(4)A regulation made under this section may apply to the whole State or to a prescribed geographical area of the State.
\n
(5)This section is in addition to section 49 (respecting certain surcharges being stated as part of price).
\n
Offence: price display contraventions.
\n
58.— A trader who contravenes a regulation under section 57 commits an offence and is liable on summary conviction to the fines and penalties provided in
\n
Chapter 4
\n
of
\n
Part 5
\n
.
\n
Offence: weighing facilities in grocery retail.
\n
59.— (1) In this section, “grocery retailer” means a trader who is a retailer within the meaning of section 15A of the Competition Act 2002 .
\n
(2)A grocery retailer who offers food for sale to consumers by weight (other than food packed for sale by its manufacturer or producer or by the person who supplied it for sale) shall— (a) provide a weighing scale, or weighing machine, that— (i) is in a public and prominent position on the premises where that food is sold, and (ii) subject to health and food safety considerations, is as near as reasonably possible to where that food is on display for sale, and (b) allow any person purchasing, or about to purchase, such food to weigh it or observe its weighing on the weighing scale or weighing machine in a manner that allows the person to see the reading of the weight provided by the scale or machine and to be informed of the resultant price before payment.
\n
(3)A grocery retailer who contravenes subsection (2)(a) or (b) commits an offence and is liable on summary conviction to the fines and penalties provided in
\n
Chapter 4
\n
of
\n
Part 5
\n
.
\n
Offence: preventing the reading of prices.
\n
60.— (1) A trader shall not, without reasonable cause, prevent a person from, or obstruct or interfere with that person in— (a) reading the prices displayed on or in relation to products supplied by the trader, or (b) entering premises for purposes described in paragraph (a), if those premises are where the trader supplies those products.
\n
(2)A trader who contravenes subsection (1)(a) or (b) commits an offence and is liable on summary conviction to the fines and penalties provided in
\n
Chapter 4
\n
of
\n
Part 5
\n
.
\n
State of emergency affecting supply of a product.
\n
61.— (1) If the Government are of the opinion that abnormal circumstances prevail or are likely to prevail in relation to the supply of a product, the Government may by order (“emergency order”) declare that a state of emergency affecting the supply of that product exists.
\n
(2)An emergency order may relate to one or more products and may define the products in such manner as the Government think fit.
\n
(3)Unless the term of an emergency order is extended under subsection (4) or (5) or the order is revoked, an emergency order— (a) remains in force for such term (not exceeding 6 months from the date that the order is made) that the Government think proper and specify in the order, and (b) expires at the end of the last day of the term specified.
\n
(4)Subject to subsection (5), if an emergency order is in force (“principal order”) and the Government are of the opinion that abnormal circumstances continue to prevail in relation to the supply of a product to which the order relates, the Government may make one order (“extension order”) in relation to that product extending the term of the principal order as it relates to that product for a period not exceeding 6 months from the date that the extension order is made.
\n
(5)If during the extended term under subsection (4), the Government are of the opinion that abnormal circumstances continue to prevail in relation to the supply of the product to which the extension order relates, the Government may make only one more order (“final extension order”) in relation to that product extending the term of the principal order as it relates to that product for a period not exceeding 6 months from the date that the final extension order is made.
\n
Power to fix maximum prices during state of emergency.
\n
62.— (1) If an emergency order is in force in respect of a product under section 61 , the Government may by order fix the maximum price at which that product may be supplied by a trader to consumers.
\n
(2)An order under subsection (1) may— (a) limit the application of the order to a class or type of the product, (b) specify conditions by reference to which a maximum price is fixed and may fix different maximum prices in relation to different conditions, (c) apply to the whole State, to a particular geographical area in the State, or to the supply of the product by a particular class or type of trader, (d) fix a maximum price by specifying it or by specifying the manner in which it is to be calculated, and (e) provide for any incidental or ancillary matter (including a requirement that the product to which the order relates shall be sold only in specified units of weight, measure or volume) that the Government consider necessary or expedient to give full effect to any provision of the order or to secure compliance with it.
\n
(3)Unless previously revoked, an order made under this section expires on the expiration of the emergency order in respect of which it is made.
\n
Offence: contravening maximum price orders.
\n
63.— A trader who contravenes an order made under section 62 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
\n
Chapter 4
\n
of
\n
Part 5
\n
.
\n
PART 4
\n
Pyramid Promotional Schemes Definition (Part 4).
\n
64.— (1) In this Part, “ pyramid promotional scheme ” means a scheme by which a person gives consideration in money or money’s worth, or gives a gift in money or money’s worth, for an opportunity to receive compensation derived primarily from the introduction of other persons into the scheme rather than from the supply or consumption of a product.
\n
(2)The following apply in respect of subsection (1): (a) the opportunity to receive compensation need not be limited to the person’s introduction of other persons into the scheme but may include their introduction by other persons; (b) the scheme may but need not involve the supply of a product.
\n
Indictable offence: participating in, establishing, operating or promoting pyramid promotional schemes.
\n
65.— (1) A person shall not— (a) establish, operate or promote a pyramid promotional scheme, (b) knowingly participate in such a scheme, or (c) induce or attempt to induce another person to participate in such a scheme.
\n
(2)A person who contravenes subsection (1) commits an offence.
\n
(3)In proceedings for an offence under this section or for a prohibition order under section 71 , it shall not be necessary for the prosecution or the applicant, as the case may be, to prove— (a) that the opportunity to receive compensation was a legally enforceable right, (b) that the consideration or gift given, as the case may be, was given within the State, (c) that giving consideration or a gift was the only requirement a person had to satisfy in order to— (i) participate or be eligible to participate in the scheme, or (ii) be eligible or have opportunity to receive compensation under the scheme, (d) that any compensation received was received within the State, (e) that any opportunity to receive compensation was to be a receipt of such compensation within the State, or (f) that any arrangements under the scheme were recorded in writing.
\n
(4)If, in proceedings for an offence under this section or for a prohibition order under section 71 , the alleged pyramid promotional scheme involves the supply of a product, then the following may be considered (among other things) in determining whether the opportunity to receive compensation is derived primarily from the introduction of other persons into the scheme: (a) in respect of a promotion of the scheme, the emphasis given to a participant’s entitlement to the product, as compared to the emphasis given to compensation derived from the introduction of other persons into the scheme; (b) the extent to which the consideration given bears a reasonable relationship to the product, by reference to the price of the same or a comparable product available elsewhere.
\n
(5)A person guilty of an offence under this section is liable on conviction on indictment to the fines and penalties provided in
\n
Chapter 4
\n
of
\n
Part 5
\n
.
\n
Pyramid promotional scheme agreements void.
\n
66.— (1) An agreement between a scheme promoter and another person is, to the extent it requires or provides for payment of money or money’s worth in respect of a pyramid promotional scheme, void and has no effect, and no action lies in any court for the recovery of such money or money’s worth under or pursuant to such agreement.
\n
(2)For the purposes of subsection (1), a “scheme promoter” means a person who establishes, operates or promotes a pyramid promotional scheme or who induces or attempts to induce others to participate in such a scheme, and includes any person acting on a scheme promoter’s behalf.
\n
PART 5
\n
Proceedings, Remedies and Penalties
\n
Chapter 1
\n
Interpretation and General Matters related to Proceedings Definition (Part 5).
\n
67.— In this Part “prohibited act or practice” means any of the following: (a) any unfair, misleading or aggressive commercial practice under
\n
Part 3
\n
; (b) any contravention of section 48
\n
(3)or 49
\n
(1); (c) any contravention of section 55
\n
(1)or (3), 59
\n
(2)or 60
\n
(1); (d) any contravention of section 65
\n
(1); (e) any contravention of a regulation under section 50 or 57 or an order referred to in section 92 ; (f) any contravention of an order under section 62
\n
(1), but subject to the exclusion of one or more of the foregoing provisions provided for in section 71 , 73 , 74 or 75 .
\n
Presumption respecting representations.
\n
68.— If, in any proceedings under this Act, the truth of a factual claim in a representation is an issue and the trader who made the representation, or on whose behalf the representation was made, does not establish on the balance of probabilities that it is true, then the representation shall be presumed to be untrue.
\n
Advertisers.
\n
69.— (1) In this section: “advertiser” means a person who publishes advertisements; “ contravening advertisement ” means— (a) an unfair, misleading or aggressive commercial practice in the form of an advertisement, or (b) an advertisement that is— (i) a prohibited commercial practice under section 55
\n
(1)or (3), (ii) in contravention of section 49
\n
(1), or (iii) in contravention of a regulation under section 50
\n
(2).
\n
(2)An advertiser who publishes a contravening advertisement on behalf of a trader does not commit an offence under section 47 , 49
\n
(3), 51
\n
(2)or 56 and is not liable under section 74 (respecting consumer’s right of action for damages) if the advertiser proves that the advertiser did not know and had no reason to suspect that its publication would be in contravention of section 41
\n
(1), 42 , 49
\n
(1), 50
\n
(2), 51
\n
(2), 52 , 54 , 55
\n
(1)or (3) or 56 .
\n
(3)An advertiser who accepts or agrees to publish an advertisement for a trader shall— (a) make a record of the name and address of that trader, and (b) keep that record for not less than 2 years from the last day on which the advertisement is published.
\n
(4)An advertiser who contravenes subsection (3) commits an offence and is liable on summary conviction to the fines and penalties provided in
\n
Chapter 4
\n
.
\n
Offence of trader due to act or default of another person.
\n
70.— (1) If, in relation to a commercial practice of a trader, the trader commits an offence under this Act and its commission is due to the act or default of another person, that other person shall also be guilty of an offence and may be charged with and convicted of it whether or not proceedings for an offence are brought against the trader.
\n
(2)A person guilty of an offence under subsection (1) is liable on conviction to the same range of fines and penalties provided in
\n
Chapter 4
\n
that the trader referred to in subsection (1) is or would be liable in respect of that offence.
\n
Chapter 2
\n
Civil Proceedings Civil relief by way of prohibition orders.
\n
71.— (1) In this section “prohibited act or practice” does not include a contravention of section 59
\n
(2)(respecting weighing facilities in grocery retail) or section 60
\n
(1)(respecting preventing the reading of prices).
\n
(2)Any person, including the Agency or any other public body that is prescribed for the purposes of this subsection, may apply to the Circuit Court or High Court for an order prohibiting a trader or person from committing or engaging in a prohibited act or practice.
\n
(3)An application under subsection (2) shall be on notice to— (a) the trader or person against whom the order is sought, and (b) the Agency, if the applicant is not the Agency.
\n
(4)In determining an application under this section, the court shall consider all interests involved and, in particular, the public interest.
\n
(5)If the applicant for an order under this section is not the Agency, the court may not make the order unless the Agency has been afforded an opportunity to be heard and adduce evidence.
\n
(6)If the court considers it necessary or appropriate in the circumstances, taking into account all interests involved and, in particular, the public interest, the court may make an order under this section without proof of any actual loss or damage or of any intention or negligence on the part of the trader.
\n
(7)In making an order under this section, the court may impose terms or conditions in the order that the court considers appropriate, including a requirement that the trader or person publish a corrective statement, at the trader’s or person’s own expense and in any manner the court considers appropriate, in respect of the matters the subject of the order.
\n
(8)An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the prohibited act or practice concerned is being committed or engaged in.
\n
(9)The Circuit Court shall have jurisdiction to hear and determine an application under this section which it is satisfied it is appropriate for it to deal with as a court of local and limited jurisdiction and, for the purpose of the court’s satisfying itself of that matter, the matters to which it shall have regard include— (a) the nature and extent of the prohibited act or practice concerned, and (b) the estimated cost of complying with the order to which the application relates.
\n
(10)If, in relation to an application under this section to the Circuit Court, that court becomes of the opinion, during the hearing of the application, that it is not appropriate for the Circuit Court to deal with the application, it may, if it so thinks fit, transfer the application to the High Court.
\n
(11)Subsection (10) is without prejudice to the jurisdiction of the Circuit Court to determine an application under this section which, at the time of the making of the application, it was satisfied it had jurisdiction to deal with.
\n
(12)Where an application is transferred under subsection (10) to the High Court, the High Court shall be deemed to have made any order of a procedural nature that was made by the court from which it is so transferred in the proceedings in relation to the application.
\n
(13)A trader commits an offence who, without reasonable excuse, fails to comply with an order under this section and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in
\n
Chapter 4
\n
.
\n
Prohibition orders against code owners.
\n
72.— (1) In this section, “ code owner ” means, in relation to a code of practice, any person responsible for formulating or revising the code or for monitoring compliance by those traders who agree, commit or undertake to abide or be bound by it.
\n
(2)If a code of practice or its code owner promotes any prohibited act or practice, the Agency may apply to the Circuit Court or High Court for an order prohibiting the code owner from such promotion or requiring the code owner to withdraw the code or amend it as the court considers necessary to prevent such promotion.
\n
(3)An application under subsection (2) shall be on notice to the code owner.
\n
(4)In determining an application under this section, the court shall consider all interests involved and, in particular, the public interest.
\n
(5)In making an order under subsection (2), the court may impose terms or conditions in the order that the court considers appropriate.
\n
(6)Subsections (8) to (12) of section 71 apply to an application under this section as they apply to an application under that section with the following modifications— (a) the substitution in subsection (8) of “in which the code owner is promoting the prohibited act or practice concerned or in which the code owner resides or carries on any business or profession” for “in which the prohibited act or practice concerned is being committed or engaged in”, and (b) the substitution in subsection (9) of the following paragraph for paragraph (a): “(a) the nature and extent of the prohibited act or practice being promoted by the code of practice concerned or its code owner,”.
\n
(7)A code owner commits an offence who, without reasonable excuse, fails to comply with an order under this section and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in
\n
Chapter 4
\n
.
\n
Undertakings with the Agency.
\n
73.— (1) In this section “ prohibited act or practice ” does not include a contravention of section 59
\n
(2)(respecting weighing facilities in grocery retail) or section 60
\n
(1)(respecting preventing the reading of prices).
\n
(2)If the Agency has reason to believe that a trader— (a) is committing or engaging in a prohibited act or practice, (b) is about to commit or engage in a prohibited act or practice, or (c) has committed or engaged in a prohibited act or practice, the Agency may accept from the trader a written undertaking that is signed by the trader in the form and which contains the terms and conditions the Agency determines are appropriate in the circumstances.
\n
(3)If the Agency accepts an undertaking from a trader under this section, the Agency shall publish the undertaking, or cause it to be published, in any form or manner the Agency considers appropriate.
\n
(4)Without limiting subsection (2), the undertaking may include one or more of the following terms and conditions: (a) an undertaking to comply with the provision or provisions concerned of this Act or regulations under this Act; (b) an undertaking to refrain from committing or engaging in any act or practice; (c) an undertaking to compensate consumers or a class of consumers, including reimbursing any money or returning any other property or thing received from consumers in connection with a consumer transaction; (d) an undertaking to publish or cause to be published, at the trader’s expense, an advertisement containing a corrective statement relating to the prohibited act or practice.
\n
(5)If the trader under subsection (2) is a body corporate, the undertaking shall be signed by a director, manager, secretary or other officer of the trader.
\n
(6)The Agency may terminate proceeding against a trader under section 71 (respecting civil relief by way of prohibition orders) on the acceptance of an undertaking from the trader.
\n
(7)Despite subsection (6), the Agency may apply for an order against a trader under section 71 if the trader fails to comply with the terms and conditions of an undertaking under this section.
\n
(8)Subsections (2) to (5) shall, with the following modifications and any other necessary modifications, apply in respect of any trader the Agency has reason to believe is contravening, is about to contravene or has contravened an enactment specified in Schedule 4 , namely, the modifications that— (a) references in those subsections to a prohibited act or practice shall be read as references to a contravention of an enactment specified in that Schedule, and (b) the reference in subsection (4)(a) to the provision or provisions concerned of this Act or regulations under this Act shall be read as a reference to the provision or provisions concerned of that enactment.
\n
(9)If compensation is paid to a consumer pursuant to an undertaking referred to in subsection (4)(c) and the consumer subsequently commences an action under section 74 and is awarded damages by the court in respect of the same prohibited act or practice, the compensation paid under the undertaking is deemed to be in satisfaction of so much of the awarded damages as is equal to the amount paid to the consumer under that undertaking.
\n
Consumer's right of action for damages.
\n
74.— (1) In this section, “prohibited act or practice” does not include— (a) a misleading commercial practice described in section 45 , or (b) a contravention of section 65
\n
(1)(respecting pyramid promotional schemes).
\n
(2)A consumer who is aggrieved by a prohibited act or practice shall have a right of action for relief by way of damages, including exemplary damages, against the following: (a) any trader who commits or engages in the prohibited act or practice; (b) if such trader is a body corporate, any director, manager, secretary or other officer of the trader, or a person who purported to act in any such capacity, who authorised or consented to the doing of the act or the engaging in of the practice.
\n
(3)Subject to subsection (4), an action under this section may be brought in the District Court, the Circuit Court or the High Court and such a court may, in that action, award such damages as the court considers appropriate, including exemplary damages.
\n
(4)If the action is brought in the District Court or the Circuit Court, any relief by way of damages, including exemplary damages, shall not, except by consent of the necessary parties in such form as may be provided for by rules of court, be in excess of the limit of jurisdiction of the District Court or the Circuit Court, as the case may be, in an action founded on tort.
\n
(5)Where in an action under this section it is proved that the act or practice complained of was done or engaged in by a body corporate it shall be presumed, until the contrary is proved, that each (if any) director of the body and person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the body, and any other person who purported to act in any such capacity at the material time, consented to the doing of that act or the engaging in of that practice.
\n
Chapter 3
\n
Compliance Notices Compliance notices.
\n
75.— (1) In this section “ prohibited act or practice” does not include a contravention of a regulation under section 57 (respecting price display regulations).
\n
(2)An authorised officer who is of the opinion that a person is committing or engaging in, or has committed or engaged in, a prohibited act or practice or is contravening or has contravened an enactment specified in Schedule 5 may serve, personally or by post, a written notice on that person (a “compliance notice”).
\n
(3)A compliance notice shall be signed and dated by the authorised officer and shall— (a) contain a statement of the alleged contravention (identifying the relevant enactment), the opinion referred to in subsection (2) and the reasons for that opinion, (b) direct the person to remedy the contravention or the matters occasioning that notice, including any other requirement that the authorised officer considers appropriate in order to remedy the contravention or matter (the “compliance direction and requirements”), (c) specify the date by which the person is to comply with the compliance direction and requirements, (d) contain a statement that the person may appeal the notice to the District Court within 14 days after service of the notice, including information specifying— (i) the form and manner of such an appeal, and (ii) the service address of the Agency for purposes of notifying the Agency under subsection (6), and (e) contain a statement that, if an appeal is not made in accordance with this section and within the time specified in paragraph (d), then— (i) the notice will be treated as not disputed, (ii) the person will be deemed to have accepted the notice and have agreed to comply with the compliance direction and requirements, and (iii) any failure or refusal to so comply is an offence and, on summary conviction, the person will be liable to the fine and penalties set out in
\n
Chapter 4
\n
.
\n
(4)The date specified under subsection (3)(c) shall not be earlier than the end of the period within which an appeal may be made under subsection (5).
\n
(5)If the person on whom the compliance notice is served wishes to dispute the notice, the person may, no later than 14 days after the notice is served and in accordance with this section and in the form and manner specified in the notice, appeal the notice to a judge of the District Court in the district court district in which the notice was served.
\n
(6)A person who appeals under subsection (5) shall at the same time notify the Agency of the appeal and the grounds for the appeal and the Agency shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.
\n
(7)In determining an appeal under this section, the judge may confirm, vary or cancel the compliance notice, if satisfied that it is reasonable to do so.
\n
(8)If on appeal the compliance notice is not cancelled, the notice takes effect on the later of the following: (a) the day after the day on which the notice is confirmed or varied on appeal; (b) if the appeal is withdrawn by the appellant, the day after the day it is withdrawn; (c) the day specified in the notice.
\n
(9)If there is no appeal under subsection (5), the compliance notice takes effect on the later of the following: (a) 14 days after the notice is served on the person; (b) the day specified in the notice.
\n
(10)An authorised officer may— (a) withdraw a compliance notice at any time, or (b) if no appeal is made or pending under subsection (5), extend the date specified in the notice under subsection (3)(c).
\n
(11)A person commits an offence who, without reasonable excuse, fails to comply with a compliance direction or requirement specified in a compliance notice and, on summary conviction, is liable to the fines and penalties provided in
\n
Chapter 4
\n
.
\n
(12)Withdrawal of a compliance notice under subsection (10) does not prevent the service of another compliance notice, whether in respect of the same matter or a different matter.
\n
(13)If a compliance notice takes effect in accordance with this section, the Agency shall publish the compliance notice, or cause it to be published, in any form or manner the Agency considers appropriate.
\n
(14)Nothing in this section prevents the commencement of proceedings for an offence.
\n
Chapter 4
\n
Criminal Proceedings Time limit for instituting proceedings.
\n
76.— Notwithstanding any provision in any enactment specifying the period within which proceedings may be commenced, a prosecution for an offence under this Act may be brought at any time within 2 years after the date of the alleged commission of the offence.
\n
Liability for offences by bodies corporate.
\n
77.— (1) 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.
\n
(2)If, in a prosecution for an offence against the person referred to in subsection (1), 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.
\n
(3)Subsection (2) 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.
\n
(4)If the affairs of a body corporate are managed by its members, subsections (1) and (2) 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.
\n
(5)If a body corporate commits an offence under this Act, an employee, officer, director or agent of the body corporate who authorises, permits or acquiesces in the commission of the offence also commits an offence, whether or not the body corporate is prosecuted for the offence.
\n
(6)In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, officer, director or agent of the defendant, whether or not the employee, officer, director or agent is identified or has been prosecuted for the offence.
\n
(7)Subsection (6) does not apply if the defendant establishes that the defendant exercised due diligence to prevent the commission of the offence.
\n
Defence of due diligence.
\n
78.— (1) In proceedings for an offence under this Act, other than an offence under section 65
\n
(2), it is a defence for the accused to prove both of the following: (a) commission of the offence was due to a mistake or the reliance on information supplied to the accused or to the act or default of another person, an accident or some other cause beyond the accused’s control; (b) the accused exercised due diligence and took all reasonable precautions to avoid commission of the offence.
\n
(2)If the defence provided by subsection (1) involves the allegation that the commission of the offence was due to reliance on information supplied by another person or to the act or default of another person, the accused shall not, without leave of the court, be entitled to rely on that defence unless, not less than 7 working days before the hearing, the accused has served on the prosecutor written notice providing information identifying or assisting in the identification of that other person.
\n
Fines and penalties.
\n
79.— (1) A person guilty of an offence under this Act (other than an offence under section 65
\n
(2)) is liable on summary conviction to the following fines and penalties: (a) on a first summary conviction for any such offence, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both; (b) on any subsequent summary conviction for the same offence or any other offence under this Act (other than an offence under section 65
\n
(2)), to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.
\n
(2)If, after being convicted of an offence, the person referred to in subsection (1) continues to contravene the requirement or prohibition to which the offence relates, the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable on summary conviction to a fine not exceeding €500.
\n
(3)A person guilty of an offence under this Act (other than an offence under any of the excluded sections) is liable on conviction on indictment to the following fines and penalties: (a) on a first conviction on indictment for any such offence, to a fine not exceeding €60,000 or imprisonment for a term not exceeding 18 months or both; (b) on any subsequent conviction on indictment for the same offence or any other offence under this Act (other than an offence under any of the excluded sections), to a fine not exceeding €100,000 or imprisonment for a term not exceeding 24 months or both.
\n
(4)In subsection (3) “excluded sections” means sections 30
\n
(11), (12) and (15), 32
\n
(3), 48
\n
(5), 49
\n
(3), 51
\n
(1)and (2), 58 , 59
\n
(3), 60
\n
(2), 65
\n
(2), 69
\n
(4), 75
\n
(11)and 101
\n
(5).
\n
(5)If, after being convicted of an offence, the person referred to in subsection(3) continues to contravene the requirement or prohibition to which the offence relates, the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable— (a) on summary conviction, to a fine not exceeding €500, and (b) on conviction on indictment, to a fine not exceeding €10,000.
\n
(6)A person guilty of an offence under section 65
\n
(2)is liable on conviction on indictment to a fine not exceeding €150,000 or imprisonment for a term not exceeding 5 years or both.
\n
(7)If, after being convicted of an offence under section 65
\n
(2), a person continues to contravene section 65
\n
(1), the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable on conviction on indictment to a fine not exceeding €10,000.
\n
(8)In considering an appropriate penalty under this section for a trader convicted of an offence under section 47 , 51
\n
(2)or 56 , the court may take into consideration any advertisement published by or on behalf of the trader containing corrective statements to remedy the prohibited act or practice in respect of which the trader is convicted.
\n
(9)
\n
Section 13
\n
of the Criminal Procedure Act 1967 applies in relation to an offence under this Act except that the following range of fines and penalties are to be substituted for those provided in section 13(3)(a) of the Criminal Procedure Act 1967 : (a) if it is a first conviction for an offence under this Act, the accused is liable to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both; (b) if it is not a first conviction for an offence under this Act, the accused is liable to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.
\n
Convicted persons liable for costs and expenses of proceedings and investigation.
\n
80.— (1) On convicting a person of an offence under this Act, the court shall, unless satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Agency the costs and expenses, measured by the court, incurred by the Agency in relation to the investigation, detection and prosecution of the offence.
\n
(2)An order for costs and expenses under subsection (1) is in addition to and not instead of any fine or penalty the court may impose.
\n
Convicted traders liable to compensate consumers for loss or damage.
\n
81.— (1) If a trader is convicted of an offence under this Act (other than an offence under section 65
\n
(2)), the Agency may, on behalf of an aggrieved consumer who consents to the application, apply to the court for an order (a “compensation order”) requiring the trader (the “trader concerned”) to pay an amount of money the court considers appropriate compensation in respect of any loss or damage to that consumer resulting from that offence.
\n
(2)A compensation order may be instead of or in addition to any fine or penalty the court may impose on the trader concerned.
\n
(3)The compensation payable under a compensation order— (a) shall be of such amount as the court considers appropriate (though not exceeding the amount set by law as the limit of the court’s jurisdiction in tort), having regard to any evidence and to any submissions made by or on behalf of the trader concerned, the aggrieved consumer, the Agency or the prosecutor, and (b) shall not exceed the amount of the damages that, in the opinion of the court, the aggrieved consumer would be entitled to recover in an action under section 74 (respecting a consumer’s right of action for damages) in respect of the same prohibited act or practice.
\n
(4)An application shall not be made under subsection (1) if the aggrieved consumer has brought an action under section 74 against the trader concerned and the action is in respect of the same prohibited act or practice for which the trader concerned is convicted.
\n
(5)If the amount of compensation payable under a compensation order is paid to the aggrieved consumer under this section and the consumer subsequently commences an action under section 74 and is awarded damages by the court in respect of the same prohibited act or practice, the compensation order is deemed to be in satisfaction of so much of the awarded damages as is equal to the first-mentioned amount.
\n
(6)If the trader concerned does not comply with a compensation order— (a) within the time ordered by the court, or (b) within 30 days after the order is made, if no time is specified in the order, the aggrieved consumer may enter judgment in the District Court or, as appropriate, the Circuit Court by filing the order with that court in the District Court district or, as appropriate, the circuit where the conviction was entered.
\n
(7)A judgment entered in the District Court or the Circuit Court under subsection (6) is enforceable against the trader concerned in the same manner as if it were a judgment rendered in that court in civil proceedings.
\n
Court may order convicted person to publish corrective statement.
\n
82.— (1) This section applies to a person— (a) convicted of an offence under section 47 (respecting misleading commercial practices), 56 (respecting prohibited commercial practices) or 65
\n
(2)(respecting pyramid promotional schemes), or (b) convicted of such an offence pursuant to section 70
\n
(1)(respecting offences of traders due to act or default of another person).
\n
(2)On conviction of the person to whom this section applies and on application of the Agency, the court may, in addition to any fine or penalty imposed, order the person to publish, at the person’s expense and in any manner the court considers appropriate, the facts relating to the commission of the offence and a corrective statement in respect of those facts.
\n
(3)The court may, based on the submissions of the Agency in the application and as the court considers appropriate, specify the form and content of the corrective statement or give any directions in respect of the publication of that statement.
\n
Summary trial of persons indicted.
\n
83.— (1) If a person is indicted for an offence under this Act, the District Court may try the person summarily if— (a) the court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily, (b) the accused, on being informed by the court of his or her right to be tried with a jury, does not object to being tried summarily, and (c) the Director of Public Prosecutions consents to the accused being tried summarily for the offence.
\n
(2)On conviction by the court for an offence under section 65
\n
(2)that is tried summarily under subsection (1), the following apply: (a) the accused is liable to the following fines and penalties: (i) if it is a first conviction for an offence under this Act, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both; (ii) if it is not a first conviction for an offence under this Act, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both; (b) section 80 (respecting liability for costs and expenses of proceedings and investigation); (c) section 82 (publication of a corrective statement).
\n
(3)However, if after conviction referred to in subsection (2), the accused continues to contravene section 65
\n
(1), the accused is guilty of a further offence on each day that the contravention continues and for each such offence is liable— (a) on summary conviction, to a fine not exceeding €500, and (b) on conviction on indictment, to a fine not exceeding €10,000.
\n
(4)On conviction by the court for any offence that is tried summarily under subsection (1) other than an offence under section 65
\n
(2), the following apply: (a) the accused is liable to the fines and penalties described in section 79
\n
(1)(respecting fines and penalties); (b) section 80 (respecting liability for costs and expenses of proceedings and investigation); (c) section 82 (publication of a corrective statement).
\n
Agency may institute summary proceedings for offences.
\n
84.— Summary proceedings for an offence under this Act, except an offence under section 65
\n
(2), may be brought and prosecuted by the Agency.
\n
Chapter 5
\n
Fixed Payment Notices Fixed payment notices for price display and product pricing offences.
\n
85.— (1) This section applies in respect of any offence under the following enactments (in this section referred to as a “relevant offence”): (a) section 58 (respecting price display regulations); (b) section 22 (a) or (b) of the Prices Act 1958 (respecting price display orders); (c) Regulation 4(3), 5(5), 6(3) or 7(2) of the European Communities (Requirements to Indicate Product Prices) Regulations 2002 ( S.I. No. 639 of 2002 ).
\n
(2)An authorised officer who has reasonable grounds for believing that a person is committing, or has committed, a relevant offence may serve, personally or by post, the notice referred to in subsection (3) on the person.
\n
(3)The notice (“fixed payment notice”) shall be in the prescribed form and state— (a) that the person on whom it is served is alleged to have committed the relevant offence concerned, (b) when and where it is alleged to have been committed, (c) that a prosecution for it will not be instituted if, during the period of 28 days beginning on the date of the notice, the person pays the amount of €300 to the Agency (at the address stated in the notice) and submits the original or a copy of the fixed payment notice together with that payment, and (d) that in default of such payment, the person will be prosecuted for the alleged relevant offence.
\n
(4)A payment referred to in subsection(3) shall be accompanied by the original or a copy of the fixed payment notice concerned.
\n
(5)If a fixed payment notice is served on a person— (a) the person may make a payment in accordance with subsection (3)(c), (b) the Agency shall receive and retain the payment (subject to subsection (7)) and issue a receipt for it, (c) any payment received shall not be recoverable by the person who made it, and (d) a prosecution in respect of the alleged relevant offence to which the notice relates shall not be instituted during the period specified in subsection (3)(c) or, if a payment is made in accordance with subsections (3)(c) and (4, at all.
\n
(6)In proceedings against a person for a relevant offence it shall be presumed, until the contrary is shown, that the person did not make payment in accordance with subsections (3)(c) and (4).
\n
(7)Payments received by the Agency under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance directs.
\n
Chapter 6
\n
Publication of Trader Names (Consumer Protection List) Agency may publish information respecting certain persons.
\n
86.— (1) The Agency shall keep and maintain a list (the “consumer protection list”) of names and addresses of the following persons, together with a description of their trade, business or profession and the particulars described in subsection (2): (a) any person on whom a fine or other penalty was imposed by a court under the relevant statutory provisions or who was required, by an order under section 81 , to pay an amount of money to a consumer; (b) any person against whom an order is made under section 71 (respecting civil relief by way of prohibition orders); (c) any person who gives an undertaking to the Agency under section 73 ; (d) any person against whom a compliance notice takes effect under section 75
\n
(7)or (8) (respecting compliance notices); (e) any person who makes payment to the Agency pursuant to a fixed payment notice under section 85 .
\n
(2)The consumer protection list shall specify, in relation to each person named in the list, any particulars the Agency considers appropriate in respect of the following: (a) the matter occasioning any fine or penalty imposed on the person by the court and the amount or nature of that fine or penalty; (b) the matter occasioning any order made by the court against the person and the nature of that order; (c) the matter occasioning any undertaking given to the Agency by the person under this Act; (d) the matter occasioning any compliance notice served on the person under this Act; (e) the matter occasioning any fixed payment notice under this Act.
\n
(3)The Agency may, at any time and in any form or manner the Agency considers appropriate, publish or cause to be published all or any part of the consumer protection list.
\n
PART 6
\n
Miscellaneous Protections for persons reporting breaches.
\n
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.
\n
(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.
\n
(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.
\n
(4)Schedule 6 shall have effect for the purposes of subsection (3).
\n
(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
\n
Chapter 4
\n
of
\n
Part 5
\n
.
\n
(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).
\n
Voluntary submission of codes for Agency review and approval.
\n
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.
\n
(2)The code of practice shall be submitted in the form and manner specified by the Agency.
\n
(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).
\n
(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.
\n
(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.
\n
(6)The approval by the Agency of a code of practice or any amendments to such code shall be in writing.
\n
(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.
\n
(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.
\n
Admissibility of codes of practice in proceedings.
\n
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.
\n
Agency guidelines.
\n
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
\n
(2)(m); (d) the form and manner of submitting codes of practice to the Agency for approval under section 88 .
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
Saving for certain contracts.
\n
91.— Subject to section 66
\n
(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.
\n
Saving of current price display orders.
\n
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 ).
\n
(2)The Minister may by regulation amend or revoke any order referred to in subsection (1).
\n
Transitional.
\n
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
\n
(2)until any such enactment is revoked, substituted by regulation of the Minister under section 50
\n
(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 ).
\n
(2)
\n
Section 3
\n
(2)does not apply to the enactments referred to in subsection (1)(a) to (c).
\n
(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 .
\n
(4)For certainty, the references in sections 51
\n
(2)and 69
\n
(1)(in paragraph (b)(iii) of the definition of “contravening advertisement”) to a regulation under section 50
\n
(2)include any enactment referred to in subsection (1)(a) to (c).
\n
Amendment of Central Bank Act 1942.
\n
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 .
\n
(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;”.
\n
(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
\n
(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.”.
\n
(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.”.
\n
(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”.
\n
(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 : “ No. - of 2007 Consumer Protection Act 2007 The whole Act ”, 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 ): “ S.I. No. 27 of 1995 European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 The whole instrument ”, 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 ): “ S.I. No. 307 of 2000 European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2000 The whole instrument .”.
\n
Amendment of Sale of Goods and Supply of Services Act 1980.
\n
95.—
\n
Section 6
\n
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.
\n
(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.
\n
(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.
\n
(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.”.
\n
Saving for other rights person may have.
\n
96.— This Act shall not affect any rights which a person may have under any other enactment or under any rule of law.
\n
Amendment of Industrial Development Act 1993.
\n
97.— The following section is inserted after section 9 of the Industrial Development Act 1993 : “Validation of assignment of powers and functions.
\n
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 .
\n
(2)The relevant assignment shall be deemed to have come into operation on 25 July 2003.
\n
(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.”.
\n
Amendment of Casual Trading Act 1995.
\n
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.
\n
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.
\n
(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.
\n
(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.
\n
(4)The Minister may amend or revoke, in writing, guidelines issued under this section.
\n
(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.”.
\n
Amendment of Hallmarking Act 1981.
\n
99.— The following sections are substituted for sections 5 and 6 of the Hallmarking Act 1981 : “False representations in relation to certain articles.
\n
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
\n
(1)and (2) of the Consumer Protection Act 2007.
\n
(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.
\n
Permissible representations in relation to certain articles.
\n
6.— (1) Section 5 of this Act does not apply to a representation which is permissible under this Act.
\n
(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.
\n
(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.
\n
Construction of certain expressions in sections 5 and 6.
\n
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.”.
\n
Power of officer of customs and excise to detain unsafe goods.
\n
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.
\n
Directions under certain instruments respecting product safety: actions of third parties.
\n
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.
\n
(2)In this section a reference to a product concerned is a reference to a product to which the relevant direction relates.
\n
(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.
\n
(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.
\n
(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
\n
Chapter 4
\n
of
\n
Part 5
\n
.
\n
(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.
\n
Admissibility of certain laboratory tests.
\n
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.
\n
(2)Those proceedings are proceedings under any of the statutory instruments specified in Schedule 7 .
\n
(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 .
\n
(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.
\n
SCHEDULE 1 Existing Enactments
\n
Section 2
\n
.
\n
PART 1
\n
Enactments — Acts of the Oireachtas Number and Year Short Title
\n
(1)
\n
(2)No. 31 of 1964 Pawnbrokers Act 1964 No. 10 of 1970 Merchandise Marks Act 1970 No. 35 of 1979 Occasional Trading Act 1979 No. 16 of 1980 Sale of Goods and Supply of Services Act 1980 No. 23 of 1980 Trading Stamps Act 1980 No. 28 of 1991 Liability for Defective Products Act 1991 No. 17 of 1995 Package Holidays and Travel Trade Act 1995 No. 24 of 1995 Consumer Credit Act 1995 No. 28 of 1996 National Standards Authority of Ireland Act 1996 No. 29 of 1998 Food Safety Authority of Ireland Act 1998
\n
PART 2
\n
Enactments made under the European Communities Act 1972 which are existing Enactments Number and Year Citation
\n
(1)
\n
(2)S.I. No. 134 of 1988 European Communities (Misleading Advertising) Regulations 1988 S.I. No. 224 of 1989 European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations 1989 S.I. No. 32 of 1990 S.I. No. 458 of 1994 European Communities (Safety of Toys) Regulations 1990 and 1994 S.I. No. 265 of 1991 European Communities (Food Imitations) (Safety) Order 1991 S.I. No. 101 of 1992 S.I. No. 150 of 1995 European Communities (Appliances Burning Gaseous Fuels) Regulations 1992 and 1995 S.I. No. 428 of 1992 S.I. No. 307 of 1994 European Communities (Low Voltage Electrical Equipment) Regulations 1992 and 1994 S.I. No. 272 of 1993 S.I. No. 13 of 1994 S.I. No. 457 of 1994 S.I. No. 81 of 1997 European Communities (Personal Protective Equipment) Regulations 1993 to 1997 S.I. No. 27 of 1995 S.I. No. 307 of 2000 European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 S.I. No. 63 of 1996 European Communities (Labelling of Footwear) Regulations 1996 S.I. No. 204 of 1997 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) Regulations 1997 S.I. No. 144 of 2000 European Communities (Contracts for Time Sharing of Immovable Property – Protection for Purchasers) (Amendment) Regulations 2000 S.I. No. 245 of 1998 European Communities (Names and Labelling of Textile Products) Regulations 1998 S.I. No. 254 of 1998 European Communities (Definition, Description and Presentation of Aromatized Wines, Aromatized Wine-Based Drinks and Aromatized Wine-Product Cocktails) Regulations 1998 S.I. No. 262 of 1998 European Communities (Use of Standards for the Transmission of Television Signals) Regulations 1998 S.I. No. 401 of 2000 European Communities (Liability for Defective Products) Regulations 2000 S.I. No. 207 of 2001 European Communities (Protection of Consumers in Respect of Contracts made by Means of Distance Communication) Regulations 2001 S.I. No. 449 of 2001 European Communities (Protection of Consumers’ Collective Interests) Regulations 2001 S.I. No. 483 of 2002 S.I. No. 257 of 2003 S.I. No. 451 of 2003 S.I. No. 528 of 2003 S.I. No. 228 of 2005 S.I. No. 514 of 2005 S.I. No. 647 of 2005 European Communities (Labelling, Presentation and Advertising of Foodstuffs) Regulations 2002 to 2005 S.I. No. 639 of 2002 European Communities (Requirements to Indicate Product Prices) Regulations 2002 S.I. No. 11 of 2003 European Communities (Sale of Consumer Goods and Associated Guarantees) Regulations 2003 S.I. No. 68 of 2003 European Communities (Directive 2000/31/EC) Regulations 2003
\n
S.I. No. 490 of 2004 European Communities (Amendment of S.I. No. 68 of 2003 ) Regulations 2004 S.I. No. 236 of 2003 European Communities (Marketing of Cocoa and Chocolate Products) Regulations 2003 S.I. No. 240 of 2003 European Communities (Marketing of Fruit Juices and Certain Similar Products) Regulations 2003 S.I. No. 289 of 2003 European Communities (Marketing of Sugar Products) Regulations 2003 S.I. No. 294 of 2003 European Communities (Marketing of Fruit Jams, Jellies, Marmalades and Sweetened Chestnut Purée) Regulations 2003 S.I. No. 298 of 2003 European Communities (Dehydrated Preserved Milk) Regulations 2003 S.I. No. 307 of 2003 European Communities (Electronic Communications, Networks and Services) (Framework) Regulations 2003 S.I. No. 308 of 2003 European Communities (Electronic Communications, Networks and Services) (Universal Services and Users’ Rights) Regulations 2003 S.I. No. 367 of 2003 European Communities (Marketing of Honey) Regulations 2003 S.I. No. 199 of 2004 European Communities (General Product Safety) Regulations 2004 S.I. No. 397 of 2004 European Communities (Marketing Standards for Olive Oil) Regulations 2004 S.I. No. 853 of 2004 European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004 S.I. No. 290 of 2006 European Communities (Co-operation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) Regulations 2006 SCHEDULE 2 Repeals
\n
Section 4
\n
.
\n
Session and Chapter or Number and Year Short Title Extent of Repeal
\n
(1)
\n
(2)
\n
(3)50 & 51 Vic., c. 28 Merchandise Marks Act 1887 The whole Act 54 & 55 Vic., c. 15 Merchandise Marks Act 1891 The whole Act 1 & 2 Geo. 5., c. 31 Merchandise Marks Act 1911 The whole Act 5 & 6 Geo. 5., c. 1 Anglo-Portuguese Commercial Treaty Act 1914 The whole Act 6 & 7 Geo. 5., c. 39 Anglo-Portuguese Commercial Treaty Act 1916 The whole Act No. 10 of 1930 Agricultural Produce (Fresh Meat) Act 1930
\n
Section 27(4) and (5)
\n
No. 35 of 1930 Portuguese Treaty Act 1930 The whole Act No. 26 of 1931 Agricultural Produce (Potatoes) Act 1931
\n
Section 19(4) and (5)
\n
No. 48 of 1931 Merchandise Marks Act 1931 The whole Act No. 6 of 1936 Spanish Trade Agreement Act 1936 The whole Act No. 14 of 1955 Seed Production Act 1955
\n
Section 22(3)
\n
No. 4 of 1958 Prices Act 1958 The whole Act, except to the extent specified in section 92 No. 25 of 1968 Road Traffic Act 1968
\n
Section 14(1), (2) and (3)
\n
No. 20 of 1972 Prices (Amendment) Act 1972 The whole Act No. 1 of 1978 Consumer Information Act 1978 The whole Act No. 11 of 1980 Packaged Goods (Quantity Control) Act 1980
\n
Section 12(1)
\n
No. 27 of 1980 Pyramid Selling Act 1980 The whole Act No. 31 of 1987 Restrictive Practices (Amendment) Act 1987 The whole Act No. 28 of 1996 National Standards Authority of Ireland Act 1996
\n
Section 19(3) and 21(7)
\n
SCHEDULE 3 References in Certain Acts and Instruments to Director or Office of Director
\n
Section 40
\n
.
\n
PART 1
\n
References in Certain Acts to Director of Consumer Affairs or Office of the Director of Consumer Affairs Short Title, Number and Year Provision affected Amendment
\n
(1)
\n
(2)
\n
(3)Ombudsman Act 1980 (No. 26 of 1980) First Schedule In Part II, delete “the Director of Consumer Affairs”.
\n
Second Schedule Insert “National Consumer Agency”.
\n
National Archives Act 1986 (No. 11 of 1986) Schedule Substitute “National Consumer Agency” for “Office of the Director of Consumer Affairs”.
\n
Prompt Payment of Accounts Act 1997 (No. 31 of 1997) Schedule Substitute “National Consumer Agency” for “the Office of the Director of Consumer Affairs”.
\n
Taxes Consolidation Act 1997 (No. 39 of 1997) Schedule 13 Substitute the following for paragraph 112 (inserted by section 14 of the Finance Act 2001 ): “112. National Consumer Agency.”.
\n
Electronic Commerce Act 2000 (No. 27 of 2000)
\n
Section 15
\n
Substitute “role of the National Consumer Agency” for “role of the Director of Consumer Affairs”.
\n
Competition Act 2002 (No. 14 of 2002) Schedule 1 (as amended by the Competition Act 2002 (Section 34(11)) (Director of Consumer Affairs) Order 2003 ( S.I. No. 130 of 2003 ) In column (1), substitute “National Consumer Agency” for “Director of Consumer Affairs”.
\n
Ombudsman for Children Act 2002 (No. 22 of 2002) Schedule 1 In Part 2, substitute “National Consumer Agency” for “Director of Consumer Affairs”.
\n
Personal Injuries Assessment Board Act 2003 (No. 46 of 2003)
\n
Section 56(6)
\n
Substitute “the chief executive of the National Consumer Agency” for “the Director of Consumer Affairs”.
\n
Official Languages Act 2003 (No. 32 of 2003) First Schedule (a) in paragraph 1 of the Irish text— (i) in subparagraph (1), delete “Oifig an Stiúrthóra Gnóthaí Tomhaltóirí”, and (ii) in subparagraph (2), insert “An Ghníomhaireacht Náisiúnta Tomhaltóirí”. (b) in paragraph 1 of the English text— (i) in subparagraph (1), delete “Office of the Director of Consumer Affairs”, and (ii) in subparagraph (2), insert “National Consumer Agency”.
\n
Veterinary Practice Act 2005 (No. 22 of 2005)
\n
Section 16(1)
\n
Substitute the following for paragraph (g): “(g) one person who is nominated for such appointment by the National Consumer Agency;”.
\n
PART 2
\n
References in Certain Instruments to Director of Consumer Affairs or Office of the Director of Consumer Affairs Citation, Number and Year Provision affected Amendment
\n
(1)
\n
(2)
\n
(3)Air Quality Standards Regulations 2002 ( S.I. No. 271 of 2002 ) Schedule 14 Substitute the following for paragraph (6): “(6) National Consumer Agency”.
\n
Genetically Modified Organisms (Deliberate Release) Regulations 2003 ( S.I. No. 500 of 2003 ) Regulation 62(1) (a) Substitute the following for paragraph (g): “(g) the National Consumer Agency,”. (b) In paragraph (j), substitute “the National Consumer Agency” for “the Office of the Director of Consumer Affairs”.
\n
Ozone in Ambient Air Regulations 2004 ( S.I. No. 53 of 2004 ) Schedule 10 Substitute the following for paragraph (6): “(6) National Consumer Agency”.
\n
Investor Compensation Act 1998 (Section 18(4)) (Prescription of Bodies and Individuals) Regulations 2004 ( S.I. No. 570 of 2004 ) Regulation 2 Substitute the following for paragraph (b): “(b) the National Consumer Agency;”.
\n
Finance Act 1993 (Section 60) Regulations 2005 ( S.I. No. 846 of 2005 ) Schedule Substitute “National Consumer Agency” for “Office of the Director of Consumer Affairs”.
\n
SCHEDULE 4 Enactments for the purpose of section 73 (Undertakings with the Agency)
\n
Section 73
\n
.
\n
Number and Year Short Title or Citation
\n
(1)
\n
(2)No. 16 of 1980 Sale of Goods and Supply of Services Act 1980 No. 17 of 1995 Package Holidays and Travel Trade Act 1995 S.I. No. 224 of 1989 European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations 1989 S.I. No. 27 of 1995 S.I. No. 307 of 2000 European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 S.I. No. 204 of 1997 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) Regulations 1997 S.I. No. 144 of 2000 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) (Amendment) Regulations 2000 S.I. No. 207 of 2001 European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001 S.I. No. 639 of 2002 European Communities (Requirements to Indicate Product Prices) Regulations 2002 S.I. No. 11 of 2003 European Communities (Sale of Consumer Goods and Associated Guarantees) Regulations 2003 S.I. No. 68 of 2003 European Communities (Directive 2000/31/EC) Regulations 2003 S.I. No. 490 of 2004 European Communities (Amendment of S.I. No. 68 of 2003 ) Regulations 2004 SCHEDULE 5 Enactments for the purpose of section 75 (Compliance notices)
\n
Section 75
\n
.
\n
Number and Year Short Title or Citation
\n
(1)
\n
(2)No. 16 of 1980 Sale of Goods and Supply of Services Act 1980 No. 17 of 1995 Package Holidays and Travel Trade Act 1995 S.I. No. 168 of 1984 Consumer Information (Advertisements) (Disclosure of Business Interest) Order 1984 S.I. No. 224 of 1989 European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations 1989 S.I. No. 103 of 1997 Consumer Information (Advertisements for Concert or Theatre Performances) Order 1997 S.I. No. 204 of 1997 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) Regulations 1997 S.I. No. 144 of 2000 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) (Amendment) Regulations 2000 S.I. No. 468 of 2000 Consumer Information (Advertisements for Airfares) Order 2000 S.I. No. 207 of 2001 European Communities (Protection of Consumers in Respect of Contracts made by Means of Distance Communication) Regulations 2001 S.I. No. 68 of 2003 European Communities (Directive 2000/31/EC) Regulations 2003 S.I. No. 490 of 2004 European Communities (Amendment of S.I. No. 68 of 2003 ) Regulations 2003 SCHEDULE 6 Redress for contravention of section 87
\n
Section 87
\n
.
\n
1.In this Schedule— “ Act of 1994 ” means the Terms of Employment (Information) Act 1994 ; “ employee ” and “ employer ” have the same meaning as they have in the Act of 1994.
\n
2.(1) An employee may present a complaint to a rights commissioner that the employer has contravened section 87
\n
(3)in relation to the employee and, if the employee does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.
\n
(2)A decision of a rights commissioner under subparagraph (1) shall do one or more of the following: (a) declare that the complaint was or, as the case may be, was not well founded; (b) require the employer to comply with section 87
\n
(3)and, for that purpose, require the employer to take specified steps; (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 104 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 ; and the references in the foregoing clauses to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
\n
3.For the purposes of this Schedule— (a) subsections (3) to (6) and subsection (7)(a) of section 7 of the Act of 1994 shall apply in relation to a complaint presented under this Schedule as they apply in relation to a complaint presented under subsection (1) of that section 7, with the following modifications, namely: (i) the deletion in that subsection (3) of all the words from “if it is presented” to the end of that subsection and the substitution of “unless it is presented to him within the period of 12 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period, not exceeding 6 months from the expiration of the said period of 12 months, as the rights commissioner considers reasonable”; (ii) the substitution in that subsection (6) of a reference to a decision for the reference to a recommendation; and any other necessary modifications, (b) sections 8 to 10 of the Act of 1994 shall apply as they apply for the purposes of that Act, with the following modifications, namely: (i) the substitution in those provisions of references to a decision for references to a recommendation; (ii) the addition to section 8 of the following subsection: “(7) Proceedings under this section before the Tribunal shall be heard otherwise than in public.”; (iii) the substitution in section 9 of— (I) references to the Circuit Court for references to the District Court, and (II) the following subsection for subsection (3): “(3) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade or business.”; and any other necessary modifications.
\n
4.(1) In proceedings under this Schedule before a rights commissioner or the Employment Appeals Tribunal in relation to a complaint that section 87
\n
(3)has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned.
\n
(2)If a penalisation of an employee, in contravention of section 87
\n
(3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to the employee in respect of that penalisation both under this Schedule and under those Acts.
\n
SCHEDULE 7 Statutory Instruments for the purposes of sections 101 and 102 (Directions respecting product safety and admissibility of laboratory tests)
\n
Section 101
\n
and 102 .
\n
Number and Year Citation S.I. No. 32 of 1990 European Communities (Safety of Toys) Regulations 1990 S.I. No. 101 of 1992 European Communities (Appliances Burning Gaseous Fuels) Regulations 1992 S.I. No. 482 of 1992 European Communities (Low Voltage Electrical Equipment) Regulations 1992 S.I. No. 272 of 1993 European Communities (Personal Protective Equipment) Regulations 1993 S.I. No. 199 of 2004 European Communities (General Product Safety) Regulations 2004 SCHEDULE 8 Directives for the purpose of section 102 (Admissibility of laboratory tests)
\n
Section 102
\n
.
\n
Council Directive 73/23/EEC of 19 February 1973 on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits Council Directive 88/378/EEC of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys Council Directive 89/686/EEC of 21 December 1989 on the approximation of the laws of the Member States relating to personal protective equipment Council Directive 90/396/EEC of 29 June 1990 on the approximation of the laws of the Member States relating to appliances burning gaseous fuels Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on the approximation of the laws of the Member States relating to general product safety.
\n
1O.J. No. L.149, 11/06/2005, p. 22.
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