All businesses must ensure that they only place or sell products which are safe and comply with the product safety legislation on the Irish market. You must inform consumers of any risks associated with the products you supply and make sure that you take appropriate action if you become aware of products available on the EU or Irish market that are potentially dangerous. These obligations apply irrespective of whether the product was manufactured in Ireland, in another EU State, or elsewhere (‘a third country’).
It is important to note:
- In the context of Brexit, the UK has left the Customs Union and is now considered a ‘third country’.
- Products from the UK (excluding Northern Ireland) will be treated similarly to products originating from any other non EU country, and will be subject to border controls, customs checks etc.
- If you are a business dealing with UK-based importers your options are to become an importer and comply with the importers’ obligations under the legislation or alternatively, engage with an EU-based importer to supply the products.
- Detailed information on this issue has been provided by Revenue.
- The CCPC has published a Brexit guidance document based on the European Commission ‘ Readiness Notice to Stakeholders’ providing clarification on the impact of Brexit on EU product safety rules
Brexit has resulted in significant changes in businesses’ trading environment. As businesses respond to delays in deliveries and VAT/customs charges, it is important they ensure that the information they provide to consumers is updated and in line with consumer protection law.
The CCPC guide ‘Selling online: What you need to know’ sets out in detail the requirements on businesses under the Consumer Rights Directive (CRD) when they sell online to consumers.
In response to recent changes, the CCPC has developed the following guidance to help businesses, particularly those who source their products from the UK and who may now be experiencing delays on orders, increased costs and whose customers may now have to pay VAT/customs charges.
In summary, the key points to be aware of are:
- The onus is on the business to provide the information as outlined, in a clear and comprehensible manner so that a consumer can make an informed transactional decision.
- Businesses must disclose the geographic address of their place of establishment or place of business and also, when they are acting on behalf of another business, that business’s geographic address/place of business to which consumers can address complaints.
- Information in relation to the total cost and additional charges must also be disclosed before consumers place their orders.
Consumer Rights Directive
Consumers purchasing products (goods or services) online have statutory protections both at the pre-contractual stage and post-contractual stage of a consumer contract arising from Directive 2011/83 on Consumer Rights (the CRD).
The core of the CRD is the mandatory provision of information by businesses to consumers at the pre-contractual stage before a consumer commits to the contract. Information requirements under the CRD oblige businesses to provide consumers with certain information in a clear and comprehensible manner.
Of particular relevance in the current circumstances is the obligation to supply information in relation to:
- The main characteristics of the goods or services.
- The identity of the business, including any trading name.
- The geographical address at which the business is established, a telephone number, fax number and email address, where available, to enable a consumer to contact the business quickly and communicate efficiently.
- If different from the address provided above, the geographical address of the place of business. Where the business acts on behalf of another business, the geographical address of that business where a consumer can address any complaints.
- The total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated.
- Where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such charges may be payable.
Where a contract which involves payment by a consumer is concluded electronically such as an online purchase, the business must make the consumer aware in a clear and prominent manner, and directly before the consumer places his or her order of the following information:
- The main characteristics of the goods or services.
- The total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated.
- Where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such charges may be payable.
The European Commission also provides extensive guidance on the Consumer Rights Directive including this document which may assist if businesses have specific questions.
Merging parties and their legal representatives should note that since 1 January 2019 the thresholds for mandatory notification of transactions to the CCPC have increased. More details are available here.
The Brexit transition period has now ended. Merging parties and their legal representatives should note:
- Transactions which would have reached EU thresholds may no longer do so.
- UK turnover may not be used in calculating whether a transaction reaches the European Commission’s thresholds after the transition period. Details of the EU regime are available here.
- Failure to notify a mandatory notifiable merger is a serious breach of the law and can result in a transaction being deemed void.
- The CCPC’s website has detailed information to guide firms on the transactions that require notification.
- A separate notification may need to be made to the UK merger control authorities. More details on this area are available from the UK Competition and Markets Authority.
The European Commission has published a Notice to Stakeholders on the consequences of the UK withdrawal on competition law.
If your business operates in both Ireland and the UK, you will need to keep abreast of updates from both the CCPC and the Competition and Markets Authority (CMA). The UK Government has published a number of guidance documents on a range of issues.
