The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015

(For all amendments and annotations please see legislation.gov.uk)

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015

Made     16th March 2015

Laid before Parliament     17th March 2015

Coming into force for the purposes of Parts 1 to 3     7th April 2015

for the purposes of Parts 4 & 5     9th July 2015

The Secretary of State, as a Minister designated for the purposes of section 2(2) of the European Communities Act 1972(1), in relation to matters relating to consumer protection(2), makes the following Regulations in exercise of the powers conferred by section 2(2) of that Act.

Citation and commencement

1.—(1) These Regulations may be cited as the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015.

(2) Parts 1 to 3 come into force on 7th April 2015.

(3) Parts 4 and 5 come into force on 9th July 2015.

Review

2.—(1) The Secretary of State must from time to time—

(a)carry out a review of these Regulations,

(b)set out the conclusions of the review in a report, and

(c)publish the report.

(2) In carrying out the review, the Secretary of State must, so far as is reasonable, have regard to how Directive 2013/11/EU of the European Parliament and of the Council of 21st May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC(1) is implemented in other Member States.

(3) The report must in particular—

(a)set out the objectives intended to be achieved by these Regulations,

(b)assess the extent to which those objectives have been achieved, and

(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved in a way that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of five years beginning with the day on which Parts 1 to 3 of these Regulations come into force.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding five years.

“Consumer” and “trader”

  1. In these Regulations—

“consumer” means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession;

“trader” means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.

“ADR entity”

  1. In these Regulations “ADR entity” means a body whose name appears on a list maintained in accordance with regulation 10.

Other definitions

  1. In these Regulations—

“ADR applicant” means a body who wishes to become an ADR entity;

“ADR official” means an individual employed, contracted or appointed by an ADR entity to oversee its alternative dispute resolution procedure, whether as a case-handler or in a management capacity;

“competent authority” means the Secretary of State or a body specified in the first column of Part 1 or Part 2 of Schedule 1;

“cross-border dispute” means a dispute concerning contractual obligations arising from a sales contract or a service contract where, at the time the consumer orders the goods or services, the trader is established in the United Kingdom and the consumer is resident in another member State;

“domestic dispute” means a dispute concerning contractual obligations arising from a sales contract or a service contract where, at the time the consumer orders the goods or services, the consumer is resident, and the trader is established, in the United Kingdom;

“durable medium” means paper or email, or any other medium that—

(a)

allows information to be addressed personally to the recipient,

(b)

enables the recipient to store the information in a way accessible for future reference for a period that is long enough for the purposes of the information, and

(c)

allows the unchanged reproduction of the information stored;

“sales contract” means a contract under which a trader transfers or agrees to transfer the ownership of goods to a consumer, and the consumer pays or agrees to pay the price, including any contract that has both goods and services as its object;

“service contract” means a contract, other than a sales contract, under which a trader supplies, or agrees to supply a service to a consumer and the consumer pays, or agrees to pay, the price;

“single point of contact” means the person designated in regulation 17.

Interpretation

  1. In regulation 5 a trader is “established”—

(a)if the trader is an individual, where the trader has his or her place of business;

(b)if the trader is a company or other legal person or an association of persons, where it has its statutory seat, central administration or place of business, including a branch, agency or any other establishment.

Contracts to which these Regulations do not apply

  1. These Regulations do not apply to a contract to the extent that it is for health services provided by health professionals to patients to assess, maintain or restore their state of health, including the prescription, dispensation and provision of medicinal products and medical devices (and “health professionals” has the meaning given by Article 3(f) of Directive 2011/24/EUof the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare)(1).

Functions and designation of competent authorities

8.—(1) A competent authority must perform the functions set out in this Part.

(2) Each body specified in the first column of Part 1 of Schedule 1 is—

(a)a competent authority for the purposes of these Regulations, and

(b)the relevant competent authority in relation to alternative dispute resolution services offered by the body specified alongside it in the second column of Part 1 of Schedule 1.

(3) Subject to paragraph (2), each body specified in Part 2 of Schedule 1 is—

(a)a competent authority for the purposes of these Regulations in relation to the area for which it has regulatory responsibility or any area for which it has oversight under any enactment, and

(b)the relevant competent authority in relation to an ADR entity or ADR applicant which offers alternative dispute resolution services in that area.

(4) The Secretary of State is the relevant competent authority in relation to—

(a)alternative dispute resolution services offered by the Pensions Ombudsman, and

(b)an ADR entity or ADR applicant which offers alternative dispute resolution services in an area other than one referred to in paragraph (3).

Assessment of application to become an ADR entity

9.—(1) An ADR applicant may apply to the relevant competent authority to become an ADR entity.

(2) The ADR applicant must supply with an application—

(a)the information in Schedule 2; and

(b)such other information as the competent authority may require in order to assess whether the ADR applicant meets the requirements in Schedule 3.

(3) The information referred to in paragraph (2) must be provided in such form as the competent authority may require.

(4) The competent authority may only approve an application if it is satisfied that—

(a)the ADR applicant is established in the United Kingdom; and

(b)the requirements in Schedule 3—

(i)have been met by the ADR applicant, or

(ii)will be met by the ADR applicant within a reasonable period of time of the application being granted.

(5) Where—

(a)an enactment contains the power for a competent authority to impose additional requirements which go beyond those set out in Schedule 3, and

(b)such requirements, including issuing binding solutions on traders, are imposed for the purpose of ensuring a higher level of consumer protection,

such requirements shall be deemed to be included in Schedule 3 for the purposes of this regulation, regulations 12 and 13(1) and (2) and paragraph (i) of Schedule 2.

(6) Where an application is approved, the competent authority must as soon as is reasonably practicable give written notice to the ADR applicant.

(7) Where an application is rejected, the competent authority must as soon as is reasonably practicable give written notice of this fact to the ADR applicant, which must include the grounds on which it has rejected the application.

(8) For the purposes of paragraph (4)(a) an ADR applicant is “established”—

(a)if the ADR applicant is operated by an individual, at the place where it carries out the dispute resolution;

(b)if the ADR applicant is operated by a legal person, or association of persons, at the place where that legal person or association of persons carries out the dispute resolution or has its statutory seat;

(c)if the ADR applicant is operated by a public authority or other public body, at the place where that public authority or other public body has its statutory seat.

Listing of ADR entities

10.—(1) A competent authority must maintain a list of the ADR applicants which have been approved by it to become an ADR entity under regulation 9(4) and that list must include the information in Schedule 4 in respect of each ADR applicant.

(2) A competent authority must, without undue delay following compilation of a list, send the list to the single point of contact.

(3) If under regulation 11(1) a competent authority receives notification from an ADR entity containing information which differs from the information included in relation to that ADR entity in the list maintained under paragraph (1), the competent authority must—

(a)amend the list to reflect the change in that information, and

(b)without undue delay, send the amended list to the single point of contact.

Ongoing information obligations of an ADR entity

11.—(1) In the event of a change to the information which an ADR entity has supplied under regulation 9(1), the ADR entity must, without undue delay, provide written notification of the change to the competent authority.

(2) An ADR entity must, within a month of the first anniversary of the approval date and within a month of each subsequent anniversary, publish on its website a report (“an annual activity report”) relating to the preceding year which contains the information in Schedule 5.

(3) The ADR entity must, within a month of the second anniversary of the approval date and within a month of the expiry of each successive period of two years, supply the relevant competent authority with the information in Schedule 6 relating to the preceding two year period.

(4) The annual activity report and information to be provided under paragraph (3) must be in such form as the competent authority may require.

(5) In this regulation “approval date” means the date of the written notice granting approval to the ADR entity under regulation 9(6).

Ongoing assessment of an ADR entity

  1. Following receipt of the information received under regulation11(3) the competent authority must review the information and assess whether the ADR entity still meets the requirements in Schedule 3.

Removal of approval

13.—(1) A competent authority must provide notice in writing to an ADR entity approved by it under regulation 9(4) if the competent authority has reason to believe that—

(a)the ADR entity no longer meets a requirement in Schedule 3; and

(b)the reason the ADR entity no longer meets the requirement is within its control.

(2) The written notice must—

(a)identify the requirement in Schedule 3 which is no longer met; and

(b)require the ADR entity to meet the requirement promptly or in any event within 3 months of the date of the notice.

(3) If the ADR entity fails to meet the requirement notified to it on or before the expiry of the period specified in paragraph (2), and the competent authority considers that the failure to meet the requirement is sufficiently serious, the competent authority must—

(a)send notice in writing to the ADR entity of the withdrawal of its approval, and

(b)without undue delay, remove the ADR entity from the list maintained by it under regulation 10(1).

(4) If a competent authority removes an ADR entity from the list under paragraph (3) it must, without undue delay, send the revised list to the single point of contact.

Notification of the consolidated ADR entity list

  1. A competent authority must make the consolidated list of ADR entities published by the European Commission—

(a)publicly available on its website by means of a link to the relevant European Commission website; and

(b)available on request by a member of the public on a durable medium.

Fees

15.—(1) Where the competent authority is the Secretary of State, the competent authority may charge—

(a)an ADR applicant a fee in respect of the costs incurred by or on behalf of the Secretary of State in evaluating an application made under regulation 9, and

(b)an ADR entity a periodic fee, in respect of costs incurred by or on behalf of the Secretary of State in carrying out the functions of the Secretary of State under regulations 10 to 14.

(2) The fees referred to above shall not exceed the amount of all reasonable costs and expenses incurred by or on behalf of the Secretary of State in evaluating an application and carrying out the other functions referred to above, which shall include a sum calculated at the rate of £750 for every day, (based upon an eight hour day) spent by each person in carrying out the relevant function (which shall be pro-rated in respect of any period less than a day spent by any person).

(3) The fees are payable on invoice, to the Secretary of State, or such person as the Secretary of State may direct, and any unpaid fee may be recovered by the Secretary of State as a civil debt.

(4) The Secretary of State is not required to approve an application under Regulation 9(4) if there is a fee outstanding under this regulation in relation to that application.

Consequential amendments

  1. Schedule 7 makes amendments that are consequential on these Regulations.

Designation of single point of contact

  1. The Secretary of State is the single point of contact for the purposes of these Regulations.

Functions of single point of contact

18.—(1) The single point of contact must—

(a)compile a consolidated list of ADR entities from the lists which it receives from time to time from each competent authority under regulations 10 and 13(4), and

(b)without undue delay, send the consolidated list to the European Commission.

(2) On or before 9th July 2018, and within each successive period of four years after that date, the single point of contact must—

(a)publish on its website a report on the development and functioning of ADR entities; and

(b)send a copy of that report to the European Commission.

(3) The report must, in particular—

(a)identify best practices of ADR entities,

(b)identify the shortcomings (if any), supported by statistics or any other data, that hinder the functioning of ADR entities in relation to domestic or cross-border disputes, and

(c)where appropriate, make recommendations on how to improve the effective and efficient functioning of ADR entities.

(4) The single point of contact may, for the purpose of enabling it to prepare the report, require a competent authority to provide such information as it may require relating to the development and functioning of an ADR entity for which it is the relevant competent authority.

(5) A competent authority must, if requested by the single point of contact under paragraph (4), provide the requested information in such form and within such period as may be required by the single point of contact.

Consumer information by traders

19.—(1) Where a trader is obliged to use alternative dispute resolution services provided by an ADR entity under—

(a)an enactment; or

(b)the rules of a trade association to which the trader belongs,

the trader must provide the name and website address of the ADR entity—

(c)on the trader’s website, if the trader has a website; and

(d)in the general terms and conditions of sales or service contracts between the trader and a consumer.

(2) Where a trader has exhausted its internal complaint handling procedure when considering a complaint from a consumer relating to a sales contract or a service contract, the trader must inform the consumer, on a durable medium—

(a)that the trader cannot settle the complaint with the consumer;

(b)of the name and website address of an ADR entity which would be competent to deal with the complaint, should the consumer wish to use alternative dispute resolution; and

(c)whether the trader is obliged, or prepared, to submit to an alternative dispute resolution procedure operated by that ADR entity.

(3) The trader information requirements set out in paragraphs (1) and (2) apply in addition to any information requirements applicable to traders regarding out-of-court redress procedures contained in any other enactment.

Amendment to Schedule 13 to the Enterprise Act 2002

20.—(1) In Schedule 13 to the Enterprise Act 2002(1) (listed Directives and Regulations), after paragraph 12(2) insert—

13.  Article 13 of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) 2006/2004 and Directive 2009/22/EC.”.

(2) The law in the United Kingdom set out in Schedule 8 to these Regulations is specified for the purposes of section 212 of the Enterprise Act 2002 to the extent that it gives effect to the listed Directive set out in that Schedule.

Jo Swinson

Parliamentary Under Secretary of State for Employment Relations and Consumer Affairs

Department for Business, Innovation and Skills

16th March 2015

 

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