The Provision of Services Regulations 2009 (the “Regulations”) came into force on 28 December 2009. They implement the EU Services Directive and affect all businesses (including individuals) that offer or provide services in the United Kingdom. The bulk of the Regulations is aimed at making it easier for service providers to offer their services in other states of the EU as it is felt that the internal market in this area is not functioning as efficiently and effectively as hoped. Consequently, the majority of the Regulations impose obligations on member states and “competent authorities”, but there are a few provisions which impose obligations on service providers. These obligations on service providers are mainly confined to information giving, and are unlikely to impose any significant additional burden on service providers. This alert focuses on these obligations.
Who will be affected?
The Regulations apply to “service providers”. A service is defined as “any self-employed economic activity normally provided for remuneration”. The reference to “self-employed” simply removes employment contracts from the scope of the Regulations. As a general rule, the Regulations apply to all services that have not been explicitly excluded from it.
Certain types of service are excluded from the scope of Regulations including financial services (e.g. banking, insurance, investment advice), electronic communications services (e.g. email, voicemail services), certain types of transport services, healthcare services, audiovisual services and certain types of gambling activities.
The manufacture and sale of goods would not be included, although ancillary services relating to goods would be. Guidance issued by the Department for Business, Innovation and Skills (“BIS”) states its view that retailers that provide after-sales service or customer advice will be included. The guidance states that “distributive trades” are included within the scope of the Regulations.
The Regulations apply to any service provider operating in the United Kingdom, wherever they are based.
What information must a service provider always make available?
The main obligation on service providers who are within the scope of the Regulations relates to the giving of information. They will already be making available much of the information that the Regulations require them to give, as most of it is required by other pieces of legislation. The Regulations prescribe three sets of information that a service provider must make available. First, a service provider must make the following information available to a recipient of the service:
- the service provider’s name;
- the service provider’s legal status and form (e.g. a company limited by shares);
- the geographic address at which the provider is established and details by which the provider can be “contacted rapidly and communicated with directly” (including, if the provider can be contacted and communicated with by electronic means, the relevant details e.g. an email address or number for text messages);
- the name of any trade or similar public register in which the service provider is registered, plus the registration number or other means of identification in that register;
- if the service provider is subject to an authorisation scheme in the United Kingdom, the details of the relevant supervising authority or the Business Link website address (www.businesslink.gov.uk), where details of the relevant authority can be found. Similarly, if the service provider is subject to an authorisation scheme in another EEA state, the details of the relevant authority, or the single point of contact (i.e. the equivalent of the Business Link website address) in that state;
- the service provider’s VAT number (if any);
- if the service provider is carrying on a regulated profession, any professional body or similar institution with which the service provider is registered, the professional title and the EEA state in which that title has been granted;
- the service provider’s general terms and conditions, if any;
- the existence of contractual terms, if any, that the service provider uses concerning the competent courts (e.g. that the English courts have jurisdiction) or the law applicable to the contract (e.g. that it is governed by English law);
- the existence of any after-sales guarantee not imposed by law;
- the price of the service, where it is pre-determined by the service provider;
- the main features of the service, if not already apparent from the context; and
- information about any professional liability insurance or guarantee that the service provider is required to hold, including the insurer’s or guarantor’s contact details and the territorial coverage of the insurance or guarantee. A service provider can make this information available by:
- supplying it to the recipient on the provider’s own initiative;
- making it easily accessible to the recipient at the place where the service is provided or the contract for the service is concluded (e.g. at the service provider’s premises);
- making it easily accessible to the recipient electronically by means of an address supplied by the service provider (e.g. by providing a website address where the information can be found); or
- including it in any information document supplied to the recipient by the service provider in which the provider gives a detailed description of the service. There is no requirement that every piece of information must be supplied by the same method. Secondly, a service provider must make available contact details to which recipients of the service can send a complaint or a request for information, including:
- a postal address, fax number or email address;
- a telephone number; and
- any “official address” the provider is required by law to register, notify or maintain for the purpose of receiving notices or other communications. This would include the registered office address of a company registered in the United Kingdom. If the official address is the same as the postal address it need not be given twice.
The Regulations do not specify how service providers should make this information available, but BIS recommends that they use one of the four methods already outlined.
Thirdly, if the service provider is subject to a code of conduct or is a member of a trade association or professional body that provides for a non-judicial dispute resolution procedure, the provider must tell the recipient of that fact and how to get detailed information about the procedure, and must put the same information in any information document in which the service provider gives a detailed description of the service.
What information must be made available on request?
The information listed in the previous section must be made available or supplied to a recipient of the service. The following information must also be given to a recipient if the recipient asks for it:
- if the price is not pre-determined by the service provider for a given type of service: (a) the price of the service; or (b) if an exact price cannot be given, the method for calculating the price so that it can be checked by the recipient, or a sufficiently detailed estimate;
- for regulated professions, a reference to the professional rules applicable to the service provider in the EEA state where they are established and how to access those rules;
- information on other activities carried on by the provider that are directly linked to the service in question and on the measures taken to avoid conflicts of interest. This information must be included in any information document in which the provider gives a detailed description of the service; and
- any codes of conduct to which the provider is subject and the address at which they may be consulted by electronic means and the language in which they are available.
Service providers may choose to make this information available whether or not it is requested.
How and when must the information be given?
In addition to listing four methods of making information available (summarised in this alert in the section headed “What information must a service provider always make available?”), the Regulations also require that a service provider must make the information prescribed by the Regulations available clearly and unambiguously. It must generally be made available in good time before the contract is concluded or, if there is no written contract, before the service is provided.
What must a service provider do on receiving complaints?
The Regulations also impose requirements on service providers regarding complaints. A service provider must respond to complaints from recipients as quickly as possible and must make best efforts to find a satisfactory solution to them. Service providers are not required to try to find a satisfactory solution to complaints that are vexatious. The BIS guidance states that complaints which are merely annoying or inconvenient will not be vexatious, but a complaint which is clearly unsubstantiated or malicious may be.
Service providers may not include in the conditions of access to their service provisions which discriminate against recipients who are individuals on the grounds of their place of residence. Different conditions are allowed if they are justified by objective criteria. It may be acceptable, for example, to impose different prices on individuals with different places of residence if the difference gives rise to differing costs for the service provider.
As already mentioned, much of the information that the Regulations require service providers to make available is already required to be made available by other legislation, including the Companies (Trading Disclosures) Regulations 2008, the Consumer Protection from Unfair Trading Regulations 2008, the Consumer Protection (Distance Selling) Regulations 2000 and the Electronic Commerce (EC Directive) Regulations 2002. The Regulations are subordinate to other legislation, so to the extent that it is impossible to comply with two overlapping requirements, service providers should comply with the requirement in the other legislation.