Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

I move amendment No. 108:

In page 109, to delete lines 13 to 19 and substitute the following: “140.(1) This section applies where an authorised body—

(a) publishes under section 139(1)a copy of an order under section 137(1)declaring that the term of a consumer contract to which the order relates is unfair, or

(b) publishes a notice under section 139(3)setting out that term.

(2) Where, after the date on which the authorised body publishes an order or notice in respect of which this section applies, a trader—

(a) enters into a consumer contract containing the term to which the order or notice, as the case may be, relates, or

(b) seeks to rely on that term in a consumer contract (whenever concluded), the trader commits an offence.”.

This is a technical amendment to clarify the impact of a declaration of a term being unfair and sets out the obligations of traders in those circumstances. Because paragraph (b) gives rise to criminal sanction, it is preferable to clarify what is meant by the word "use". Under the current formulation, criminal liability could potentially attach to traders who have issued contracts that simply contain a term that is subsequently deemed to be unfair, even though they may have no intention of relying on that term following determination of its unfairness. The new formulation provides that a trader should not enter into a new customer contract subsequent to the declaration which contains an unfair term or, in the case of an existing contract, attempt to rely on a term which is already contained in consumer contracts concluded prior to the declaration and which has subsequently been the subject of a declaration.