2012 No. 3110
The Consumer Rights (Payment Surcharges) Regulations 2012
18th December 2012
Laid before Parliament
19th December 2012
Coming into force
6th April 2013
The Secretary of State, being 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 Consumer Rights (Payment Surcharges) Regulations 2012 and come into force on 6th April 2013.
(2) These Regulations apply in relation to contracts entered into on or after that date.
“Consumer” and “trader”
2. 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 (personally or through an agent) for purposes relating to that person’s trade, business, craft or profession.
3. In these Regulations—
“court” in relation to England and Wales and Northern Ireland means a county court or the High Court, and in relation to Scotland means the sheriff or the Court of Session;
“digital content” means data which are produced and supplied in digital form;
“district heating” means the supply of heat (in the form of steam or hot water or otherwise) from a central source of production through a transmission and distribution system to heat more than one building;
“goods” means any tangible movable items, but that includes water, gas and electricity if and only if they are put up for sale in a limited volume or a set quantity;
” means the Office of Fair Trading(3 ) ;
“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 (whether or not the contract also covers services) ;
“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.
Excessive charges prohibited
4. A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.
Contracts where prohibition applies
5.—(1) Regulation 4 applies only if the use is as a means for the consumer to make payments for the purposes of a contract with the trader, and only to the extent that that contract—
(a) is a sales or service contract, or a contract (other than a sales or service contract) for the supply of water, gas, electricity, district heating or digital content, and
(b) is not an excluded contract.
(2) An excluded contract is a contract—
(a) for social services, including social housing, childcare and support of families and persons permanently or temporarily in need, including long-term care;
(b) for health services provided, whether or not via healthcare facilities, 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/EU of the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare) (4 ) ;
(c) for gambling within the meaning of the Gambling Act 2005(5 ) (which includes gaming, betting and participating in a lottery) ;
(d) for services of a banking, credit, insurance, personal pension, investment or payment nature;
(e) for the creation of immovable property or of rights in immovable property;
(f) for rental of accommodation for residential purposes;
(g) for the construction of new buildings, or the construction of substantially new buildings by the conversion of existing buildings;
(h) which falls within the scope of Directive 2008/122/EC of the European Parliament and of the Council on the protection of consumers in respect of certain aspects of timeshare, long–term holiday product, resale and exchange contracts(6 ) ;
(i) for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, and which are supplied by a trader on frequent and regular rounds to the consumer’s home, residence or workplace;
(j) concluded by means of automatic vending machines or automated commercial premises;
(k) concluded with a telecommunications operator through a public telephone for the use of the telephone;
(l) concluded for the use of one single connection, by telephone, internet or fax, established by a consumer;
(m) under which goods are sold by way of execution or otherwise by authority of law.
Temporary exemption for micro-businesses and new businesses
6.—(1) During the exemption period, regulation 4 does not apply if the trader is acting for purposes relating to the trader’s business, and the business is—
(a) an existing micro-business, or
(b) a new business.
(2) The Schedule defines those kinds of business, and the exemption period.
7.—(1) It is the duty of an enforcement authority to consider any complaint made to it about a contravention of regulation 4, unless—
(a) the complaint appears to the authority to be frivolous or vexatious; or
(b) another enforcement authority has notified the OFT that it agrees to consider the complaint.
(2) If an enforcement authority has notified the OFT as mentioned in paragraph (1) (b) , that authority is under a duty to consider the complaint.
(3) An enforcement authority which is under a duty to consider a complaint must—
(a) decide whether or not to make an application under regulation 8, and
(b) give reasons for its decision.
(4) In deciding whether or not to make an application, an enforcement authority may, if it considers it appropriate to do so, have regard to any undertaking given to it or another enforcement authority by or on behalf of any person as to compliance with regulation 4.
(5) The following are enforcement authorities for the purposes of these Regulations—
(a) every local weights and measures authority in Great Britain (within the meaning of section 69 of the Weights and Measures Act 1985(7 ) ) ;
(b) the Department of Enterprise, Trade and Investment in Northern Ireland.
Orders to secure compliance
8.—(1) An enforcement authority may apply for an injunction, or in Scotland an interdict or any other appropriate relief or remedy, against any person who appears to the authority to be responsible for a contravention of regulation 4.
(2) The court on an application under this regulation may grant an injunction, interdict or order on such terms as it thinks fit to secure compliance with regulation 4.
Notification of undertakings and orders to the OFT
9. An enforcement authority must notify the OFT—
(a) of any undertaking given to it by or on behalf of any person who appears to it to be responsible for a contravention of regulation 4;
(b) of the outcome of any application made by it under regulation 8, and of the terms of any undertaking given to the court or of any order made by the court;
(c) of the outcome of any application made by it to enforce a previous order of the court.
Consumer’s right of redress
10. Where a trader charges a fee in contravention of regulation 4—
(a) any provision of a contract requiring the consumer to pay the fee is unenforceable to the extent of the excess charged, and
(b) the contract for the purposes of which the payment is made is to be treated as providing for the excess to be repaid to the consumer.
Jo SwinsonMinister for Employment Relations and Consumer AffairsDepartment for Business, Innovation and Skills18th December 2012