Over the last decade, a distinct body of law has arisen that regulates the contractual relationships formed between businesses and consumers, often known as consumer protection law. The development of this area of law has been principally driven by the EU through a series of directives and regulations. This article explores how consumer protection law in the UK has been affected by the UK’s withdrawal from the EU and the divergence that may follow in the coming years.
Consumer protection law aims to level the playing field between businesses and consumers when they contract with each other, and includes key provisions applicable to most B2C contracts, such as:
- the fairness test i.e. contractual terms and notices must not create an unfair imbalance in favour of businesses;
- the transparency test i.e. contractual terms and notices must be in plain and intelligible language;
- the right of withdrawal i.e. the right of a consumer to cancel a contract formed via distance communications (or off-premises) within 14 days; and
- implied contractual warranties and remedies e.g. goods being of satisfactory quality.
Consumer protection law is formed from many different legislative sources, with most deriving from EU regulations and directives. For example, two of the most significant pieces of UK consumer protection legislation, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and the Consumer Rights Act 2015, implement most of the provisions of the Consumer Rights Directive (2011/83/EU).
Effect of Brexit: 1 January 2021
Whilst EU based law remained largely in force and applicable during the transition period in 2020 (albeit with a different legal basis for such application), the transition period has now expired. In the short-term, however, UK consumer protection law has not significantly changed.
The table at the end of this article sets out how the UK formally leaving the EU has affected the most significant consumer protection legislation but, in summary, the key changes are as follows.
1. Online dispute resolution – the European Commission operates a dispute resolution platform known as the ODR platform to resolve disputes arising from cross-border B2C transactions with the help of an approved dispute resolution body. From 1 January 2021, UK consumers will no longer be able to submit a new complaint on the ODR platform and will also not be able to act on any ongoing cases in the platform, whether to send it to a dispute resolution body, contact a UK ODR advisor or receive an outcome. UK businesses will not be able to access the ODR dashboard.
2. Co-operation between national enforcement authorities – the Consumer Protection Cooperation Regulation (2017/2394) has been revoked. The Regulation sought to facilitate cooperation between EU enforcement authorities in relation to consumer protection and enable the European Commission to co-ordinate common actions between national enforcement authorities.
3. P2B Regulation – the P2B Regulation imposes obligations on platform/search engine operators where those platforms or search engines allow businesses to reach consumers in the EU. The territorial test for the application of the P2B Regulation is that the platform/search engine is aimed at consumers in the EU and at least some of the businesses using the platform/search engine are based in the EU. The P2B Regulation will continue to apply to platform/search engine operators based in the UK where that platform/search engine is used by EU-based businesses and reaches EU consumers. In addition, the UK has implemented additional legislation to create a dual regime that reflects the P2B Regulation but is restricted to the UK only i.e. the scope applies to UK-based businesses selling to UK-based consumers using the platform/search engine.