Consumer Protection Act 2007
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Interpretation and application. |
2.— (1) In this Act— | |
“ advertisement ” includes any form of advertising or marketing; | ||
“Agency” means the National Consumer Agency established by section 7 ; | ||
“authorised officer” means a person appointed under section 30 ; | ||
“chief executive” means the chief executive officer of the Agency; | ||
“ code of practice” means any code, agreement or set of rules or standards that is not imposed by or under an enactment but purports to govern or define commercial practices of one or more traders (whether generally or in respect of a particular trade, business or professional sector or one or more commercial practices) who agree, commit or undertake to abide or be bound by such rules or standards; | ||
“ commercial practice ” means any conduct (whether an act or omission), course of conduct or representation by the trader in relation to a consumer transaction, including any such conduct or representation made or engaged in before, during or after the consumer transaction; | ||
“ consumer ” means a natural person (whether in the State or not) who is acting for purposes unrelated to the person’s trade, business or profession; | ||
“ consumer transaction ” means a promotion or supply of a product to a consumer; | ||
“ contravene ”, in relation to a provision, includes fail to comply with the provision; | ||
“ Directive ” means Directive No. 2005/29/EC of the European Parliament and of the Council of 11 May 2005 1 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No. 2006/2004 of the European Parliament and of the Council; | ||
“ Director ” means the Director of Consumer Affairs; | ||
“ enactment ” means an Act (within the meaning of the Interpretation Act 2005 ) or any instrument made under a power conferred by an Act (within that meaning); | ||
“ establishment day ” means the establishment day appointed under section 6 ; | ||
“existing enactments” means the following enactments, to the extent to which those enactments confer functions on the Director which are transferred to the Agency pursuant to section 37 : | ||
(a) food legislation, within the meaning of the Food Safety Authority of Ireland Act 1998 ; | ||
(b) the enactments specified in Part 1 of Schedule 1 and any instruments made under those enactments for the time being in force; and | ||
(c) the regulations made under the European Communities Act 1972 for the time being in force specified in Part 2 of Schedule 1 ; | ||
“ financial year” means a period of 12 months ending on 31 December in any year and, in the case of the first financial year of the Agency, means the period commencing on the establishment day and ending on 31 December in the year in which the establishment day falls; | ||
“ goods ” means real or personal property of any nature or description, and includes— | ||
(a) ships, aircraft or other vehicles, | ||
(b) animals, | ||
(c) minerals, trees or crops, whether on, under or attached to land or not, | ||
(d) gas, electricity or water, | ||
(e) computer software, | ||
(f) tickets or like evidence of a right to be in attendance at a particular place at a particular time or times or a right of transportation, | ||
(g) any voucher, coupon or other document or thing intended to be used as a substitute for money in the payment, in whole or in part, for a product or otherwise exchanged for a product, and | ||
(h) any description of interest (present or future, vested or contingent) or obligation arising out of or incidental to goods; | ||
“ goods or services ” means goods or services or both; | ||
“ invitation to purchase ” means a representation by the trader in a consumer transaction that— | ||
(a) indicates characteristics of the product and includes its price, and | ||
(b) enables the consumer to purchase the product; | ||
“ Minister ” means the Minister for Enterprise, Trade and Employment; | ||
“ prescribed ” means prescribed by regulations made by the Minister; | ||
“ product ” means goods or services; | ||
“ public body ” means— | ||
(a) a board, authority or other body, other than a company under the Companies Acts, established by or under statute; | ||
(b) a company under the Companies Acts in which all the shares are held— | ||
(i) by or on behalf of a Minister of the Government, or | ||
(ii) by directors appointed by a Minister of the Government; | ||
(c) a company under the Companies Acts in which all the shares are held by a board, authority or body referred to in paragraph (a) or by a company referred to in paragraph (b); | ||
“ purchase” means to buy, obtain or acquire by any method and includes accept, receive, be vested with, lease, take possession, control or occupation of, and agree to do any of those things (but does not include expropriate); | ||
“ relevant State ” means a state that is a contracting State to the EEA Agreement within the meaning of the European Communities (Amendment) Act 1993 ; | ||
“ relevant statutory provisions ” means— | ||
(a) existing enactments, | ||
(b) the Merchandise Marks Act 1970 and any instruments made under that Act for the time being in force, | ||
(c) certain provisions of the Prices Act 1958 referred to in section 92 and the enactments specified in subsection (1)(a) to (e) of that section to the extent to which they remain in force for the purposes of this Act, | ||
(d) the enactments specified in subsection (1)(a) to (c) of section 93 , and | ||
(e) this Act and any instrument made under this Act for the time being in force; | ||
“ representation ” includes— | ||
(a) any oral, written, visual, descriptive or other representation by a trader, including any commercial communication, marketing or advertising, and | ||
(b) any term or form of a contract, notice or other document used or relied on by a trader in connection with a consumer transaction; | ||
“ services ” means any service or facility provided for gain or reward or otherwise than free of charge, including, without limitation— | ||
(a) services or facilities for— | ||
(i) banking, insurance, grants, loans, credit or financing, | ||
(ii) amusement, cultural activities, entertainment, instruction, recreation or refreshment, | ||
(iii) accommodation, transport, travel, parking or storage, or | ||
(iv) the care of persons, animals or things, | ||
(b) membership in a club or organisation or any service or facility provided by the club or organisation, and | ||
(c) any rights, benefits, privileges, obligations or facilities that are, or are to be provided, granted or conferred in the course of services, | ||
but does not include services provided under a contract of employment; | ||
“ supply ”, in relation to the supply of goods or services to a consumer, includes— | ||
(a) sell, lease, take by way of mortgage or other security, assign, award by chance or otherwise effect a disposition of, | ||
(b) offer or agree to supply or expose or display for supply; | ||
“ trader ” means— | ||
(a) a person who is acting for purposes related to the person’s trade, business or profession, and | ||
(b) a person acting on behalf of a person referred to in paragraph (a); | ||
“ transactional decision ” means, in relation to a consumer transaction, any decision by the consumer concerning whether, how or on what terms to do, or refrain from doing, any of the following: | ||
(a) purchase the product; | ||
(b) make payment in whole or in part for the product; | ||
(c) retain or return the product after its purchase; | ||
(d) dispose of the product; | ||
(e) exercise a contractual right in relation to the product; | ||
“ voluntary body ” means— | ||
(a) a body corporate, or | ||
(b) an unincorporated body of persons, | ||
other than a public body. | ||
(2) In this Act, “the average consumer ” has the meaning assigned to it in the Directive, and when applied in relation to a particular commercial practice or product of a trader— | ||
(a) if the commercial practice or product is directed at a particular group of consumers, the expression shall be read as “the average member of that group”, and | ||
(b) if the commercial practice or the product is a practice or product that would be likely to materially distort the economic behaviour only of a clearly identifiable group of consumers whom the trader could reasonably be expected to foresee as being particularly vulnerable because of their mental or physical infirmity, age or credulity, the expression shall be read as “the average member of that vulnerable group”. | ||
(3) A word or expression that is used in this Act and is also used in the Directive shall have in this Act the same meaning as it has in the Directive. | ||
(4) A court shall construe this Act in a manner that gives effect to the Directive, and for this purpose the court shall have regard to the provisions of the Directive, including its preambles. | ||
(5) Notwithstanding Article 3(10) of the Directive but subject to sections 5 to 6A (inserted by section 99 ) of the Hallmarking Act 1981 , Part 3 applies to commercial practices relating to indications of the standard of fineness of articles of precious metal. | ||