Service Providers to Furnish Information
There is a number of provisions designed to encourage a high quality of services and to provide information and transparency in relation to service providers and services. They provide for binding obligations for service providers and encourage voluntary measures.
The Services Directive requires EU Member States to ensure that service providers make certain information available to recipients without being asked for including: –
- name, address, legal status and contact details of the provider;
- whether it is registered in a trade or another register;
- whether it is registered under an authorisation scheme,
- details of the relevant authority and point of single contact; and
- VAT number
In case of regulated professionals, the professional body’s terms and conditions applicable to the provision of services must be provided including those related to jurisdiction, after-sales guarantee, prices pre-determined, the main features of the services and professional guarantee. The information must be reasonably accessible where the service is provided. It must be available electronically and must appear on any information documents that the provider uses to describe the services.
Information Available on Request
Under the Services Directive, EU Member States must ensure that service providers make certain information available to recipients on request. This includes:
- prices or the method of determining price;
- any applicable professional rules and where access can be obtained;
- information on service providers, disciplinary activities and measures taken to avoid conflicts;
- details of any code of conduct to which a provider is subject;
- any information as to non-judicial means of dispute settlement to which the provider is subject as a member of a trade or professional association.
This information must be communicated in a clear and unambiguous manner in good time before the conclusion of the contract of services.
Service Provider Obligations
Member States must ensure that where the service providers pose a risk to the health and safety of third parties or to the financial security of the recipient, that they must take out professional liability insurance or provide a comparable guarantee. This cannot, however, be required where the provider is already covered by equivalent insurance or guarantee in the Member State in which they are established.
Member States must remove total prohibitions on commercial communications (e.g. promotional advertising) by regulated professionals. They may, however, ensure that commercial communications comply with relevant professional rules.
Member States must ensure the providers are not restricted from exercising different activities. Regulated professions which provide a certification, accreditation, monitoring or testing services, may be subject to such requirements.
Member States are required to encourage providers to take action to ensure the quality of services by way of certification, or assessment by independent bodies or drawing up quality charters or tables. Member States must also take measures to encourage professional bodies to co-operate to promote quality of service, encourage the development of independent assessments and the development of European standards with the aim of facilitating compatibility between different Member States.
Member States must ensure: –
- contact details are supplied to which a recipient in any state can send a complaint or request for information;
- that the service provider responds to complaints in the shortest possible time;
- that the service provider demonstrates compliance with obligations in the directive; and
- that the service provider informs recipients of any code of conduct or membership of a trade association or professional body that provides a recourse of non-judicial means of dispute.
The provision also requires that where judicial decision requires lodging a financial guarantee Member States must recognise financial guarantees lodged with an institution established in other states.
Obligation of Service Providers
Every provider of a service shall make available the following information to a recipient of the service:
- the name of the provider, the provider’s legal status, the address at which the provider is established and details enabling the provider to be contacted directly and without delay, and if feasible, by electronic means;
- if the provider is registered in a trade or other similar public register the name of the register, the provider’s registration number (if any) or equivalent means of identification in that register, and details of where the register is kept;
- if the activity undertaken by the provider is subject to an authorisation scheme, details of the competent authority in the State that administers the scheme or the point of single contact;
- where the provider exercises an activity, which is subject to value-added tax, the identification number referred to in the Value-Added Tax Act;
- if the provider is a member of or registered with, a regulated profession, professional body or similar institution, the professional title (if any) and the Member State where that title was granted;
- the general terms and conditions (if any) used by the provider;
- if the provider includes in a contract for the provision of services contractual clauses concerning the law applicable to the contract, details of the clauses and of the courts (if any) competent to resolve disputes arising under the contract;
- if the provider gives an after-sales guarantee not imposed by law, details of the guarantee;
- if the service provided by the provider is one for which the provider has pre-determined the price, the price to be paid for the service;
- the main features of the service, if not already apparent from the context;
- if the provider is required to hold professional liability insurance or a guarantee, information about the insurance or guarantee, in particular, the contact details of the insurer or guarantor, and the territorial coverage of the insurance or guarantee.
Manner of Provision of Information
A provider may make the required information available to a recipient,
- if the information is easily accessible to the recipient, at the place where the service is provided or the contract for the provision of the service is entered into,
- if the information can be easily accessed by the recipient, electronically through an address supplied by the provider, or
- where the information is contained in an information document that the provider supplies to the recipient, and the document gives a detailed description of the service that the provider provides.
Additional Information to be given on Request
At the request of a recipient, a provider shall also give the following information in respect of a service to be provided by the provider:
- if the provider has not pre-determined the price of the service the price of the service, or if an exact price cannot be given, either the method by which the price can be calculated so that it can be checked by the recipient or a sufficiently detailed estimate of the price to be paid for the service;
- if the provider is a member of, or registered with, a regulated profession a reference to the professional rules (if any) that are applicable to the provider in the Member State of establishment, and details of how to access those rules;
- information on the multidisciplinary activities and partnerships which are directly linked to the service in question and on the measures taken to avoid conflicts of interest;
- if the provider is subject to a code of conduct, the electronic address at which the code can be located and what language versions of the code are available;
- if the provider is subject to a code of conduct, or is a member of a trade association or professional body that provides for disputes to be resolved by non-judicial means, details of the dispute resolution process, including how the recipient can obtain details about the characteristics of, and conditions for, the use of those means.
Manner of Communication of Information
In giving a description of a service by means of an information document, the provider shall ensure that the information referred to above is also included in that information document.
A provider shall ensure that the information required to be given is made available or communicated in a clear and unambiguous manner, and before the terms of the relevant contract for the provision of the relevant service are settled or, if there is no written contract, before the service is provided.
Complaints and Disputes
Every provider shall make available to a recipient, including a recipient resident in another Member State—
- details of where a complaint or a request for information, about the services of the provider can be sent, and
- the address of the provider’s usual place of business if it is not the provider’s usual address for correspondence.
The details shall include a postal address, a fax number or an electronic mailing address, together with a telephone number.
A provider who receives a complaint or request from a recipient about the service the provider provides shall—
- acknowledge receipt in writing of the complaint or request not later than 14 days after such receipt, and
- in the case of a complaint, make every effort to resolve the complaint satisfactorily and without delay; this does not apply to a complaint that is vexatious.
Code of Conduct
A provider who is subject to a code of conduct, or is a member of a trade association or professional body, shall if the code, association or body provides for recourse to a non-judicial dispute resolution procedure—
- inform the recipient of the availability of the procedure, and
- in any document that gives a detailed description of the service it provides, specify the existence of the procedure, and how a recipient can access detailed information about the procedure.
A competent authority in the State that has responsibility for supervising or regulating a service activity shall ensure that information on the significance of labels, and the criteria for applying labels and other quality marks, relating to that activity is easily accessible by the providers of services engaged in that activity and the recipients of those services
Guarantee and Professional Insurance Cover I
If a provider, in providing a service, is obliged to provide a financial guarantee in order to comply with a judicial decision, the obligation is satisfied by the production of an equivalent guarantee lodged with a credit institution established in another EU Member State and authorised in that Member State in accordance with the Credit Institutions Directive or an insurer established in another Member State and authorised in that Member State in accordance with the Insurance Directives.
The Minister may, after consultation, give a direction in writing to a provider whose services present, in the Minister’s opinion, a direct and particular risk to the health or safety of a recipient of the service concerned or any other person, or the financial security of a recipient of the service concerned.
The direction shall require the person the subject of the direction to obtain and maintain professional liability insurance in respect of a risk specified in the direction, or undertake to indemnify a recipient of that service in respect of any loss incurred by the recipient in that receipt, within a period specified in the direction.
Guarantee and Professional Insurance Cover II
When a provider established in another EU Member State becomes or seeks to become established in the State, the provider is not obliged to obtain professional liability insurance if the provider is already covered in the other Member State by professional liability insurance or a guarantee that is equivalent, or essentially comparable, as regards its purpose, and the cover it provides in terms of the insured risk, the insured amount or a ceiling for the guarantee, and possible exclusions from the cover, in the other Member State.
If professional liability insurance held, or a guarantee provided by a provider established in another Member State is not equivalent (a relevant competent authority in the State may require the provider to obtain additional professional liability insurance or a further guarantee to cover those aspects not already covered.
Where a provider is required to obtain professional liability insurance, to provide a guarantee or enter into some equivalent arrangement, a competent authority in the State shall accept as sufficient evidence of that insurance cover a certificate issued by a credit institution or insurer established in a Member State where the provider is already established. The above provisions do not affect professional liability insurance or guarantee arrangements provided for in any European legislation.
Commercial Communications by Regulated Professionals
A competent authority (regulator) in the State shall not impose a total prohibition on the use of commercial communications by providers of a service who are carrying on a regulated profession.
A competent authority in the State that regulates or supervises a regulated profession must ensure that commercial communications by providers of a service who are carrying on the regulated profession comply with professional rules that in particular, relate to the independence, dignity and integrity of the profession, and professional secrecy, in a manner consistent with the specific nature of the profession.
A competent authority in the State shall not make rules in relation to commercial communications by providers of a service who are carrying on a regulated profession unless the rules
- are non-discriminatory;
- are justified by an overriding reason relating to the public interest, and
- are proportionate.
A competent authority in the State shall not impose a requirement on a provider that the provider perform a specific service activity to the exclusion of other service activities, or that restricts the provider from performing different service activities jointly or in partnership with one or more other persons.
A competent authority in the State may impose the above requirement where the authority is responsible for a regulated profession, on members of the profession if the requirement is justified in order to guarantee compliance with the rules governing the ethics and conduct of the members of that profession, and the requirement is necessary to ensure the independence and impartiality of those members.
Where the authority is responsible for supervising or regulating the activities of providers of certification, accreditation, technical monitoring, test or trial services, the requirement may be made provided that it is justified in order to ensure the independence and impartiality of those providers.
When providers of a class referred to above are authorised to undertake multidisciplinary activities between themselves, the competent authority or authorities in the State responsible for supervising or regulating those activities shall ensure that—
- conflicts of interest and incompatibilities as between providers undertaking those activities are prevented,
- the independence and impartiality required for undertaking those activities are secured, and
- the rules governing professional ethics and conduct for those activities are compatible with one another, especially as regards matters of professional secrecy.
References and Sources
Brian Doolan, A Casebook on Irish Business Law (1989)
Henry Ellis, Modern Irish Commercial and Consumer Law (2004)
Michael Forde, Commercial Law, 3rd Edition (2005)
Linehan, Irish Business and Commercial Law (1995)
McCormack, Reservation of Title 1990 (1994)
Patrick O’Reilly (ed.), Commercial and Consumer Law (Statutes) (2000)
Sean Quinn (ed.), Statutes Revised on Commercial Law, 1695-1913 (1994)
Fidelma White, Commercial Law (2003) (2nd Ed 2012)
Fidelma White, Commercial and Economic Law In Ireland (2011)
Vincent Grogan, Thelma King and Edward J. Donelan, Sale of Goods and Supply of Services: A Guide to the Legislation (Law Society of Ireland, 1983)
Paul Anthony McDermott, Contract Law (Butterworths, Dublin, 2001)
2011 Report of the Sales Law Review Group,
Atiyah and Adam’s Sale of Goods 13th Ed (2016)
Bridge, Benjamin’s Sale of Goods 9th Ed (2015);
Bridge, The Sale of Goods 3rd Ed (2014)
Blackstones’ Statutes Commercial and Consumer Law 2017
Goode on Commercial Law 5th Ed 2017