Ireland: Unfair Terms In Consumer Contracts – About Time For A ‘Health Check'?

Last Updated: 5 November 2018
Article by Helen Kelly and Kate McKenna

The European Commission has recently actively confronted behaviours of large multinationals which it views as threatening the rights of European consumers. With this more aggressive European stance, and with ample consumer regulatory powers under current Irish legislation allowing scope for interventionist action, companies need to be mindful of compliance and the potential repercussions of terms and conditions included in contracts with consumers.

Irish Law

The European Communities (Unfair Terms in Consumer Contracts Regulations) 1995 (as amended) (the "Regulations") regulate contracts between consumers and businesses, such that businesses do not have absolute freedom to include any and all contractual terms in their interactions with consumers.

The Regulations require that contractual terms be "fair" and prohibit terms which cause a significant imbalance in the position of the consumer, when compared to the position of the business. In making this assessment, a court will have regard to the circumstances in which the contract was concluded and the nature of the goods or services being provided.

This fairness requirement applies only to contractual terms which are not "individually negotiated" by the business and the consumer. In addition, it does not apply to terms that form the very subject matter of the contract which are expressed in plain language.

While these are important carve outs from the Regulations, it is important for businesses to be aware that Irish, and indeed UK courts, have not always been consistent in interpreting the scope of the Regulations. In particular, the Irish courts have recently adopted contrasting approaches on whether mortgage terms come within the scope of the Regulations.

European Law and Developments

The Irish Regulations were introduced following the European Directive on Unfair Terms in Consumer Contracts (the "Unfair Terms Directive"). In April 2018, the European Commission published proposals to amend the existing Unfair Terms Directive to include provisions allowing for national penalties for the inclusion of unfair terms in consumer contracts.  The proposed amendments will include prescriptive guidance on the calculation of such penalties at a national level, including a requirement to take into account the seller's annual turnover and net profits, and any previous violations on an EU wide level.

Under the ambit of the Consumer Protection Cooperation Network which brings together consumer authorities across the Member States, the European Commission has sought to curb contractual practices in a number of high-profile recent interventions. In November 2016, and July and September 2018 the European Commission, acting with the cooperation of Member State authorities, expressed concerns regarding the standard terms and conditions utilised by a number of large multinational online businesses. It called on national authorities to "act swiftly", given that the European Commission itself cannot impose consumer law sanctions on businesses. The particular terms which it considered inconsistent with EU consumer law included:

  • Terms preventing consumers from identifying the commercial nature of communications and sponsored content
  • Terms requiring consumers to waive their mandatory consumer rights
  • Terms allowing for unilateral termination of a contract, for any reason, or unilateral changes to contractual terms and fees
  • Terms implying that a court unconnected to the domicile or residence of the consumer may have jurisdiction over disputes
  • Terms excluding liability for personal harm and other damage

Irish Enforcement – Not to be Underestimated

In addition to the risk of investigative action by the European Commission, the potential for "unfair" contractual terms to be subject to enforcement by the Irish courts should not be underestimated. Indeed, the Irish courts can, of their own motion and without it being explicitly raised, consider the compliance of contracts with the Regulations and the Unfair Terms Directive.1 For example the Regulations recently came before the High Court in Bank of Ireland v McMahon & Anor2 and Ulster Bank Ireland Limited v Liam Costelloe and Gabrielle Bishop Costelloe.3

In addition, the Competition and Consumer Protection Commission has extensive enforcement powers and in particular can apply to the Irish courts for a declaration that a particular term is unfair such that its future use must be prohibited. As many large multinationals have their EU Headquarters in Ireland, other agencies across Europe may look to the Competition and Consumer Protection Commission to show leadership in this area.

While the CCPC currently does not have the power to levy administrative fines, recent developments and the upcoming ECN+ Directive indicate that a more direct role for the CCPC in directing fines may be forthcoming.  In any event, fines could be imposed by the Irish courts, and this proposal continues the trend at European level to pay increased attention to allegedly unfair terms in consumer contracts.

Message for Irish Businesses

With significant legal uncertainty, intervention possible at both the European and national level, and the severe reputational damage and costs at stake, businesses in Ireland should be alive to the requirements of the Regulations.  It is appropriate to take a close and conservative look at your compliance with the Regulations in particular through carrying out routine consumer law 'health checks' of your consumer contracts.  A full pro-active check can offer a valuable opportunity to bring any potentially problematic terms into compliance and avoid a costly regulatory investigation or court case.


1. Case C-40/08 Asturcom Telecomunicaciones SL v Rodriguez Nogueira [2009] ECR I-9579.

2. The Governor and Company of the Bank of Ireland v Patrick McMahon and Angela McMahon [2018] IEHC 455.

3. Ulster Bank Ireland Limited v Liam Costelloe and Gabrielle Bishop Costelloe [2018] IEHC 289.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions