Dáil Éireann Debate, Wednesday - 23 November 2016
77. Deputy Pearse Doherty asked the Minister for Finance the legal impact of an inclusion where a loan cannot be subject to a cooling off period waiver and such a waiver has been included in the contract; and if he will make a statement on the matter. [36439/16]
View answerAs the Deputy will appreciate, it would not be appropriate for me, as Minister for Finance, to provide legal advice on specific circumstances or to intervene in a loan agreement between a consumer and a financial institution.
However, on the issue more generally I have been advised by the Central Bank that for credit agreements involving a total amount of credit of more than €200 and less than €75,000, the European Communities (Consumer Credit Agreements) Regulations 2010 applies, subject to the exclusions set out in Regulation 3(2) and 3(6).
Under these 2010 Regulations a full 14 day "Right of Withdrawal" applies to all credit agreements subject to the Regulations. Consequently, a consumer may, within 14 calendar days, withdraw from a credit agreement without giving any reason. The option to waive the "Right of Withdrawal" is not permitted under these Regulations.
The Consumer Credit Act 1995 applies to the granting of credit to consumers that does not fall within the scope of the Consumer Credit Agreements Regulations 2010, including credit for amounts under €200 and over €75,000. Under the Consumer Credit Act 1995, a consumer may withdraw from a credit agreement within 10 days of receiving it. A consumer may forego the right to a cooling-off period by signing a statement to this effect separately from any other term of the agreement. This statement must carry in a prominent position a warning which states that: "This waiver means you are giving up your right to a 10 day period to reconsider your commitment to the agreement." This does not apply, however, to a housing loan, credit cards, or overdraft facilities offered by credit institutions.
The European Union (Consumer Mortgage Credit Agreements) Regulations 2016 (CMCA Regulations) apply to:
"(a) a credit agreement which is secured by a charge, a mortgage or by another comparable security used in an EEA Member State on residential immovable property or secured by a right related to residential immovable property, and where the person to whom the credit is provided is a consumer;
(b) a credit agreement the purpose of which is to acquire or retain property rights in land or in an existing or projected building, and where the person to whom the credit is provided is a consumer;".
Section 11 of the CMCA Regulations provides that where a period or right of withdrawal applies this should be clearly mentioned by the creditor in the credit agreement. The creditor shall clarify the applicability of such rights, specify the conditions to which the right is subject, the procedure that the consumer will need to follow to exercise the right, the address to which the notification of withdrawal shall be sent, and the corresponding fees (where applicable).
