PART 6

Miscellaneous

Protections for persons reporting breaches.

87 .— (1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by the person to the Agency of the person’s opinion that—

(a) an offence under any of the relevant statutory provisions has been or is being committed, or

(b) any of the relevant provisions that prohibits a person from doing a particular thing or things has not been or is not being complied with,

unless it is proved that the person has not acted reasonably and in good faith in forming that opinion and communicating it to the Agency.

(2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to be the subject of an order providing for any other form of relief.

(3) An employer shall not penalise an employee for having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to the Agency if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the Agency.

(4) Schedule 6 shall have effect for the purposes of subsection (3).

(5) A person who states to the Agency that a person—

(a) has committed or is committing an offence under any of the relevant statutory provisions, or

(b) has failed or is failing to comply with any of the relevant statutory provisions,

knowing that statement to be false commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5 .

(6) Subsection (1) is in addition to, and not in substitution for, any privilege or defence available in legal proceedings, by virtue of any enactment or rule of law in force immediately before the commencement of this section, in respect of the communication by a person to another (whether that other person is the Agency or not) of an opinion of the kind referred to in paragraph (a) or (b) of subsection (1).

Voluntary submission of codes for Agency review and approval.

88 .— (1) Subject to this section, a person representing one or more traders may submit a code of practice to the Agency for its review or approval.

(2) The code of practice shall be submitted in the form and manner specified by the Agency.

(3) The person submitting a code of practice for approval under this section shall provide the Agency with any information the Agency considers necessary or appropriate for the purposes of subsection (4).

(4) If satisfied that the code of practice protects consumer interests and is not inconsistent with this Act or any other enactment, the Agency may approve the code of practice.

(5) A code of practice approved by the Agency may not be amended without approval of the proposed amendments by the Agency and, for this purpose, subsections (3) and (4) apply with the necessary modifications.

(6) The approval by the Agency of a code of practice or any amendments to such code shall be in writing.

(7) The Agency may withdraw any approval under this section if the Agency is of the opinion that, in the implementation or operation of all or part of an approved code of practice or amendment to it, such code, part or amendment fails to protect consumer interests or is in any manner inconsistent with this Act or any other enactment.

(8) If—

(a) it is alleged that a trader who is a signatory to a code of practice with the approval of the Agency under this section has contravened this Act or a complaint is made to the Agency in relation to a commercial practice of that trader, and

(b) the approved code of practice referred to in paragraph (a) provides for procedures or a means of handling or considering such contraventions or complaints,

then the Agency may defer consideration of the complaint or the court may defer hearing an application for a prohibition order under section 71 (respecting prohibition orders) or an action for damages under section 74 (respecting a consumer’s right of action for damages) until the means or procedures referred to in paragraph (b) have been exhausted.

Admissibility of codes of practice in proceedings.

89 .— In any proceedings before a court, a code of practice (whether approved under section 88 or not) is admissible in evidence and, if any provision of the code is relevant to a question arising in those proceedings, the provision may be taken into account in determining that question.

Agency guidelines.

90 .— (1) Subject to this section, the Agency may prepare, issue and publish guidelines applicable to traders, or persons representing traders, concerning any of the following:

(a) a matter of consumer welfare or protection;

(b) a matter of practical guidance to traders in relation to commercial practices, whether generally or in a particular trade, business or professional sector;

(c) the establishment, form and operation of quality assurance schemes referred to in section 8 (2)(m);

(d) the form and manner of submitting codes of practice to the Agency for approval under section 88 .

(2) Before issuing and publishing guidelines under this section, the Agency may prepare draft guidelines and consult with any person, as the Agency considers appropriate.

(3) If satisfied that proposed or draft guidelines protect consumer interests, the Agency may issue the guidelines and shall cause them to be published in the manner the Agency considers appropriate for the purpose.

(4) Without limiting the generality of subsection (3), the Agency may publish a copy of guidelines issued by it under this section on the internet.

(5) In any proceedings before a court, guidelines issued and published under this section are admissible in evidence and, if any provision of the guidelines is relevant to a question arising in those proceedings, the provision may be taken into account in determining that question.

(6) A failure on the part of any person to observe any provision of guidelines issued and published under this section shall not, of itself, render that person liable to any proceedings.

Saving for certain contracts.

91 .— Subject to section 66 (1), a contract for the supply of any goods or the provision of any services shall not be void or unenforceable by reason only of a contravention of any provision of this Act.

Saving of current price display orders.

92 .— (1) Notwithstanding section 4 but subject to subsection (2), the following enactments made under section 19 of the Prices Act 1958 (before its repeal under this Act) remain in force for the purposes of this Act and any provision (in particular, sections 2, 18, 19 and 22 to 28) of the Prices Act 1958 that is relevant to the enforcement of those orders remain in force:

(a) Prices and Charges (Tax-inclusive Statements) Order 1973 (S.I. No. 9 of 1973);

(b) Charges (Hairdressing Display) Order 1976 (S.I. No. 156 of 1976);

(c) Retail Price (Food in Catering Establishments) Display Order 1984 (S.I. No. 213 of 1984);

(d) Retail Price (Diesel and Petrol) Display Order 1997 (S.I. No. 178 of 1997);

(e) Retail Price (Beverages in Licensed Premises) Display Order 1999 (S.I. No. 263 of 1999).

(2) The Minister may by regulation amend or revoke any order referred to in subsection (1).

Transitional.

93 .— (1) Despite section 4 , the following enactments made under section 11 of the Consumer Information Act 1978 (before its repeal by this Act) remain in force and are deemed to have been made as regulations by the Minister under section 50 (2) until any such enactment is revoked, substituted by regulation of the Minister under section 50 (2) or otherwise ceases to have effect:

(a) Consumer Information (Advertisements) (Disclosure of Business Interests) Order 1984 (S.I. No. 168 of 1984);

(b) Consumer Information (Advertisements for Concert or Theatre Performances) Order 1997 (S.I. No. 103 of 1997);

(c) Consumer Information (Advertisements for Airfares) Order 2000 (S.I. No. 468 of 2000).

(2) Section 3 (2) does not apply to the enactments referred to in subsection (1)(a) to (c).

(3) For certainty, section 26 of the Interpretation Act 2005 applies in respect of the repeal of section 11 of the Consumer Information Act 1978 and its substitution by the provisions of section 50 and, for this purpose, the enactments specified in subsection (1) are conclusively deemed to be consistent with and validly enacted under section 50 .

(4) For certainty, the references in sections 51 (2) and 69 (1) (in paragraph (b)(iii) of the definition of “contravening advertisement”) to a regulation under section 50 (2) include any enactment referred to in subsection (1)(a) to (c).

Amendment of Central Bank Act 1942.

94 .— (1) In this section “Act of 1942” means the Central Bank Act 1942 , as amended by, amongst other enactments, the Central Bank and Financial Services Authority of Ireland Act 2003 and the Central Bank and Financial Services Authority of Ireland Act 2004 .

(2) Section 2(1) of the Act of 1942 is amended by inserting, before the definition of “ Appeals Tribunal”, the following:

“ ‘Agency’ means the National Consumer Agency established by the Consumer Protection Act 2007;”.

(3) Section 5A of the Act of 1942 is amended by inserting the following subsections after subsection (3):

“(3A) The functions of the Agency specified in subsection (3B) are, in so far as they relate to a financial service provided by a regulated financial service provider, also functions of the Bank and subsections (3C) to (3F) have effect for the purposes of this subsection.

(3B) The functions of the Agency referred to in subsection (3A) are the following functions of it under the Consumer Protection Act 2007, namely, functions under—

(a) section 8 (1), (4), (5) and (6) of that Act in relation to—

(i) sections 41 to 56 (other than section 50 ) of that Act, and

(ii) the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 (S.I. No. 27 of 1995 and S.I. No. 307 of 2000),

and

(b) sections 30 , 71 , 72 , 73 , 75 , 81 , 82 , 84 , 86 , 88 and 90 of that Act.

(3C) Subsection (3A) operates to vest in the Bank, concurrently with the vesting in the Agency of those functions by the Consumer Protection Act 2007, the functions specified in subsection (3B).

(3D) Accordingly—

(a) the functions so specified are, subject to any relevant co-operation agreement entered into under section 21 of the Consumer Protection Act 2007, capable of being performed by either the Agency or the Bank, and

(b) subject to subsection (3F), references to the Agency in the provisions of that Act specified in subsection (3B) are to be read as including references to the Bank and those provisions otherwise apply.

(3E) Subject to subsection (3F), sections 80 , 85 and 87 of the Consumer Protection Act 2007 apply to the Bank as they apply to the Agency and, accordingly, references to the Agency in those sections are to be read as including references to the Bank.

(3F) Where any section of the Consumer Protection Act 2007 specified in subsection (3B) or (3E) provides for anything to be done in relation to the Agency (whether the giving of notice to it, the submitting of a thing to it or the doing of any other thing) then, if a co-operation agreement entered into under section 21 of that Act so specifies, it is sufficient compliance with the section concerned if the thing is done in relation to the Agency or the Bank as is specified in that agreement.”.

(4) Section 33S(2) of the Act of 1942 is amended by substituting the following paragraph for paragraph (f):

“(f) the Consumer Protection Act 2007;

(g) the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 (S.I. No. 27 of 1995 and S.I. No. 307 of 2000);

(h) such other enactments and statutory instruments as are specified in the regulations.”.

(5) Section 33AK(3) of the Act of 1942 is amended, in paragraph (a), by inserting the following subparagraph after subparagraph (iv):

“(iva) the National Consumer Agency, or”.

(6) Schedule 2 to the Act of 1942 is amended—

(a) in Part 1, by inserting the following item after the item relating to the Investment Funds, Companies and Miscellaneous Provisions Act 2006 :

“

”,

and

(b) in Part 2—

(i) by inserting the following item after the item relating to the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994):

“

”,

and

(ii) by inserting the following item after the item relating to the European Communities (Supplementary Supervision of Insurance Undertakings in an Insurance Group) Regulations 1999 (S.I. No. 399 of 1999):

“

.”.

Amendment of Sale of Goods and Supply of Services Act 1980.

95 .— Section 6 of the Sale of Goods and Supply of Services Act 1980 is amended by substituting the following subsections for subsection (2):

“(2) If an offence under this Act is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of any person being a director, manager, secretary or any other officer of the body corporate or a person purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if that person were guilty of the first-mentioned offence.

(3) If, in a prosecution for an offence against the person referred to in subsection (2), it is proved that, at the material time, the person was a director of the body corporate or an employee of it whose duties included making decisions that, to a significant extent, could have affected the management of the body corporate, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is shown, that the person consented to the doing of the acts or defaults that constitute the offence.

(4) Subsection (3) shall be read as placing on the person referred to in that subsection an evidential burden only with respect to the matter or matters concerned.

(5) If the affairs of a body corporate are managed by its members, subsections (2) and (3) apply in relation to the acts or defaults of a member in connection with the member’s functions of management as if that member were a director or manager of the body corporate.”.

Saving for other rights person may have.

96 .— This Act shall not affect any rights which a person may have under any other enactment or under any rule of law.

Amendment of Industrial Development Act 1993.

97 .— The following section is inserted after section 9 of the Industrial Development Act 1993 :

“Validation of assignment of powers and functions.

9A.— (1) In this section ‘relevant assignment’ means the assignment by Forfás with the approval of the Minister on 26 May 2006 under section 9(2) to the Industrial Development Agency (Ireland), Enterprise Ireland and Shannon Free Airport Development Company Limited of the power to make employment grants under section 25 of the Industrial Development Act 1986 .

(2) The relevant assignment shall be deemed to have come into operation on 25 July 2003.

(3) Nothing in this section shall affect any proceedings commenced in any court concerning the making of an employment grant under section 25 of the Industrial Development Act 1986 where those proceedings were commenced before 1 February 2007.”.

Amendment of Casual Trading Act 1995.

98 .— The following section is inserted after section 6 of the Casual Trading Act 1995 :

“Guidelines with respect to performance of functions under section 6.

6A.— (1) The Minister may prepare and issue to local authorities guidelines, in writing, regarding the performance by them of their functions under section 6 in relation to bye-laws.

(2) Without prejudice to the generality of subsection (1), guidelines under this section may include guidelines as to the particular provision that a local authority should make by bye-laws under section 6 in relation to each of the matters mentioned in subsection (2) of that section.

(3) Local authorities shall have regard to guidelines for the time being in force under this section in performing their functions under section 6 in relation to bye-laws.

(4) The Minister may amend or revoke, in writing, guidelines issued under this section.

(5) The Minister shall cause a copy of any guidelines issued under this section and of any amendment or revocation of them to be laid before each House of the Oireachtas.”.

Amendment of Hallmarking Act 1981.

99 .— The following sections are substituted for sections 5 and 6 of the Hallmarking Act 1981 :

“False representations in relation to certain articles.

5.— (1) Subject to section 6 of this Act, a commercial practice that involves a representation that an article which is not of precious metal is made wholly or partly of gold, silver or platinum is a misleading commercial practice under section 43 (1) and (2) of the Consumer Protection Act 2007.

(2) A trader who engages in any misleading commercial practice described in subsection (1) is guilty of an offence under section 47 of the Consumer Protection Act 2007.

Permissible representations in relation to certain articles.

6.— (1) Section 5 of this Act does not apply to a representation which is permissible under this Act.

(2) A representation is permissible under this Act if it complies with the following conditions:

(a) it is confined either expressly or by implication to the colour of the article;

(b) if it consists of or includes the word ‘gold’, that word is qualified by the word ‘plated’ or the word ‘rolled’;

(c) if it consists of or includes the word ‘silver’ or the word ‘platinum’, whichever of those words is used is qualified by the word ‘plated’;

(d) where the representation is in writing and the word ‘plated’ or ‘rolled’ is used, that word is at least as large as the rest of the representation.

(3) Subsection (2) of this section does not apply if the representation is false or is applied to an article for which the representation is inappropriate.

Construction of certain expressions in sections 5 and 6.

6A.— In sections 5 and 6 of this Act, ‘commercial practice’, ‘representation’ and ‘trader’ have the same meaning as they have in the Consumer Protection Act 2007.”.

Power of officer of customs and excise to detain unsafe goods.

100 .— For the purpose of facilitating the performance by the Agency of any functions conferred on it by any of the relevant statutory provisions relating to the safety of products, an officer of customs and excise, when authorised to do so by the Revenue Commissioners following a written request in that behalf by the Agency, may detain any goods being imported for such period as is reasonably necessary for the Agency to examine the goods, or arrange to have the goods examined, which period shall not in any case exceed 72 hours from the time when the goods concerned are detained.

Directions under certain instruments respecting product safety: actions of third parties.

101 .— (1) In this section “ relevant direction” means a direction, for the time being in force, given under any of the statutory instruments specified in Schedule 7 , being a direction—

(a) prohibiting the placing on the market of one or more products or requiring one or more products to be withdrawn from the market, or

(b) imposing restrictions on the placing on the market of one or more products.

(2) In this section a reference to a product concerned is a reference to a product to which the relevant direction relates.

(3) If a relevant direction is given to a person, being a direction to which subsection (1)(a) applies, any other person who knows of the direction shall not do any of the following things, namely—

(a) distribute,

(b) sell,

(c) offer for sale,

(d) supply in the course of providing a service,

a product concerned.

(4) If a relevant direction is given to a person, being a direction to which subsection (1)(b) applies, any other person who knows of the direction shall not—

(a) in a case where the restriction concerned prohibits the doing of that particular thing in respect of the product — do any particular thing referred to in subsection (3) in respect of a product concerned, or

(b) in a case where the restriction concerned does not prohibit the doing of that particular thing in respect of the product — do any particular thing referred to in subsection (3) in respect of a product concerned otherwise than in accordance with the terms of the restriction.

(5) A person who contravenes subsection (3) or (4) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5 .

(6) This section is in addition to the provision of any statutory instrument specified in Schedule 7 that creates an offence in respect of a contravention of a direction given under that instrument.

Admissibility of certain laboratory tests.

102 .— (1) A certificate in writing purporting to be signed by a person employed in a relevant laboratory and stating the results of one or more tests carried out in that laboratory with respect to a product of a specified type shall, without proof of the signature of that person or that he or she is employed in the relevant laboratory, be admissible as evidence of the results of the test or tests in the following proceedings taken in relation to that type of product.

(2) Those proceedings are proceedings under any of the statutory instruments specified in Schedule 7 .

(3) In this section ‘relevant laboratory’ means a laboratory the competence of which to carry out tests in relation to products is recognised by an authority performing functions under the laws, regulations or administrative provisions adopted by a Member State for the purposes of any of the Directives specified in Schedule 8 .

(4) Where a certificate referred to in subsection (1) is produced in proceedings referred to in subsection (2), it shall be presumed, until the contrary is shown, that the laboratory referred to in the certificate as a relevant laboratory is such a laboratory.