The FCA is considering tough action to enforce new rules on unfair financial contracts as a new directive to protect consumers comes into effect.

The regulator is consulting on new guidance for financial services firms outlining factors firms should consider under the Consumer Rights Act 2015 (CRA) when drafting and reviewing ‘variation terms’ in their consumer contracts.

The CRA implements EU Council Directive 93/13/ECC on unfair terms in consumer contracts.  

Under the CRA the FCA has the power to consider the fairness and transparency of terms in consumer contracts.

Where the FCA considers a variation term in a contract to be unfair or lacking in transparency, it has warned it may take action to prevent the firm from relying on that term. A variation term is generally taken to refer to any term in a contract that can be varied by a provider without the explicit permission of the customer.

The FCA says that there has always been a requirement for fairness and transparency in financial contracts under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs) and the preceding Unfair Terms in Consumer Contracts Regulations 1994 (the 1994 Regulations).

The draft guidance provides references to the relevant provisions in the UTCCRs, and sets out its application to contracts entered into under the 1994 Regulations. It is relevant to all consumer contracts issued by firms following the entry into force of the UTCCRs, says the watchdog.   

The draft guidance outlines a number of “non-exhaustive” areas the FCA believes firms should have regard to when drafting and reviewing variation terms. These include:

-      The validity of the reason(s) for varying a term

-      The transparency of the variation term

-      Provision for notice in the variation term

-      Provision for freedom to exit the contract should a consumer not wish to accept the variation

The draft guidance outlines factors for firms to consider when seeking to draft variation terms, and also considers a number of reasons that the FCA has observed firms commonly include, when drafting variation terms allowing them to alter their consumer contracts.

The FCA has published the proposed new draft guidance following the introduction of the CRA and in light of a number of rulings on variation terms in the Court of Justice of the EU. It says so far it has not seen widespread abuse of variation terms but says it will act if any come to light.

The FCA said: ”Our day-to-day unfair terms case work has considered variation terms from a variety of products and does not suggest that variation terms have generally been used in a manner likely to cause widespread harm to consumers.

“Where unfair terms come to the FCA’s attention, and it considers that firms have been relying upon such terms to the detriment of customers, the FCA will challenge firms accordingly.”