Provision of Services Regulations 2009

The Provision of Services Regulations 2009 came into effect on 28 December 2009, and implement the EU Services Directive (2006/123/EC) in the UK. The aim of the Services Directive and the POS Regulations is to encourage the provision of services between EU Member States by simplifying the process for providing those services.

This is achieved by imposing a number of obligations on service providers in relation to how they interact with actual and potential customers. These obligations centre on the provision of basic information, the handling of complaints, and the prohibition of discrimination.

Background

The Provision of Services Regulations (“POS Regulations”) apply to “service providers” – any individual or organisation providing a relevant service for which they normally charge. It is not necessary for a service provider to provide cross-border services in order for the POS Regulations to apply, so a UK service provider providing services to UK customers will also be subject to the POS Regulations.

The POS Regulations only apply to individuals resident in an EEA state, or organisations established in an EEA state, that use or wish to use a relevant service.

The services that are subject to the POS Regulations are broadly defined to include any economic activity that is normally provided for remuneration. As a result, the POS Regulations will apply to most service sectors, including:

• B2B services such as consultancy and professional services, marketing, advertising, and commercial agents;
• B2B and B2C services such as architects, catering services, estate agents, financial advisers and distributive trades; and
• B2C services such as tourism, restaurants, private schools and universities, leisure services, plumbers and electricians.

Certain services are expressly excluded from the scope of the POS Regulations, including financial services, employment contracts, transport services, healthcare services, and gambling activities.

Information provision requirements

Service providers operating in the UK are required to make certain information available to their customers, in accordance with the requirements set out in Part 2 of the POS Regulations, regardless of where they are based or established. In practice, this obligation is likely to have a minimal impact on most UK service providers, as they are already subject to information requirements under other legislation, such as the Companies (Trading Disclosures) Regulations, the Distance Selling Regulations and the E-Commerce Regulations. Some trade and professional associations also impose specific requirements.

Information to be made available

Regulation 8(1) of the POS Regulations requires the following information be made available to all customers:

• Contact details, including a postal or email address or fax number, a telephone number, and the service provider’s official address;
• Name;
• Legal status and form;
• Geographic address of where the service provider is established;
• Contact details for rapid and direct communication;
• Details of any registration on a public register;
• Details of any authorisation scheme to which the service provided is subject;
• VAT number;
• Details of any professional title granted, if carrying on a regulated profession;
• General terms and conditions;
• Any contractual terms, if any, regarding the governing law applicable to the contract;
• The existence of any after-sales guarantee that is not legally required;
• The price of the service;
• The main features of the service; and
• Any professional liability insurance or guarantee the service provider is required to hold.

Information to be provided upon request

In addition to the above, if a customer so requests, service providers are required to provide the following information: the price of the service, or an estimate of the price, or at least details of the method to be used for calculating the price; a reference to any professional rules applicable in the EEA state in which the service provider is established; information about any other activities the service provider carries out which are directly linked to the service in question, and any steps taken to avoid a conflict of interests; and any codes of conduct to which the service provider is subject.

Method and timing of provision of information

The POS Regulations give service providers a choice of four methods for making this information available to the customer: on the service provider’s own initiative; easily available where the service is provided or the contract is concluded; easily available electronically; or in any information document which includes a detailed description of the services.

All the above information should be considered as pre-contractual or pre-service commencement information. The service provider should therefore make it available, or provide it if asked, in good time before signing the contract or, if there is no written contract, in good time before the service is provided.

Complaints handling requirements

All service providers operating in the UK must comply with the complaints handling requirements set out in Part 2 of the POS Regulations, irrespective of where the service provider is based or established. Under Regulation 12, a service provider must respond to a complaint from a customer as “quickly as possible”. Since complaints can vary in complexity and seriousness, there is no set time limit or definition in the POS Regulations. The Department for Business Innovation and Skills (BIS) has provided guidance on this point, saying that factors to be considered when establishing what might constitute ‘as quickly as possible’ would include the means and ease by which the customer can be contacted; the nature and complexity of the specific case; the availability of the customer; whether information is needed from a third party; and any language issues.

In addition to the above, service providers are subject to a requirement to use their “best efforts” to resolve the complaint in a way in which the customer could reasonably be expected to be satisfied. It should be noted that this obligation does not apply to vexatious complaints – complaints that are clearly unsubstantiated or malicious, not those that are merely annoying or inconvenient.

Prohibition on discrimination

Under Part 5 of the POS Regulations, all service providers operating in the UK who are based in the UK or another EEA state must comply with the obligation not to discriminate, in their general conditions of supply, against customers who are individuals because of their place of residence. Discrimination in this sense would include offering the services on different terms, providing a different service, or refusing to provide a service.

This prohibition will not apply if the service provider can show that the difference in general conditions is directly justified by objective criteria. There is no definitive list of objective criteria, since these will vary from service provider to service provider, and from service to service, but examples of such objective criteria include: lack of adequate IP protection; additional costs; additional risks due to different rules in EEA states; and changing market conditions.

These objective criteria can be used as a basis for an outright refusal to provide a service. However, such a blanket refusal will be more difficult to justify than any refusal or adaptation on a case-by-case basis. In order to justify an outright refusal, a service provider must be sure that providing the service to the relevant location would put “excessive strain” on the business.

Enforcement

When a breach of the POS Regulations by a service provider harms the collective interests of all consumers, an enforcement body (such as the Office of Fair Trading) will have the right to take action under the Enterprise Act 2002. However, individual consumers cannot bring complaints or actions under the Enterprise Act and will need to seek redress for any breach of the POS Regulations through the court.

Summary

Many service providers will already fulfil all or most of the information provision obligations imposed by the POS Regulations, as they will be subject to similar requirements under other legislation. Where a conflict arises between the POS Regulations and any other EU legislation, the other legislation will take precedence. It is therefore unlikely that the POS Regulations will cause any major changes or problems for UK service providers, but it is nonetheless advisable for businesses to undertake a review of their processes to ensure compliance with the information provision, complaints handling and non-discrimination requirements of this new legislation.

A copy of the POS Regulations can be found at http://www.opsi.gov.uk/si/si2009/uksi_20092999_en_1

A copy of the BIS guidance can be found at http://www.berr.gov.uk/files/file53100.pdf