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CONC 2.7 Distance marketing

Application

CONC 2.7.1 R
  1. (1)

    Subject to (2) and (3), this section applies to a firm that carries on any distance marketing activity from an establishment in the UK, with or for a consumer in the UK or another EEA State.

  2. (2)

    This section does not apply to an authorised professional firm with respect to its non-mainstream regulated activities.

  3. (3)

    This section does not apply to an activity in relation to a consumer hire agreement.

The distance marketing disclosure rules

CONC 2.7.2 R
  1. (1)

    Subject to (2), (3) and (4), a firm must provide a consumer with the distance marketing information (CONC 2 Annex 1R) in good time before the consumer is bound by a distance contract or offer.

    [Note: regulation 7(1) of SI 2004/2095]

[Note: articles 3(1) and 4(5) of the Distance Marketing Directive]

  1. (2)

    Where a distance contract is also a contract for payment services to which the Payment Services Regulations apply, a firm is required to provide to the consumer only the information specified in rows 7 to 12, 15, 16 and 20 of CONC 2 Annex 1R.

  2. (3)

    Paragraph (1) and the requirement to provide the abbreviated distance marketing information (CONC 2 Annex 2R) in CONC 2.7.11 R do not apply to a distance contract which is also a credit agreement (other than an authorised non-business overdraft agreement) in respect of which the firm has disclosed the pre-contract credit information required by regulations 3, 4 or 5, as the case may be, and 7, of the disclosure regulations (information to be disclosed to a debtor before a regulated consumer credit agreement is made) in accordance with the disclosure regulations.

    [Note: regulation 7(6) of SI 2004/2095]

  3. (4)

    Paragraph (1) and the requirement to provide the abbreviated distance marketing information (CONC 2 Annex 2) in CONC 2.7.11 R do not apply to a distance contract which is also an authorised non-business overdraft agreement in respect of which:

    1. (a)

      the firm has disclosed the information required by regulation 10(2) of the disclosure regulations (authorised non-business overdraft agreements) by means of the European Consumer Credit Information form in accordance with the disclosure regulations and, unless CONC 2.7.12 R would otherwise apply, a copy of the contractual terms and conditions;

    2. (b)

      in the case of a voice telephony communication, the firm has:

      1. (i)

        disclosed the information required by regulation 10(5) of the disclosure regulations in accordance with the disclosure regulations; and

      2. (ii)

        provided a copy of the written agreement in accordance with section 61B(2)(b) of the CCA; or

    3. (c)

      in the case of an agreement made using a means of distance communication, other than voice telephony communication, where a firm is unable to provide the information required by regulation 10(2) of the disclosure regulations, the firm has:

      1. (i)

        provided a copy of the written agreement in accordance with section 61B(2)(c) of the CCA, and

      2. (ii)

        unless CONC 2.7.12 R would otherwise apply, in relation to the prospective distance contract, provided information which accurately reflects the contractual obligations which would arise under the law presumed to be applicable to that contract.

        [Note: regulation 7(6) of SI 2004/2095]

CONC 2.7.3 R

A firm must ensure that the distance marketing information, the commercial purpose of which must be made clear, is provided in a clear and comprehensible manner in a way appropriate to the means of distance communication used with due regard, in particular, to the principles of good faith in commercial transactions and the legal principles governing the protection of those who are unable to give their consent.

[Note: regulation 7(2) and (3) of SI 2004/2095]

[Note: article 3(2) of the Distance Marketing Directive]

CONC 2.7.4 R

When a firm makes a voice telephony communication to a consumer, it must make its identity and the purposes of its call explicitly clear at the beginning of the conversation.

[Note: regulation 7(4) of SI 2004/2095]

[Note: article 3(3)(a) of the Distance Marketing Directive]

CONC 2.7.5 R

A firm must ensure that information on contractual obligations to be communicated to a consumer during the pre-contractual phase accurately reflects the contractual obligations which would result from the law presumed to be applicable to the distance contract if that contract is concluded.

[Note: regulation 7(5) of SI 2004/2095]

[Note: article 3(4) of the Distance Marketing Directive]

Terms and conditions, and form

CONC 2.7.6 R

A firm must communicate to the consumer all the contractual terms and conditions and the information referred to in the distance marketing disclosure rules (CONC 2.7.2 R to CONC 2.7.5 R) in a durable medium1. That information must be made available and accessible to the consumer in good time before the consumer is bound by any distance contract or offer.

1

[Note: regulation 8(1) of SI 2004/2095]

[Note: articles 4(5) and 5(1) of the Distance Marketing Directive]

CONC 2.7.7 G
  1. (1)

    Activities in relation to a consumer hire agreement are not financial services within the meaning of the Distance Marketing Directive and do not fall within CONC 2.7. Instead such agreements fall within the Consumer Protection (Distance Selling) Regulations 2000 (SI 2000/2334) if they were made before 13 June 2014, or the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) if they were made on or after that date2.

  2. (2)

    A firm will provide information, or communicate contractual terms and conditions, to a consumer if another person provides the information, or communicates the terms and conditions, to the consumer on its behalf.

Commencing performance of the distance contract

CONC 2.7.8 R

The performance of the distance contract may only begin after the consumer has given approval.

[Note: article 7(1) of the Distance Marketing Directive]

Exception: successive operations

CONC 2.7.9 R

In the case of a distance contract comprising an initial service agreement, followed by successive operations or a series of separate operations of the same nature performed over time, the rules in this chapter only apply to the initial agreement.

[Note: regulation 5(1) of SI 2004/2095]

[Note: article 1(2) of the Distance Marketing Directive]

CONC 2.7.10 R
  1. (1)

    If there is no initial service agreement but the successive or separate operations of the same nature performed over time are performed between the same contractual parties, the distance marketing disclosure rules (CONC 2.7.2 R to CONC 2.7.5 R) will only apply:

    1. (a)

      when the first operation is performed; and

    2. (b)

      if no operation of the same nature is performed for more than a year, when the next operation is performed (the next operation being deemed the first in a new series of operations).

      [Note: regulation 5(2) of SI 2004/2095]

    [Note: recital 16 and article 1(2) of the Distance Marketing Directive]

  2. (2)

    In this section:

    1. (a)

      "initial service agreement" includes the opening of a bank account or the making of a credit-token agreement;

    2. (b)

      "operations" includes the deposit or withdrawal of funds to or from a bank account and payments by a credit card or a store card; and

    3. (c)

      adding new elements to an initial service agreement, such as the ability to use an electronic payment instrument together with an existing retail banking service, does not constitute an "operation" but an additional contract to which the rules in this chapter apply.

      [Note: regulation 5 of SI 2004/2095]

    [Note: recital 17 of the Distance Marketing Directive]

Exception: voice telephony communications

CONC 2.7.11 R

In the case of voice telephony communication, and subject to the explicit consent of the consumer, only the abbreviated distance marketing information (CONC 2 Annex 2R) needs to be provided during that communication. However, unless another exception applies (such as the exemption for means of distance communication not enabling disclosure), a firm must still provide the distance marketing information (CONC 2 Annex 1R) in a durable medium that is available and accessible to the consumer in good time before the consumer is bound by any distance contract or offer.

[Note: regulation 7(4)(b) of SI 2004/2095]

[Note: articles 3(3)(b) and 5(1) of the Distance Marketing Directive]

Exception: means of distance communication not enabling disclosure

CONC 2.7.12 R

A firm may provide the distance marketing information (CONC 2 Annex 1R) and the contractual terms and conditions in a durable medium immediately after the conclusion of a distance contract, if the contract has been concluded at a consumer's request using a means of distance communication that does not enable the provision of that information in that form in good time before the consumer is bound by any distance contract or offer.

[Note: article 5(2) of the Distance Marketing Directive]

Exception: contracts for payment services

CONC 2.7.13 G

Where a distance contract covers both payment services and non-payment services, the exception in CONC 2.7.2R (2) applies only to the payment services aspects of the contract. A firm taking advantage of this exception will need to comply with the information requirements in Part 5 of the Payment Services Regulations.

Consumer’s right to request paper copies and change the means of communication

CONC 2.7.14 R

At any time during the contractual relationship, the consumer is entitled, at request, to receive the contractual terms and conditions on paper. The consumer is also entitled to change the means of distance communication used unless this is incompatible with the contract concluded or the nature of the service provided.

[Note: regulation 8(2) and (4) of SI 2004/2095]

[Note: article 5(3) of the Distance Marketing Directive]

Unsolicited services

CONC 2.7.15 R
  1. (1)

    A firm must not enforce, or seek to enforce, any obligations under a distance contract against a consumer in the event of an unsolicited supply of services. The absence of a reply does not constitute consent.

  2. (2)

    This rule does not apply to the tacit renewal of a distance contract.

    [Note: regulation 15 of SI 2004/2095]

[Note: article 9 of the Distance Marketing Directive]

Mandatory nature of consumer’s right

CONC 2.7.16 R

If a consumer purports to waive any of the consumer's rights created or implied by the rules in this section, a firm must not accept that waiver, nor seek to rely on or enforce it against the consumer.

[Note: article 12 of the Distance Marketing Directive]

Contracts governed by law of a third party state

CONC 2.7.17 R

If a firm proposes to enter into a distance contract with a consumer that will be governed by the law of a country outside the EEA, the firm must ensure that the consumer will not lose the protection created by the rules in this section if the distance contract has a close link with the territory of one or more EEA States.

[Note: regulation 16(3) of SI 2004/2095]

[Note: articles 12 and 16 of the Distance Marketing Directive]