The Consumer Protection Code
The first comprehensive consumer protection code was introduced in 2006. It updated and greatly expanded a number of existing codes of conduct which applied to distinct sectors such as stockbrokers, investment intermediaries, lenders, and others.
The code followed on from a radical reorganisation of the regulation of financial services which took effect in 2004. A new financial regulator (formerly it was established together with a single comprehensive financial services ombudsman.) See our other chapters in relation to the schemes of regulation established in 2003-2004.
The 2006 code was made under a range of pre-existing legislation regulating various industries such as banks, insurers, building societies, intermediaries and insurance brokers. The 2003-2004 legislation had superimposed a single regulator over the disperse legislation and brought unity to the mechanisms and methods of enforcement.
The codes of conduct are unusual in that they are drafted non-legalistic language. They are not set out like legislation generally and are intended to be accessible and comprehensible.
The code has dual legal significance. On the one hand, it is a basis upon which the regulator may undertake regulatory enforcement and apply sanctions against regulated financial service providers. On the other hand, the code is enforceable by members of the public such as consumers through complaints to the Financial Services Ombudsman’s office. This financial service ombudsman has significant powers including jurisdiction to make awards up to €250,000, now €500,000.
Where a consumer makes a complaint to the Financial Services Ombudsman the lender may not bring the matter to court. Alternatively, the consumer may choose to take a court action as an alternative to a complaint to the ombudsman’s office.
There is an appeal from decisions of the ombudsman to court. The courts effectively treat such appeals in the same manner as a judicial review decision. A number of cases have clarified the relationship.
2012 Consolidated Code
The 2012 code consolidates and updates the 2006 code. The code was extended to retail credit and home reversion firms in 2008. This brought certain lenders within its scope who were not previously subject to it.
The Code of Conduct on Mortgage Arrears was made in response to the unprecedented number of residential mortgages in distress in February 2009. It has been revised and updated number of times and it is now wholly incorporated in a standalone code.
The 2012 code is effective 1st January 2012. Proceedings, investigations, and enforcement in respect of the code prior to that date continue under the older code. The older code is substantially similar.
The code applies to financial services entities either authorised by the Irish regulator (Central Bank) or authorised by another regulator, but providing services into Ireland or in Ireland through a branch. It covers banks, insurance companies, building societies, insurance intermediaries, mortgage intermediaries, investment advisors and other intermediaries, credit unions, retail credit firms, and home reversion firms.
The general principles of the code apply to all customers of the regulated entity in the State. These are very general obligations only. The more specific obligations apply to consumers as defined, which include smaller businesses with a turnover of less than €3,000,000.
Where credit agreements are subject to EU regulation, the code applies in a limited manner. The code does not apply to services which are regulated under the MiFID directive and Regulations. However, the broad principles of the code are similar to much of the MiFID regulation which applies to investment-related services.
See our separate chapters on MiFID services. These are separately regulated under common EU wide rule and are enforced by the regulator.
The code does not apply to moneylenders regulated under the Consumer Credit Act, credit unions which are not undertaking insurance business, bureau de change and hire purchase and credit hire agreement. These activities are separately regulated.
The general principles of the code apply to regulated financial services providers in all dealings with customers. It is not limited to consumers. The duties include the following:
- Act honestly, fairly and professionally in the best interests of the customer and the integrity of the market;
- Act with acute care skill and diligence in the best interest of customers;
- Not recklessly negligently or deliberately to mislead a customer as to the real or perceived advantage or disadvantage of a service,
- Have the necessary resources, policies, procedure systems, controls, checks, and staff training to implement the code;
- Seek information from customers relevant to the product or service requested;
- Fully disclose charges, avoid conflicts of interest, correct errors speedily;
- Have an efficient complaint handling system;
- Not exert undue pressure or influence on a customer;
- Ensure that outsourced activities comply with the code;
- Not through its policies prevent access to basic financial services;
- Comply with the letter and spirit of the code.
The bulk of the code applies to consumers. A consumer for the protection purpose of the code is much wider than for other consumer legislation including the Consumer Credit Act. A consumer is
- A private person
- A business or partnership with turnover of less than 3 million euro;
- A company with a turnover less than 3 million euro. Where a company is part of a group, this refers to the group turnover.
It includes a potential consumer.
A vulnerable consumer means a person who has the capacity to make his own decisions, but because of his individual circumstances may require assistance to do so or has limited capacity to make his decision and requires assistance to do so. The former may include persons who are visually or hearing impaired. The latter includes persons with intellectual disabilities or mental health difficulties
Where a financial services provider identifies the consumer as vulnerable as above, it must ensure that the vulnerable consumer is provided with such reasonable arrangements and/or assistance that may be necessary to facilitate him in his dealings with the regulated entity.
A regulated entity must ensure that the name of a product is not misleading in terms of benefits that it can deliver to a consumer. It must ensure that all instructions received from the consumer are properly and promptly processed.
Credit institutions (banks and equivalent) must ensure that funds lodged are credited by the close of the business day in which they are received. If not so credited they must be backdated to the day on which they were received.
Some Basic Obligations
A regulated entity must not seek to limit, exclude or restrict its liability to consumers under any legislation or under the code. It must not limit, restrict or exclude any liability or obligation it may have at common law to act with due skill care and attention.
All warnings required to be given under the code must be prominent. They must be in a box in bold type and of a font size at least equal to the predominant font size in the document or advertisement.
Regulated financial service providers which receive payments from consumers for a product or service must provide a receipt. The receipt must specify certain information including the name and address of the provider and consumer, the value of the payment, the date of receipt and the purpose.
Documents which confer ownership rights on the consumer must be given to the consumer or held for safekeeping. Where held for safekeeping there must be in agreement on paper or another durable medium.
Where a person is acting for a consumer under a power of attorney the institution must obtain a certified copy and ensure that it allows a person to act for the consumer’s benefit. It must comply with the limits of the power.
Change in Services
Where the regulated entity proposes to amend the range of service that it provides, it must give one month’s notice in advance of the amendment to consumers who are affected by it.
Where it ceases operations, merges or transfers any of its activities it must notify the regulator provide two months’ notice to consumers to allow them to make alternative arrangements and ensure that outstanding businesses is properly completed prior to the transfer or merger or cessation, inform the consumer regarding continuity of services following transfer and inform consumers that their details are being transferred if applicable. Similar positions apply if a credit institution proposes to close, merge or move a branch.