3 of the Act instead. The purpose is to guarantee that ComReg has the powers to monitor and ensure compliance with undertakings on premium rate service providers with Part 3 of the Act.
Amendment No. 43 amends section 10 of the Communications Regulation Act 2002 by inserting a new paragraph with the intention of ensuring ComReg holds a number of enforcement functions that are listed in the Consumer Protection Act 2007 in respect of Part 3 of the Consumer Rights Bill. These functions which relate to the electronic communications sector include prohibition orders, undertakings, compliance notices and fixed payment notices for price display and product pricing offences.
Amendment No. 44 is a minor typographical amendment to retitle a paragraph as a consequence of amendment No. 43. Amendment No. 45 is a minor technical amendment to ensure that ComReg has the powers in regard to section 72 of the Consumer Protection Act 2007.
Amendment No. 46 is a minor technical amendment to replace a reference to section 87 of the 2007 Act with a reference to section 88. Amendment No. 47 is a minor typographical amendment to retitle a paragraph as a consequence of amendment No. 43.
Amendment No. 48 inserts a new section 172 into the Consumer Rights Bill 2022 in order to amend section 39 of the Communications Regulation Act 2002. Its purpose is firstly, at subsection (1), to increase the number of enactments under which ComReg may appoint persons to be authorised officers and to also include the Consumer Protection Act 2007, the Competition and Consumer Protection Act 2014 and the Consumer Rights Act 2022.
In subsection (3), which sets out the functions of authorised officers, the amendment again increases the enactments under which authorised officers may obtain any information which may be required in respect of a matter under investigation, to include the Consumer Protection Act 2007, the Competition and Consumer Protection Act 2014 and the Consumer Rights Act 2022, as well as competition law as already provided by the Competition (Amendment) Bill 2022.
Amendment agreed to.
We are moving on to Deputy Sherlock but we have unfortunately run out of time in this matter. I call Deputy Kelly to speak briefly, please.
I will speak briefly. The spirit of this contribution refers to where people sign up to broadband contracts, etc., and are not receiving the full broadband speed but are still paying the full premium price. Our request is that we have a way of dealing with this. We suggest that if there is a certain number of transmission dropouts, etc., these consumers are compensated for the lack of service. I believe that the Minister of State is aware of the spirit of this Bill to ensure that more powers will go to the regulators to enable them to deal with this. We hope that the Minister of State and this Bill will actually deliver on that issue.
The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 28 June 2022: "That the amendments set down by the Tánaiste and Minister for Enterprise, Trade and Employment and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."
Question put and agreed to.