NFH wrote on Jan 12^th, 2012 at 9:05am:

If I read Article 28 correctly, the relevant legislation must be published not later than 13 December 2013, with application by 13 June 2014.

It has been announced that the Treasury will be going ahead with a ban on credit card handling charges (also from the Directive) by the end of 2012. There has been no confirmation of how this will be done, nor any explanation of how this relates to the Treasury, rather than BIS. It addresses retail charges, not charges by banks, and the VAT issue which drew the Treasury to become involved in this matter is now resolved.

There is always a variety of ways open for enacting the provisions of Directives through legislation. The telephone charges issue generally falls within the province of BIS, although now that DCMS has total responsibility for Ofcom, the situation is unclear. This is further confused by the fact that Ofcom itself has not (yet) taken the power to regulate users of 084 numbers. If the Treasury is indeed going to be preparing legislation to enact the Directive, then some may ask why it does not do the full job.


As stated previously, I see this provision as largely removing the need for the 084 and 087 ranges in their present form, because a very large number of current users would not be able to use them once the effect of the Directive was enacted.

This is a factor which Ofcom must consider in the context of its forthcoming consultation. The implementation period for the regulations which will emerge from its current work will extend beyond 2014, so Ofcom must consider the effect now.


As suggested, we must be on the lookout for the enacting legislation, which could be found to be contained in wider legislation from one of three departments. This is however highly relevant to Ofcom and indeed the regulations imposed on its behalf by PP+.

Provisions of previous EU Directives have been accepted by the Commission as having been enacted through the existence of regulatory powers and policies, without fresh legislation. (I refer to a total prohibition of Silent Calls, when the original purpose of the call was for marketing - no legislation was made to enact this.) I am not sure that something so soft would wash in this case, when the boys come round to check before reporting to the Council and the Parliament in 2016, however one cannot be sure.

NFH wrote on Jan 12^th, 2012 at 10:48am:

This would make some sense.

One must assume that amendments would be made by SI. If subject to the negative procedure then there would be no debate, and if the positive, then the committee would have no power to amend the wording.

A number of interesting points emerge with reference to my previous comments. The Regulations do bear on PP+, which returns us to the anomalous position of 084 users. These regulations belong to BERR - now BIS, not the Treasury nor DCMS. Whilst the OFT, the TSI and Trading Standards departments of local authorities will remain, other aspects of the general Consumer Protection structure (i.e. Consumer Direct and Consumer Focus) are undergoing major change.

We dearly hope for clarity. Whilst it is not impossible that this may emerge, it is challenging to see just how this will happen and to monitor the process.

I notice that Article 3 of the directive states that the directive shall not apply to contracts in certain industries, e.g. healthcare, gambling, financial services and passenger transport services. This means, for example, that airlines will be able to continue using 0844 numbers; however it states that Article 19 (concerning card surcharges) does apply to passenger transport services.

Although there is not yet any obligation to comply with Article 21 of Directive 2011/83/EU on Consumer Rights, I asked Sky why they continue to operate on 0844 telephone numbers that the Directive considers to be an unfair commercial practice.

In response, they pointed out that the term "basic rate", as referenced in Article 21 of the Directive, is not defined in the Directive and currently is not defined either under English law or by Ofcom. They also referred me to an Ofcom document (see page 13) where the term "basic rate" is used for 0843, 0844 and 0845 numbers.

It seems that the UK enactment of Article 21 will need close scrutiny to define "basic rate" and to include the various industries that Article 3 excludes.