Financial Services (Distance Marketing) Act 2006 (Gibraltar)

Financial Services (Distance Marketing) Act 2006

Published: 2007-02-15

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Financial Services (Distance Marketing)

2006-23

FINANCIAL SERVICES (DISTANCE MARKETING) ACT 2006

Principal Act Act. No. 2006-23 Commencement (LN. 2007/027) 15.2.2007 Assent 7.11.2006

Amending enactments

Relevant current provisions

Commencement date

LN. 2010/080 ss. 7(6) & 14 29.4.2010 English sources: None cited EU Legislation/International Agreements involved: Directive 90/619/EEC Directive 97/5/EC Directive 97/7/EC Directive 98/27/EC Directive 2002/65/EC Directive 2005/60/EC Directive 2006/48/EC

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ARRANGEMENT OF SECTIONS

Section 1. Title and commencement. 2. Interpretation. 3. Circumstances when sections 7 to 15 apply. 4. Circumstances when sections 7 to 15 do not apply. 5. Initial Service Agreements. 6. Financial services marketed by an intermediary. 7. Information required prior to the conclusion of the contract. 8. Written and additional information. 9. Right to cancel. 10. Cancellation period. 11. Exceptions to the right to cancel. 12. Automatic cancellation of an attached contract. 13. Payment for services provided before cancellation. 14. Repealed. 15. Unsolicited services or communications. 16. Prevention of contracting-out. 17. Consideration of complaints. 18. Injunctions to secure compliance with this Act. 19. Offences. 20. Regulations.

SCHEDULE 1 INFORMATION REQUIRED PRIOR TO

THE CONCLUSION OF THE CONTRACT

SCHEDULE 2 INFORMATION REQUIRED IN THE CASE OF

VOICE TELEPHONE COMMUNICATIONS

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AN ACT TO TRANSPOSE INTO THE LAW OF GIBRALTAR DIRECTIVE 2002/65/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 23 SEPTEMBER 2002 CONCERNING THE DISTANCE MARKETING OF CONSUMER FINANCIAL SERVICES AND AMENDING COUNCIL DIRECTIVE 90/619/EEC AND DIRECTIVES 97/7/EC AND 98/27/EC. Title and commencement. 1. This Act may be cited as the Financial Services (Distance Marketing) Act 2006 and comes into operation on the day appointed by the Minister with responsibility for financial services by notice in the Gazette. Interpretation. 2.(1) In this Act–

“the Authority” means such person or body as the Minister may, by notice in the Gazette, appoint;

“breach” means a contravention by a supplier or an intermediary of a

prohibition in, or a failure by him to comply with a requirement of, this Act;

“business” includes a trade or profession; “consumer” means any individual who, in contracts to which this Act

applies, is acting for purposes which are outside any business he may carry on;

“credit” includes a cash loan and any other form of financial

accommodation, and for this purpose “cash” includes money in any form;

“the Directive” means Directive 2002/65/EC of the European Parliament

and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC;

“distance contract” means any contract concerning one or more financial

services concluded between a supplier or an intermediary and a consumer under an organised distance sales or service-provision scheme run by the supplier or by an intermediary, who, for the purpose of that contract, makes exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

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“durable medium” means any instrument which enables a consumer to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;

“EEA supplier” means a supplier who is a national of an EEA State, or a

company or firm (within the meaning of Article 48 of the Treaty establishing the European Community) formed in accordance with the law of an EEA State;

“EEA State” means a State which is a contracting party to the Agreement

on the European Economic Area signed at Oporto on 2nd May 1992, as adjusted by the Protocol signed at Brussels on 17th March 1993;

“financial service” means any service of a banking, credit, insurance,

personal pension, investment or payment nature; “licensee” means a person licensed to carry-on–

(a) deposit-taking business under the Financial Services (Banking) Act♦; or

(b) insurance business under the Insurance Companies Act•; or

Services Act; and includes a person authorised or recognised under any of those

Acts and “licensed business” and “licensed activity” shall be construed accordingly;

“means of distance communication” means any means which, without

the simultaneous physical presence of the supplier or intermediary and the consumer, may be used for the marketing of a service between those parties;

“Minister” means the Minister with responsibility for financial services; “relevant date” means the date on which this Act comes into operation “supplier” means any person who, acting in his commercial or

professional capacity, is the contractual provider of services.

♦ 1992-11 • 1987-10

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(2) In this Act, subject to sub-section (1), any expression used in this Act which is also used in the Directive has the same meaning as in the Directive. Circumstances when sections 7 to 15 apply. 3.(1) Sections 7 to 14 shall apply, subject to sections 4 and 5, in relation to distance contracts made on or after the relevant date. (2) Section 15 shall apply in relation to financial services supplied on or after the relevant date under an organised distance sales or service-provision scheme run by the supplier or by an intermediary, who, for the purpose of that supply, makes exclusive use of one or more means of distance communication up to and including the time at which the financial services are supplied. Circumstances when sections 7 to 15 do not apply. 4.(1) Where an EEA State has transposed the Directive or has obligations in its domestic law corresponding to those provided for in the Directive–

(a) sections 7 to 14 shall not apply in relation to any contract made between an EEA supplier contracting from an establishment in that EEA State and a consumer in Gibraltar; and

(b) section 15 shall not apply to any supply of financial services by

an EEA supplier from an establishment in that EEA State to a consumer in Gibraltar;

if the provisions by which that State has transposed the Directive, or the obligations in the domestic law of that State corresponding to those provided for in the Directive, as the case may be, apply to that contract or that supply. (2) Subject to sub-section (5) and section 6(2) and (3)–

(a) sections 7 to 11 shall not apply in relation to any contract made

by a supplier who is a licensee, the making or performance of which constitutes or is part of a licensed business or activity carried on by him;

(b) section 15 shall not apply to any supply of financial services by

a supplier who is a licensee, where that supply constitutes or is part of a licensed business or activity carried on by him.

(3) Sub-section (2) shall not apply in relation to any contract or supply of financial services made by a supplier who is the operator, trustee or depositary of a scheme which is a recognised scheme by virtue of section 34

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of the Financial Services (Collective Investment Schemes) Act 2005, where the making or performance of the contract or the supply of the financial services constitutes or is part of a licensed business or activity carried on by him. (4) In sub-section (3) “operator”, “trustee” and “depositary” each has the same meaning as in section 2 of the Financial Services (Collective Investment Schemes) Act 2005. Initial Service Agreements. 5.(1) Where a consumer and a supplier enter an initial service agreement and–

(a) successive operations of the same nature; or (b) a series of separate operations of the same nature;

are subsequently performed between them over time and within the framework of that agreement, then, if any of sections 7 to 14 apply, they shall apply only to the initial service agreement. (2) Where a consumer and a supplier do not enter an initial service agreement and–

(a) successive operations of the same nature; or (b) a series of separate operations of the same nature;

are performed between them over time, then, if sections 7 and 8 apply, they shall apply only–

(i) when the first operation is performed; and

(ii) to any operation which is performed more than one year after the previous operation.

(3) For the purposes of this section, “initial service agreement” shall include, for example, an agreement for the provision of–

(a) a bank account; (b) a credit card; or (c) portfolio management services.

(4) For the purposes of this section, “operations” includes, for example–

(a) deposits to or withdrawals from a bank account;

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(b) payments by a credit card; (c) transactions carried out within the framework of an initial

service agreement for portfolio management services; and (d) subscriptions to new units or shares of the same collective

investment scheme;

but shall not include adding new elements to an existing initial service agreement, for example adding the possibility of using an electronic payment instrument together with an existing bank account. Financial services marketed by an intermediary. 6.(1) This section shall apply where a financial service is marketed by an intermediary. (2) Notwithstanding section 4(2), sections 7 and 8 shall apply in relation to the intermediary unless the intermediary is a licensee and the marketing of the financial service constitutes or is part of a licensed business or activity carried on by him. (3) Notwithstanding sub-sections (2) to (4) of section 4, section 15 shall apply to the intermediary unless the intermediary is a licensee and is acting in the course of a licensed business or activity carried on by him. Information required prior to the conclusion of the contract. 7.(1) Subject to sub-section (4), in good time prior to the consumer being bound by any distance contract, the supplier or the intermediary shall provide to the consumer the information specified in Schedule 1. (2) The information specified in Schedule 1 shall be provided in a clear and comprehensible manner appropriate to the means of distance communication used, with due regard in particular to the principles of good faith in commercial transactions and the principles governing the protection of those who are unable to give their consent such as minors. (3) Subject to sub-section (4), the supplier or the intermediary shall make clear his commercial purpose when providing the information specified in Schedule 1. (4) In the case of a voice telephone communication–

(a) the supplier or the intermediary shall make clear his identity and the commercial purpose of any call initiated by him at the beginning of any conversation with the consumer; and

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(b) if the consumer explicitly consents, only the information

specified in Schedule 2 need be given. (5) The supplier or the intermediary shall ensure that the information he provides to the consumer pursuant to this section, regarding the contractual obligations which would arise if the distance contract were concluded, accurately reflects the contractual obligations which would arise under the law presumed to be applicable to that contract. (6) Where the provisions of the Financial Services (EEA) (Payment Services) Regulations 2010 are also applicable, the requirements of this section, with the exception of paragraphs (2)(c) to (g), (3)(a), (d) and (e), and (4)(b), shall be replaced with regulations 36, 37, 41 and 42 of those Regulations. Written and additional information. 8.(1) The supplier or the intermediary under a distance contract shall communicate to the consumer on paper, or in another durable medium which is available and accessible to the consumer, all the contractual terms and conditions and the information specified in Schedule 1, either–

(a) in good time prior to the consumer being bound by that

distance contract; or (b) immediately after the conclusion of the contract, where the

contract has been concluded at the consumer’s request using a means of distance communication which does not enable provision in accordance with paragraph (a) of the contractual terms and conditions and the information specified in Schedule 1.

(2) The supplier or the intermediary shall communicate the contractual terms and conditions to the consumer on paper, if the consumer so requests at any time during their contractual relationship. (3) Sub-section (2) shall not apply if the supplier or the intermediary has already communicated the contractual terms and conditions to the consumer on paper during that contractual relationship, and those terms and conditions have not changed since they were so communicated. (4) The supplier or the intermediary shall change the means of distance communication with the consumer if the consumer so requests at any time during his contractual relationship with the supplier, unless that is incompatible with the distance contract or the nature of the financial service provided to the consumer.

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Right to cancel. 9.(1) Subject to section 11, if within the cancellation period set out in section 10, notice of cancellation is properly given by the consumer to the supplier, the notice of cancellation shall operate to cancel the distance contract. (2) Cancelling the contract shall have the effect of terminating the contract at the time at which the notice of cancellation is given. (3) For the purposes of this Act, a notice of cancellation is a notification given–

(a) orally (where the supplier has informed the consumer that

notice of cancellation may be given orally); (b) in writing; (c) in another durable medium available and accessible to the

supplier; which, however expressed, indicates the intention of the consumer to cancel the contract by that notification. (4) Notice of cancellation given under this section by a consumer to a supplier shall be treated as having been properly given if the consumer–

(a) gives it orally to the supplier (where the supplier has informed

the consumer that notice of cancellation may be given orally); (b) leaves it at or sends it by post to the address of the supplier last

known to the consumer and addressed to the supplier by name (in which case it shall be taken to have been given on the day on which it was so left or so posted);

supplier last known to the consumer (in which case it shall be taken to have been given on the day on which it was sent);

(d) sends it by electronic mail to the business electronic mail

address of the supplier last known to the consumer (in which case it shall be taken to have been given on the day on which it is sent); or

(e) by other electronic means–

(i) sends it to an internet address or web-site which the supplier has notified the consumer may be used for the purpose, or

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(ii) indicates it on such a web-site in accordance with

instructions which are on the web-site or which the supplier has provided to the consumer,

(in which case it shall be taken to have been given on the day on which it is sent to that address or web-site or indicated on that web-site). (5) The references in sub-section (4)(b) to the address of the supplier shall, in the case of a supplier which is a body corporate, be treated as including a reference to the address of the secretary or clerk of that body. (6) The references in sub-section (4)(b) to the address of the supplier shall, in the case of a supplier which is a partnership, be treated as including a reference to the address of a partner or a person having control or management of the partnership business. (7) In this section–

(a) every reference to the supplier shall include a reference to any

other person previously notified by or on behalf of the supplier to the consumer as a person to whom notice of cancellation may be given;

(b) the references to giving notice of cancellation orally shall

include giving such notice by voice telephone communication, where the supplier has informed the consumer that notice of cancellation may be given in that way; and

message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service.

Cancellation period. 10.(1) For the purposes of section 9, the cancellation period shall begin on the day on which the distance contract is concluded (“conclusion day”) and shall end as provided for in sub-sections (2) to (5). (2) Where the supplier or the intermediary has complied with section 8(1) on or before conclusion day, the cancellation period shall end on the expiry of fourteen calendar days beginning with the day after conclusion day. (3) Where the supplier or the intermediary has not complied with section 8(1) on or before conclusion day, but subsequently communicates to the consumer on paper, or in another durable medium which is available and

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accessible to the consumer, all the contractual terms and conditions and the information required under section 8(1), the cancellation period shall end on the expiry of fourteen calendar days beginning with the day after the day on which the consumer receives the last of those terms and conditions and that information. (4) In the case of a distance contract relating to life insurance, for the references to conclusion day in sub-sections (2) and (3) there shall be substituted references to the day on which the consumer is informed that the distance contract has been concluded. (5) In the case of a distance contract relating to life insurance or a personal pension, for the references to fourteen calendar days in sub- sections (2) and (3) there shall be substituted references to thirty calendar days. Exceptions to the right to cancel. 11.(1) Subject to sub-sections (2) to (4), section 9 shall not confer on a consumer a right to cancel a distance contract which is–

(a) a contract for a financial service where the price of that service depends on fluctuations in the financial market outside the supplier’s control, which may occur during the cancellation period, such as services related to–

(i) foreign exchange; (ii) money market instruments;

(iii) transferable securities; (iv) units or shares in collective investment schemes; (v) financial-futures contracts, including equivalent cash-

settled instruments; (vi) forward interest-rate agreements; (vii) interest-rate, currency and equity swaps; (viii) options to acquire or dispose of any instruments referred

to in sub-paragraphs (i) to (vii), including cash-settled instruments and options on currency and on interest rates;

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(b) a contract which covers travel and baggage or similar short- term insurance policies and which has a total duration of less than one month;

both parties at the consumer’s express request before the consumer gives notice of cancellation;

(d) a contract under which a supplier provides credit to a consumer

and the consumer’s obligation to repay is secured by a legal mortgage on land;

(e) a contract under which the supplier provides credit to a

consumer for the purchase of a right to use properties on a timeshare basis;

(f) a contract under which a supplier provides credit to a consumer

for the purchase of land or an existing building, or an agreement for a bridging loan in connection with the purchase of land or an existing building.

(2) Sub-section (1) shall not apply to a distance contract if the supplier (and not the intermediary) has not complied with section 8(1), unless–

(a) the circumstances fall within section 8(1)(b); and (b) the supplier (and not the intermediary) has complied with

section 7(1) and (2) or, if applicable, section 7(4)(b), and with section 7(5).

(3) Sub-section (1) shall not apply to a distance contract if the intermediary has not complied with section 8(1) and the supplier has not done what the intermediary was required to do by that section, unless–

(a) the circumstances fall within section 8(1)(b); and (b) either–

(i) the intermediary has complied with section 7(1) and (2) or, if applicable, section 7(4)(b), and with section 7(5); or

(ii) the supplier has done what the intermediary was required

to do by section 7(1) and (2) or, if applicable, section 7(4)(b), and by section 7(5).

(4) Where–

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(a) the conditions in sub-section (2)(a) and (b) or sub-section (3)(a) and (b) are satisfied in relation to a distance contract falling within sub-section (1);

(b) the supplier or the intermediary has not complied with section

8(1); and (c) the consumer has not, by the end of the sixth day after the day

on which the distance contract is concluded, received all the contractual terms and conditions and the information required under section 8(1);

the consumer may cancel the contract under section 9 during the period beginning on the seventh day after the day on which the distance contract is concluded and ending when he receives the last of the contractual terms and conditions and the information required under section 8(1).

Automatic cancellation of an attached contract. 12.(1) For the purposes of this section, where there is a distance contract for the provision of a financial service by a supplier to a consumer (“the main contract”) and there is a further distance contract (“the secondary contract”) for the provision to that consumer of a further financial service by–

(a) the same supplier; or (b) a third party, the further financial service being provided

pursuant to an agreement between the third party and the supplier under the main contract;

then the secondary contract (referred to in this Act as an “attached contract”) is attached to the main contract if any of the conditions in sub- section (2) shall be satisfied. (2) The conditions referred to in sub-section (1) are–

(a) the secondary contract is entered into in compliance with a term of the main contract;

(b) the main contract is, or is to be, financed by the secondary

contract; (c) the secondary contract is entered into by the consumer to

induce the supplier to enter into the main contract; (d) performance of the secondary contract requires performance of

the main contract.

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(3) Where a main contract is cancelled by a notice of cancellation given under section 9–

(a) the cancellation of the main contract shall also operate to cancel, at the time at which the main contract is cancelled, any attached contract which is not a contract or agreement of a type listed in section 11(1); and

(b) the supplier under the main contract shall, if he is not the

supplier under the attached contract, forthwith on receipt of the notice of cancellation inform the supplier under the attached contract.

(4) Sub-section (3)(a) shall not apply to an attached contract if, at or before the time at which the notice of cancellation in respect of the main contract is given, the consumer has given and not withdrawn a notice to the supplier under the main contract that cancellation of the main contract shall not to operate to cancel that attached contract. Payment for services provided before cancellation. 13.(1) This section applies where a cancellation event occurs in relation to a distance contract. (2) In this section, “cancellation event” means the cancellation of a distance contract under section 9 or 12. (3) The supplier shall refund any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was paid, less any charge made in accordance with sub-section (6), as soon as possible and in any event within a period not exceeding 30 calendar days beginning with–

(a) the day on which the cancellation event occurred; or (b) if the supplier proves that this is later–

(i) in the case of a contract cancelled under section 9, the

day on which the supplier in fact received the notice of cancellation; or

(ii) in the case of an attached contract under which the

supplier is not the supplier under the main contract, the day on which, pursuant to section 12(3)(b), he was in fact informed by the supplier under the main contract of the cancellation of the main contract.

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(4) The reference in sub-section (3) to any sum paid on behalf of the consumer shall include any sum paid by any other person (“the creditor”), who is not the supplier, under an agreement between the consumer and the creditor by which the creditor provides the consumer with credit of any amount. (5) Where any security has been provided in relation to the contract, the security (so far as it has been provided) shall, on cancellation under section 9 or 12, be treated as never having had effect; and any property lodged solely for the purposes of the security as so provided shall be returned forthwith by the person with whom it is lodged. (6) Subject to sub-sections (7), (8) and (9), the supplier may make a charge for any service actually provided by the supplier in accordance with the contract. (7) The charge shall not exceed an amount which is in proportion to the extent of the service provided to the consumer prior to the time at which the cancellation event occurred (including the service of arranging to provide the financial service) in comparison with the full coverage of the contract, and in any event shall not be such that it could be construed as a penalty. (8) The supplier shall not make any charge unless he can prove on the balance of probabilities that the consumer was informed about the amount payable in accordance with–

(a) section 7(1) and paragraph 3(a) of Schedule 1; (b) section 7(4) and paragraph 5 of Schedule 2; or (c) rules corresponding to those provisions;

as the case may be. (9) The supplier shall not make any charge if, without the consumer’s prior request, he commenced performance of the contract prior to the expiry of the relevant cancellation period. (10) In sub-section (9), the relevant cancellation period shall be the cancellation period which–

(a) in the case of a main contract, is applicable to that contract; or (b) in the case of an attached contract, would be applicable to that

contract if that contract were a main contract; under section 10.

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(11) The consumer shall, as soon as possible and in any event within a period not exceeding 30 calendar days beginning with the day on which the cancellation event occurred–

(a) refund any sum paid by or on behalf of the supplier under or in relation to that contract to the person by whom it was paid; and

(b) either restore to the supplier any property of which he has

acquired possession under that contract, or deliver or send that property to any person to whom, under section 9, a notice of cancellation could have been given in respect of that contract.

(12) Breach of a duty imposed by sub-section (11) on a consumer is actionable as a breach of statutory duty. 14. Repealed.

Unsolicited services or communications. 15.(1) A person (“the recipient”) who receives unsolicited financial services for purposes other than those of his business from another person who supplies those services in the course of his business, shall not thereby become subject to any obligation to make payment or otherwise. (2) Where, in the course of any business–

(a) unsolicited financial services are supplied for purposes other than those of the recipient’s business; and

(b) a person includes with the supply of those services a demand

for payment, or an assertion of a present or prospective right to payment in respect of those service;

that person shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale. (3) A person who, not having reasonable cause to believe that there is a right to payment, in the course of any business and with a view to obtaining payment for what he knows are unsolicited financial services supplied as mentioned in sub-section (2)–

(a) threatens to bring any legal proceedings; (b) places or causes to be placed the name of any person on a list

of defaulters or debtors or threatens to do so; or (c) invokes or causes to be invoked any other collection procedure

or threatens to do so;

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shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale. (4) In this section, “unsolicited” means, in relation to financial services supplied to any person, that they are supplied without any prior request made by or on behalf of that person. (5) For the purposes of this section, a person who sends to a recipient an invoice or similar document which states the amount of a payment is to be regarded as asserting a right to payment. (6) This section is without prejudice to any right a supplier may have at any time, by contract or otherwise, to renew a distance contract with a consumer without any request made by or on behalf of that consumer prior to the renewal of that contract. (7) A supplier or intermediary shall not make any unsolicited distance communication using any voice telephony system, an automatic calling machine or a facsimile machine, without the consumer’s prior consent, and the consumer shall not thereby become subject to any obligation to make payment for the use of such means of distance communication. Prevention of contracting-out. 16.(1) A term contained in any contract shall be void if, and to the extent that, it is inconsistent with the application of a provision of this Act to a distance contract or the application of section 15 to a supply of unsolicited financial services. (2) Where a provision of this Act specifies a duty or liability of the consumer in certain circumstances, a term contained in a contract shall be inconsistent with that provision if it purports to impose, directly or indirectly, an additional or greater duty or liability on him in those circumstances. (3) This Act shall apply notwithstanding any contract term which applies or purports to apply the law of a State which is not an EEA State if the contract or supply has a close connection with the territory of an EEA State. Consideration of complaints. 17. The Authority shall consider any complaint made to it about a breach unless the complaint appears to the Authority to be frivolous or vexatious. Injunctions to secure compliance with this Act.

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18.(1) The Authority may apply for an injunction (including an interim injunction) against any person who appears to it to be responsible for a breach. (2) On an application made under this section, the court may grant an injunction on such terms as it thinks fit to secure compliance with this Act. (3) In deciding whether or not to apply for an injunction in respect of a breach, the Authority may, if it considers it appropriate to do so, have regard to any undertaking as to compliance with this Act given to it by or on behalf of any person. Offences. 19.(1) A supplier or an intermediary under a distance contract who fails to comply with section 7(3) or (4)(a) or section 8(2) or (4) shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale. (2) If an offence under sub-section (1), or under section 15(2) or (3), committed by a body corporate is shown–

(a) to have been committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity; or

(b) to be attributable to any neglect on his part;

he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly. (3) If the affairs of a body corporate are managed by its members, sub- section (2) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body. (4) If an offence under sub-section (1), or under section 15(2) or (3), committed by a partnership is shown–

(a) to have been committed with the consent or connivance of any partner, or any person who was purporting to act as a partner; or

(b) to be attributable to any neglect on his part;

he as well as the partnership shall be guilty of an offence and liable to be proceeded against and punished accordingly.

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(5) If an offence under sub-section (1), or under section 15(2) or (3), committed by an unincorporated association (other than a partnership) is shown–

(a) to have been committed with the consent or connivance of an officer of the association or a member of its governing body, or any person who was purporting to act in any such capacity; or

(b) to be attributable to any neglect on his part;

he as well as the association shall be guilty of an offence and liable to be proceeded against and punished accordingly. Regulations. 20. The Minister may make regulations prescribing all matters which by this Act may be required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the provisions of this Act.

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SCHEDULE 1

INFORMATION REQUIRED PRIOR TO THE CONCLUSION OF THE CONTRACT

Sections 7(1) and 8(1)

1. About the Supplier. (a) The identity and the main business of the supplier, the geographical address at which the supplier is established and any other geographical address relevant to the consumer’s relations with the supplier. (b) Where the supplier and the intermediary has a representative established in the consumer’s country or territory of residence, the identity of that representative and the geographical address relevant to the consumer’s relations with him. (c) Where the consumer’s dealings are with any professional other than the supplier, the identity of that professional, the capacity in which he is acting with respect to the consumer, and the geographical address relevant to the consumer’s relations with that professional. (d) Where the supplier and the intermediary are registered in a trade or similar public register, the particulars of the register in which they are entered and their registration number or an equivalent means of identification in that register. (e) Where the supplier’s and the intermediary’s activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority. 2. About the Financial Service. (a) A description of the main characteristics of the financial service. (b) The total price to be paid by the consumer to the supplier for the financial service, including all related fees, charges and expenses, and all taxes paid via the supplier or, where an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it. (c) Where relevant, notice indicating that: (i) the financial service is related to instruments involving special risks related to their specific features or the operations to be executed or whose price depends on fluctuations in the financial markets outside the supplier’s control; and (ii) historical performances are no indicators for future performances. (d) Notice of the possibility that other taxes or costs may exist that are not paid via the supplier or imposed by him.

Financial Services (Distance Marketing)

2006-23

(e) Any limitations of the period for which the information provided is valid. (f) The arrangements for payment and for performance. (g) Any specific additional cost for the consumer of using the means of distance communication, if such additional cost is charged. 3. About the Distance Contract. (a) Whether or not there is a right of cancellation and, where there is a right of cancellation, its duration and the conditions for exercising it, including information on the amount which the consumer may be required to pay in accordance with section 13, as well as the consequences of not exercising that right. (b) The minimum duration of the distance contract in the case of financial services to be performed indefinitely or recurrently. (c) Information on any rights the parties may have to terminate the distance contract early or unilaterally by virtue of the terms of the contract, including any penalties imposed by the contract in such cases. (d) Practical instructions for exercising the right to cancel in accordance with section 9 indicating, among other things, the address at which the notice of cancellation should be left or to which it should be sent by post, and any facsimile number or electronic mail address to which it should be sent. (e) The EEA State or States whose laws are taken by the supplier as a basis for the establishment of relations with the consumer prior to the conclusion of the distance contract. (f) Any contractual clause on the law applicable to the distance contract or on the competent court. (g) In which language, or languages: (i) the contractual terms and conditions, and the prior information specified in this Schedule, are supplied; and (ii) the supplier and the intermediary, with the agreement of the consumer, undertakes to communicate during the duration of the distance contract. 4 About Redress. (a) Whether or not there is an out-of-court complaint and redress mechanism for the consumer and, if so, the methods for having access to it.

Financial Services (Distance Marketing)

2006-23

(b) The existence of guarantee funds or other compensation arrangements, except to the extent that they are required by Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit guarantee schemes or Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor compensation schemes.

Financial Services (Distance Marketing)

2006-23

SCHEDULE 2

INFORMATION REQUIRED IN THE CASE OF VOICE TELEPHONE COMMUNICATIONS

Section 7(4)(b)

1. The identity of the person in contact with the consumer and his link with the supplier. 2. A description of the main characteristics of the financial service. 3. The total price to be paid by the consumer to the supplier for the financial service including all taxes paid via the supplier or, if an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it. 4. Notice of the possibility that other taxes or costs may exist that are not paid via the supplier or imposed by him. 5. Whether or not there is a right to cancel and, where there is such a right, its duration and the conditions for exercising it, including information on the amount which the consumer may be required to pay in accordance with section 13, as well as the consequences of not exercising that right. 6. That other information is available on request and the nature of that information.