Who will protect the consumer after Brexit?

John Hearne offers insights on the post-Brexit landscape for consumers by looking at current protections for purchases made outside the EU

As uncertainty over Brexit continues, it’s impossible to be definitive about the level of protection that will apply when Irish consumers buy from UK traders after the UK leaves the EU.

As it stands, when consumers buy something online from a trader based within the EU, they enjoy a host of strong protections.

Your online shopping includes the right of withdrawal for most purchases, the right to redress in case of faulty goods, and the right to a refund for delay or non-delivery.

The European Consumer Centre (ECC Ireland) says that if you purchase an item before Brexit, you should, in principle, be covered by the same rights enshrined in EU consumer-protection law.

These have been written into domestic legislation by all the EU member states, including the UK, and can be relied upon even if those rights are exercised after Brexit.

So, you should be okay if you buy a product before a crash-out, only to discover, afterwards, that it already had a defect when you bought it.

Changes to your rights

If the UK leaves the EU, you will no longer automatically enjoy the same rights that you have under EU law. While UK domestic legislation is currently aligned with EU consumer-protection law, this could change. So, if you purchase a product online from a UK trader after Brexit, pay special attention to the terms and conditions. For added protection, pay using a credit or debit card to avail of charge-back (a procedure by which a card-issuer can reclaim your cash in the event of a disputed transaction).

EU consumers who have a dispute with a trader based in another EU member state can get advice from the European Consumer Centres Network (ECC-Net).

In addition, consumers can also avail of the European Small Claims Procedure and the Online Dispute Resolution (ODR). These procedures are available only where a consumer and a trader are both based in an EU member state.

After Brexit, consumers who have a dispute with a trader based in the UK will no longer be able to seek redress through the ODR platform. In the event of a hard Brexit, the UK ECC will cease to be a member of the ECC-Net, which means they won’t be able to assist with complaints involving consumers or traders from the UK.

Also, the European Small Claims Procedure will cease to operate in the UK in such a case.

One of ECC Ireland’s big concerns around a no-deal Brexit is the loss of reciprocity in judicial cooperation in respect of jurisdiction, recognition, and enforcement of judgments in civil and commercial matters.

Legal protections remain

The UK government has said that judgements given in an EU member state will continue to be enforceable in the UK if legal proceedings began before the withdrawal date, but it’s not clear what the arrangements will be afterwards, or that there will be reciprocity.

Currently, when you buy from a trader based outside the EU, extra charges may apply and your purchase may cost more than you thought.

According to Revenue, if your goods have a customs value (including cost, transport, insurance, and handling charges) of €22 or less, you don’t have to pay customs duty or VAT.

If the intrinsic value (the value of the goods alone, excluding transport, insurance, and handling charges) is more than €150, then you will have to pay customs duty. So, before ordering from a UK trader or any other trader based outside the EU, check what VAT or import charges you may have to pay on top of the original cost of the goods.

If you buy a product from a physical store in Ireland, your contract is with that seller and, therefore, any request for redress (repair, replacement, or refund) should be made directly to that seller. In such cases, your consumer rights will not change because of Brexit, even if the owner of the chain or brand is based in the UK.

Air travel protections

Then, there’s air travel. The EU grants protection to air passengers in the case of flight cancellation, delayed flights, and/or denied boarding. Know as Regulation (EC) 261/2004, this protection applies to all passengers travelling on flights leaving the EU, Iceland, Norway or Switzerland, regardless of where the carrier is based or where the destination airport.

It also applies on flights arriving into the EU, Iceland, Norway, or Switzerland — regardless of the departure airport, but only if the carrier is based within the EU.

So, if you’re travelling with an EU-based airline, you’ll continue to enjoy your EU air passenger rights, regardless of whether you are travelling to or from the UK.

On the other hand, if there’s a hard Brexit, EU passenger rights won’t automatically apply to passengers departing from a UK airport to an airport situated in the EU/EEA, unless the operating air carrier is a community carrier.

Unfortunately, it is still unclear if the UK will continue to apply Regulation 261/2004, if it becomes a third country in the event of Brexit and, if so, in which terms. Switzerland chose to ratify this legislation, even though it is not a member of the EU/EEA.

ECC Ireland says that, last February, the presidency of the EU Council reached a provisional agreement with the European Parliament to alleviate severe disruption to air connectivity for passengers between the EU and the UK, in the event of the UK leaving the EU without a deal.

The proposed regulation would enable UK-licensed carriers to provide air-transport services between the UK and the remaining 27 member states, subject to a number of conditions. Negotiations are ongoing and the proposed regulation still needs to be formally adopted by both the UK parliament and the European Council. It’s hoped that this process will terminate soon and, at least, prevent the threat of flight chaos in the event of a no-deal Brexit.

The situation is similar with travel by sea. After Brexit, EU citizens will still be covered by European passenger rights at sea, if you travel with a company that is based within the EU. This applies regardless of whether you are travelling to the UK from an EU country, or vice versa.

You will not, however, be covered if you are travelling from the UK to an EU country with a company that is not based within the EU. And EU rules do not apply to travel by boat from the UK to countries outside the EU.

Since the 1970s, the EU has adopted over a hundred directives and regulations with a consumer-protection angle. Proof, if it were needed, that the potential consequences of Brexit for consumers are far-reaching.

When it comes to things like roaming, geo-blocking, online content portability, data protection, product safety, and enforcement cooperation, we still don’t know what will happen.

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