Seymour Crawford (Cavan-Monaghan, Fine Gael)
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Question 11: To ask the Tánaiste and Minister for Enterprise, Trade and Employment if she has received or sought legal advice with regard to compatibility of sections 48 and 49 of the Consumer Protection Act 2007 with the payments service directive; and if she will make a statement on the matter. [24016/08]

Mary Coughlan (Donegal South West, Fianna Fail)
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Sections 48 and 49 of the Consumer Protection Act 2007 sought to restrict the manner in which some traders impose additional charges on consumers solely by reason of the method of payment chosen by the consumer when paying for goods and services.

In the course of public consultation carried out by my predecessor as Minister for Enterprise, Trade and Employment, Deputy Micheál Martin, on the possible impact of these provisions, a number of issues requiring legal advice were raised. These issues related in the main to the compatibility of sections 48 and 49 with the provisions of EU law and in particular with the provisions of the European directive on unfair commercial practices. The Attorney General's strong advice was that sections 48 and 49 were not compatible with the directive, particularly with the maximum harmonisation nature of that directive. Accordingly, my colleague decided not to introduce the said provisions.

The payment services directive, which is due to be transposed into Irish law by 1 November 2009, is essentially the responsibility of my colleague, the Minister for Finance. The Attorney General has advised, however, that sections 48 and 49, as currently drafted, may not be compatible with the provisions of the directive and that any legislation that would seek to restrict payment method charges would have to be considered in the context of the specific discretions given to member states in the directive to introduce laws in this area. In this regard, I understand that the Department of Finance held public consultation on the domestic transposition of the directive, which concluded on 16 May 2008. The results of that consultation are currently being studied with a view to preparing a draft legal text. I am advised by the Department of Finance that no final decisions have yet been taken with regard to any of the national discretions permitted by the directive.

Notwithstanding the legal advice in relation to sections 48 and 49, I remain concerned about the manner in which some traders impose payment method surcharges upon customers, particularly vulnerable customers. In this regard, my Department is currently examining the possibility of making regulations under the Consumer Protection Act 2007 with a view to obliging those traders who do impose payment method charges to include information on those charges in any advertisements for their goods and services. I hope, therefore, it will be possible to introduce regulations in this area to ensure that where payment method charges are imposed, consumers are fully aware of them before making a transactional decision to purchase goods or services.

Leo Varadkar (Dublin West, Fine Gael)
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It is clear from the answer I received from the Minister for Finance that the payment services directive will allow member states to ban surcharges provided doing so does not distort competition — it would not — or benefit inefficient means of payment, such as cash payment. It is clear the directive will empower the Government to ban credit and debit card surcharges. Will the Minister for Enterprise, Trade and Employment confirm this with the Minister for Finance? Will she make a commitment to introducing the necessary legislation to amend the Consumer Protection Act to allow the ban to be introduced once the directive comes into force in November 2009?

Mary Coughlan (Donegal South West, Fianna Fail)
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The position is that no final decision has been made by my colleague on any national discretions permitted under the payment services directive. I will be having discussions with him on the basis of the legal advice of the Attorney General.