Sky high call charges?

Podcast

My friend William Campbell produces 2 interesting and informative podcasts: Here’s How and Challenging Opinions

In a recent episode of Here’s How, William talked to Director of Retail and Consumer Services at Comreg, Barbara Delaney.  A large part of the discussion concerned the use of 0818 numbers for customer service by companies like Sky and Ryanair, which William contended is in breach of an EU Directive.

In view of this and my own experience about how European laws about bank accounts are enacted in Ireland, I decided to do my own digging,

Those meddling Brussels bureaucrats and their laws

An EU Regulation does not require any implementing measures in the member states.  The GDPR is an example of a Regulation- the same law comes into effect in all members on May 25th, 2018.  However, most EU policy is enacted through Directives which must be transposed into national law by each member state.  This allows the member state to decide how best to implement it which, of course,  leaves them with a certain amount of leeway as to the exact rules to be adopted.

The Consumer Rights Directive

Directive 2011/83/EU is often called the Consumer Rights Directive (CRD).  Most of it concerns agreeing contracts by phone or internet, including Article 21:

Member States shall ensure that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate.

This Directive has been transposed into Irish law through Statutory Instrument 484/2013 which was signed into law by Richard Bruton, following a consultation exercise by the Department of Jobs, Enterprise and Innovation.

Article 27 of the S.I. deals with the Article 21 of the Directive.  Clause 1 basically restates Article 21 of the Directive and Clauses 2 to 5 seem to give the consumer further rights:

27. (1) Where a trader operates a telephone line for the purpose of permitting consumers to contact the trader about a contract concluded with the trader, calls by consumers to that line for that purpose shall not be charged at more than the basic rate.

(2) Where a trader operates a telephone line that contravenes paragraph (1), the trader shall reimburse the consumer to the extent of the excess charged, and a failure to do so is actionable by the consumer as a breach of statutory duty.

(3) Any provision of a contract which requires the consumer to make a payment that contravenes paragraph (1) is unenforceable.

(4) A trader who contravenes paragraph (1) commits an offence.

(5) In case of dispute, it is for the trader to show that calls to a telephone line operated by the trader for the purpose of permitting consumers to contact the trader about a contract concluded with the trader were not charged at more than the basic rate.

So far, so good.  But then the SI provides a get out for the trader:

(6) For the purposes of this Regulation—

“basic rate” means the rate charged for a call to—

 (a) an Irish geographic number,

 (b) an Irish mobile number, or

 (c) any of the following non-geographic numbers as defined in the National Numbering Conventions:

  (i) Freephone,

  (ii) Shared Cost (Fixed),

  (iii) Shared Cost (Timed),

  (iv) Universal Access,

but, for the avoidance of doubt, excludes the rate charged for a call to a Premium Rate Number as defined in the National Numbering Conventions; …

1800 numbers are free to call from all numbers including mobiles, so clearly the consumer is not bound to pay more than the basic rate, as the Directive states.

However 1850, 1890 and 0818 numbers (respectively known as Shared Cost (Fixed), Shared Cost (Timed), Universal Access in the National Numbering Conventions) are rarely included in call bundles and attract call charges of up to 35c/min depending on the caller’s phone company. They are not defined as Premium Rate services in ComReg’s National Numbering Conventions and it could be that the Department of Jobs, Enterprise and Innovation simply used the logic that anything which is not defined as Premium Rate is basic rate.

However by any reasonable definition, a consumer dialling such a number is bound to pay more than the basic rate.  

Sky high call charges?

So how come the Statutory Instrument has a clause which clearly contradicts the EU Directive?  It could be poor drafting in the Department of Jobs, Enterprise and Innovation.  A Statutory Instrument is signed into power by a Minister and does not go through the Oireachtas so issues might not be picked up.

However, the submissions in response to the consultation exercise by the Department of Jobs, Enterprise and Innovation (DJEI) contain an interesting observation.  15 bodies made submissions, including Sky.  They seem to be the only body whose submission  included a specific response to Article 21:

Article 21 of the CRD states that:

“Member states shall ensure that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate.”

3.2  As the DJEI is aware, the CRD does not define the term “basic rate.” It is therefore open to DJEI to provide guidance on how “basic rate” is to be interpreted.

3.3  While Sky considers that consumers should not be required to dial a premium number to contact a trader, many businesses in Ireland (including Sky) run call centres and they often use “revenue sharing” numbers, where the business and the service provider for the communications service share a portion of the revenue generated from each call. Therefore, Sky would advocate a broad definition of “basic rate” to at least include such calls. Sky urges DJEI to work closely with the Commission for Communications Regulation (“ComReg”) in determining which number ranges could be considered “basic rate” and which would be appropriate for use in the Irish market. This would assist DJEI in arriving at an approach which reflects the practical use of number ranges in Ireland.

3.4  Sky considers that consumers should be able to make calls at a reasonable, non-premium rate and in the absence of an established definition of “basic rate” we suggest it would be appropriate for the DJEI to define it as non-premium rate.

It looks like Sky spotted a possible get-out clause and the Department happily agreed to this in the form of Article 27 (6) (c).

More recently this get out clause seems to have been definitively ruled out by a 2017 judgement of the CJEU (with my emphasis added):

The concept of ‘basic rate’ referred to in Article 21 of Directive 2011/83/EU … must be interpreted as meaning that call charges relating to a contract concluded with a trader to a telephone helpline operated by the trader may not exceed the cost of a call to a standard geographic landline or mobile telephone line. Provided that that limit is respected, the fact that the relevant trader makes or does not make a profit through that telephone helpline is irrelevant.

Meanwhile Sky are still operating a 0818 number at 35 cent/min for customer service.

In my blog piece We’re keen Europeans, except when we don’t want to be I wrote that I usually agree with the saying Never attribute to malice that which is adequately explained by stupidity.   In this case, however, I suspect malice.

I wonder how many GAA tickets Sky sends to the Department of Jobs, Enterprise and Innovation?