Analysis: buying online from our nearest neighbour now comes with extra risks for consumers trying to enforce their legal rights

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Irish consumers are already feeling the effects of Brexit. There have been reports of delays in delivery from UK retailers due to additional border checks and protocols, and many consumers have already experienced the unwelcome surprise of VAT and customs duties being payable on delivery of their parcels.

However, these are not the only Brexit-related issues that consumers need to be aware of.  A further area of concern is the impact that Brexit will have on consumer rights when buying from UK-based retailers.

As Irish consumers, we have become used to having a strong set of consumer rights and remedies to protect our transactions. These rights are largely derived from EU law which establishes a minimum standard of consumer protection that all EU countries must meet. Because of this harmonisation among member states, Irish consumers can be assured that whether they are buying from an Irish retailer or from a retailer in any other EU country, they can rely on consumer law that is based on the EU's minimum standard, and so they can have a degree of confidence that they will be protected if anything goes wrong.

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From RTÉ Radio 1's Morning Ireland, RTÉ Consumer Affairs Correspondent Fran McNulty on a campaign to make consumers aware of how Brexit impacts their rights if shopping online.

Most consumers are by now familiar with many of these rights. When buying online, consumers have the right to a cancellation period of 14 days within which they can withdraw from the contract without giving any reason and without penalty (but they may still have to pay for the cost of returning the goods). 

Online consumers also have the right to get clear information about the seller and the product before the contract is concluded, including for example, information about the existence of the right to cancel, and the total price of the goods including any delivery charges.

There are also clear rules surrounding delayed or non-delivery.  For example, the goods should be delivered within 30 days unless a different time frame has been agreed. If they are not delivered within this time, the consumer is entitled to ask the seller to deliver again by an agreed date, and failing that the consumer can cancel the contract and get a refund of all costs without delay.

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From RTÉ 2fm's Dave Fanning Show with Cormac Battle, Conor Pope from The Irish Times on what we need to be aware of when shopping online in a post-Brexit world

As far as faulty goods are concerned, under the relevant EU law, any faults that appear within 6 months of delivery are presumed to have existed at the time of delivery. The trader is first obliged to offer consumers a repair or replacement, but if this is not possible, or if it fails to correct the problem, the consumer is entitled to seek a refund. The consumer should not incur any costs in relation to these remedies.

But can Irish consumers who wish to continue ordering goods from their favourite UK retailers expect these same legal protections to apply to their post-Brexit purchases?

The good news: regardless of whether Irish or UK law applies to the contract (this may depend on whether the UK retailer is 'directing its activities’ to Irish consumers via its website), the substance of the consumer’s legal rights will be the same or at least largely similar as those that apply under the EU minimum standard. This is because the UK, having until recently been part of the EU, has a set of consumer laws that are still aligned with EU rules. 

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From RTÉ Radio 1's Brendan O'Connor Show, consumer journalist Siobhan Maguire on how Brexit is affecting Irish consumers online

However, this alignment is not likely to last into the future. In years to come, it is likely that UK consumer law will begin to diverge from EU law. This is particularly so because the UK will no longer be bound to comply with rulings of the European courts on matters of consumer law, and will not have to implement future EU directives. For now, though, as far as consumer contract rights are concerned, there is little significant difference between UK and EU rules.

But the real difficulty for Irish consumers post-Brexit will be enforcing those rights. Within the EU, enforcement of consumer rights is supported by a cooperative cross-border framework. The EU allows consumers to access redress in the courts of their home country when their rights have been breached. It also has rules to allow consumers to enforce court judgments in other Member States.

In the case of contracts between EU consumers and UK businesses, application of these rules is more complex and less certain after Brexit as the UK-EU Trade Deal contains no clarification on the issue of civil judicial cooperation. This means that, even if an Irish consumer obtains a judgment against a UK retailer in the Irish courts, having that judgment enforced against the retailer may become far more difficult.

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Regardless of these post-Brexit enforcement issues, court action is often not the best way to resolve consumer disputes. In many cases, it is just too complex and too costly for consumers to go to court. Instead, less formal methods of dispute resolution can be a much more effective means for consumers to get redress.  The EU Commission has a number of initiatives to help consumers. ECC-Net is a network of independently managed consumer advice agencies to help consumers with dispute resolution, while the ODR Platform helps consumers and traders resolve disputes over cross-border online purchases. There is also a European Small Claims Procedure that allows consumers to pursue cross-border claims within the EU without having to have legal advice. 

In the post-Brexit world, the UK will no longer be part of the ODR Platform or the European Small Claims Procedure so Irish consumers will unfortunately not be able to access these useful tools to help resolve disputes with UK retailers. The ECC in Ireland will continue for now to assist Irish consumers with disputes with UK traders, but the continued participation of the UK in ECC-Net is uncertain.

With all this in mind, it is even more important for Irish consumers buying from the UK to make sure that they are buying from a reputable retailer. They should carefully read the website’s terms and conditions to ensure that they are happy with the retailer’s policies. When doing business with UK retailers, the old adage of caveat emptor applies once more.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ