Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Question 492: To ask the Minister for Enterprise, Trade and Employment further to Parliamentary Question No. 259 of 22 March 2005, the basis on which the protection afforded under the Sale of Goods and Supply of Services Act 1980 in respect of unsolicited goods is not applicable to business to business transactions; if this is due to a statutory or policy decision by the Office of the Director of Consumer Affairs not to undertake investigations or handle complaints in relation to matters raised by businesses, as consumers of goods or services; and if he will make a statement on the matter. [10487/05]

Micheál Martin (Cork South Central, Fianna Fail)
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My reply to the Deputy's earlier question was based on the understanding that the practice complained of was one that was set down in the terms and conditions of supply specified by the distribution companies involved. Such terms and conditions are not uniform but they would, typically, give the supplier the right to specify a minimum order number. That being so, I took the view that this is a contractual matter for the parties concerned. However, before replying, I did consider the possible impact of regulations in force regarding unfair contract terms.

It is the case that contracts involving business to consumer transactions are subject to the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I No. 27/1995) which empowers the Director of Consumer Affairs to seek an order from the High Court prohibiting the continued use of any term in a contract concluded with a consumer by a supplier which is adjudged by the court to be unfair. I am advised, however, that the provisions of the 1995 regulations do not extend to business to business transactions. Consequently, I stated in my earlier reply that the Director of Consumer Affairs would have no role in the matter. This remains the case, at least in so far as the enforcement of that particular regulation is concerned.

In his latest question, the Deputy makes reference to the Sale of Goods and Supply of Services Act 1980. Section 7 of that Act confers a role on both me, as Minister, and on the Director of Consumer Affairs, in regard to prosecuting offences under that Act. I would have to point out, however, out that the supply of unsolicited goods is not, of itself, an offence under the Act. An offence may arise in circumstances where payment is sought in respect of unsolicited goods.

Even so, it is not at all clear to me at this point, that the practice referred to by the Deputy involves the supply of unsolicited goods within the meaning of section 47 of the 1980 Act. Given the existence of the terms and conditions of supply that I have referred to, the provisions of any contract existing between the parties concerned and of any agreement governing the sale or return of the goods, as well as the payment terms involved, would all have to be considered. It may be that section 30 of the Sale of Goods Act 1893 which concerns delivery of the wrong quantity of goods may also be relevant.

In those circumstances, it is only prudent to repeat my advice that the practices referred to in the Deputy's question may impinge upon contractual law and retailers may wish to consult their legal representatives on how best to proceed in addressing such concerns. I have attempted to reply to the Deputy's question in a comprehensive manner but I stress that I do not have full details of the case the Deputy had in mind when he framed the question. Nor, at this point, have I the benefit of legal opinion in the matter. I will undertake to have my Department re-examine this matter and, if necessary, seek legal advice as to the applicability of relevant consumer law. In that regard, it would be helpful if the Deputy could supply me with any information at his disposal that might assist that process.

The Deputy's question raises an issue in regard to the role of the Director of Consumer Affairs in business to business transactions. Most modern law does make it clear that the protection afforded is in respect of consumer transactions only and "consumer" is most often defined as a person "acting for purposes which are outside that person's trade, business or profession". Older consumer law does not always make that distinction and, of course, the Director of Consumer Affairs does, and will continue to, exercise a role in regard to business to business transactions where the law so requires.

Notwithstanding the foregoing, I would see the director's primary role as being to uphold and enforce the rights of ordinary consumers under the statutes within her remit and, as a matter of policy, I would not like to see her becoming involved on a routine basis in contractual disputes involving business to business transactions. Any argument that might be made for the director's involvement in such cases would have to be considered in terms of the relevant statutory provisions, the additional burdens such involvement would place on the resources available to the Director and the implications of such involvement in terms of her primary role.