Proposal for a Directive of the European Parliament and of the Council on consumer rights - Hoofdinhoud

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Delegations will find in the Annex the Presidency's suggestions regarding Chapters I to III of the

text of the above-mentioned proposal.

The additions with respect to the Commission's proposal are marked in bold, whilst deletions are

marked with strikethrough.

________________________

ANNEX

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on consumer rights

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95

thereof,

1

Having regard to the proposal from the Commission , 2

Having regard to the opinion of the European Economic and Social Committee , 3

Acting in accordance with the procedure laid down in Article 251 of the Treaty , Whereas:

(1) Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of 4

contracts negotiated away from business premises , Council Directive 93/13/EEC of 5 April 5

1993 on unfair terms in consumer contracts , Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance

6

contracts , Directive 1999/44/EC of the European Parliament and of the Council of 25 May 7

1999 on certain aspects of the sale of consumer goods and associated guarantees , lay down a number of contractual rights for consumers.

1

OJ C , , p. . 2

OJ C , , p. . 3

OJ C , , p. . 4

OJ L 372, 31.12.1985, p. 31. 5

OJ L 95, 21.4.1993, p. 29. 6

OJ L 144, 4.6.1997, p. 19. Directive, as last amended by Directive 2007/64/EC (OJ L 319, 5.12.2007, p. 1). 7

OJ L 171, 7.7.1999, p. 12.

(2) Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the

rules. That review has shown that it is appropriate to replace those four Directives by this

single Directive. This Directive should accordingly lay down standard rules for the common

aspects and move away from the minimum harmonisation approach in the former Directives

under which Member States could maintain or adopt stricter national rules.

(3) Article 153(1) and (3)(a) of the Treaty provides that the Community is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to

Article 95 thereof.

(4) In accordance with Article 14(2) of the Treaty, the internal market comprises an area without internal frontiers in which the free movement of goods and services and freedom of

establishment are ensured. The harmonisation of certain aspects of consumer contract law is

necessary for the promotion of a real consumer internal market striking the right balance

between a high level of consumer protection and the competitiveness of enterprises, while

ensuring the respect of the principle of subsidiarity.

(5) The cross-border potential of distance selling which should be one of the main tangible results of the internal market is not fully exploited by consumers. Compared with the significant

growth of domestic distance sales over the last few years, the growth in cross-border distance

sales has been limited. This discrepancy is particularly significant for Internet sales for which

the potential of further growth is high. The cross-border potential of contracts negotiated

away from business premises (direct selling) is constrained by a number of factors including

the different national consumer protection rules imposed upon the industry. Compared with

the growth of domestic direct selling over the last few years, in particular in the services

sector (e.g. utilities), the number of consumers using this channel for cross-border purchases

has remained flat. Responding to increased business opportunities in many Member States,

small and medium size enterprises (including individual entrepreneurs) or agents of direct

selling companies should be more inclined to seek business opportunities in other Member

States, in particular in border regions. Therefore the full harmonisation of consumer

information and the right of withdrawal in distance and off-premises contracts will contribute

to the better functioning of the business to consumer internal market.

(6) The laws of the Member States on consumer contracts show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the

internal market. The existing Community legislation in the field of consumer contracts

,

concluded at a distance or away from business premises consumer goods and guarantees as well as unfair contract terms establishes minimum standards for harmonising legislation

allowing the Member States the possibility to maintain or introduce more stringent measures

which ensure a higher level of consumer protection in their territories. Furthermore, many

issues are regulated inconsistently between directives or have been left open. These issues

have been addressed differently by the Member States. As a result, the national provisions

implementing directives on consumer contract law diverge significantly.

(7) These disparities create significant internal market barriers affecting business and consumers. They increase compliance costs to business wishing to engage in cross border sale of goods or

provision of services. Fragmentation also undermines consumer confidence in the internal

market. The negative effect on consumer confidence is strengthened by an uneven level of

consumer protection across the Community. This problem is particularly acute in the light of

new market developments.

(8) Full harmonisation of some key regulatory aspects will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single

regulatory framework based on clearly defined legal concepts regulating certain aspects of

business-to-consumer contracts across the Community. The effect will be to eliminate the

barriers stemming from the fragmentation of the rules and to complete the internal market in

this area. These barriers can only be eliminated by establishing uniform rules at Community

level. Furthermore consumers will enjoy a high common level of protection across the

Community.

(9) The field harmonised by this Directive should cover certain aspects of business to consumer contracts for the sale of tangible movable goods or the provision of services. These are

The regulated aspects include rules on information to be provided before conclusion and

during performance of the contract, the right of withdrawal for distance and off-premises

contracts, consumer rights specific to contracts of sale and unfair contract terms in consumer

contracts.

(9a) This Directive should be without prejudice to the application by Member States, in

accordance with Community law, of the provisions of this Directive to areas not within

its scope.

(10) The provisions of this Directive should be without prejudice to Regulation (EC) No 593/2008

of the European Parliament and of the Council applicable to contractual obligations

8

(Rome I) .

(11) The existing Community legislation on consumer financial and transport services contains

numerous rules on consumer protection. For this reason the provisions of this Directive cover

contracts relating to financial and transport services only insofar as this is necessary to fill

the regulatory gaps.

(12) The new definition of distance contract should cover all cases where sales and service

contracts are concluded using exclusively one or more means of distance communication

(such as mail order, Internet, telephone or fax). This should create a level playing field for all

distance traders. It should also improve legal certainty as compared to the current definition

requiring the presence of an organised distance selling scheme run by the trader up to the

conclusion of the contract.

(13) The particular circumstances under which an offer was made or the contract was negotiated

should not be relevant in the definition of a distance contract. The fact that the trader is an

occasional distance seller or that he uses an organised scheme run by a third party such as an

online platform, should not deprive consumers of their protection. Similarly, a transaction

negotiated face to face between the trader and the consumer away from business premises

should be a distance contract, if the contract has then been concluded through the exclusive

use of means of distance communication, such as the Internet or telephone. For traders, a

simpler definition of a distance contract should improve legal certainty and protect them from

unfair competition.

8

OJ L 177, 4.7.2008, p. 6.

(14) An off-premises contract should be defined as a contract concluded with the simultaneous

physical presence of the trader and the consumer, away from business premises, for example

at the consumer's home or workplace. In an off-premises context, consumers are under

potential psychological pressure or may be confronted with an element of surprise, no

matter whether they have solicited the trader's visit or not. An off-premises contract should

be defined as a contract concluded with the simultaneous physical presence of the trader

and the consumer, away from business premises, for example at the consumer's home or

workplace. Furthermore, In order to prevent circumventions of the rules when consumers are approached away from business premises, a contract negotiated at the consumer's home but

concluded in a shop should be regarded as an off-premises contract, the definition of an off-

premises contract should include the contract for which an offer is made away from

business premises, but the contract is subsequently concluded in the business premises

of the trader.

(15) Business premises should include premises in whatever form (such as shops or lorries) which

serve as a permanent place of business for the trader. Market stalls and fair stands should be

treated as business premises even though they may be used by the trader on a temporary basis.

Other premises which are rented for a short time only and where the trader is not established

(such as hotels, restaurants, conference centres, cinemas rented by traders who are not

established there) should not be regarded as business premises. Similarly, all public spaces

including public transport or facilities as well as private homes or workplaces should not be

regarded as business premises.

(16) The definition of durable medium should include in particular documents on paper, USB

sticks, CD-ROMs, DVDs, memory cards and the hard drive of the computer on which the

electronic mail or a pdf file is stored.

(17) Consumers should be entitled to receive information before the conclusion of the contract.

However traders should not have to only provide the relevant information when it is not

already apparent from the context. For example in an on-premises transaction, the main

characteristics of a product good or service, the identity of the trader and the arrangements

for delivery may be apparent from the context. In distance and off-premises transactions, the

trader should always provide the information on arrangements for payment, delivery,

performance and the complaint handling policy, since these might not be apparent from the

context.

(17a) Information requirements should be fully harmonised in order to improve the

functioning of the internal market. However, for specific contracts related to immovable

property, the Member States should not be prevented from adding specific information

requirements.

(18) Traders should be obliged to inform consumers in advance of any arrangement resulting in the

consumers paying a deposit to the trader, including an arrangement whereby an amount is

blocked on the consumers' credit or debit card.

[The following options are presented for Recital 19 concerning auctions. See also related

proposals for the definition of auction in paragraphs 15 and 16 of Article 2 and Article 5(2)]

OPTION A:

(19) In the case of public auctions, due to the nature and tradition of that sales method, the

auctioneer may instead of communicating the geographical address and the identity of the

seller for whom he is selling the goods replace that with his own contact details.

OPTION B:

(19) In the case of public auctions, due to the nature and tradition of that sales method, the

auctioneer third party running the competitive bidding may instead of communicating the

geographical address and the identity of the seller for whom he is selling the goods replace

that with his own contact details.

[The following options are presented for Recital 20 concerning intermediaries. See also related

proposals in Article 2(19), Article 5, Article 6 and deletion of Article 7 for option B]

OPTION A

(20) The consumer should know whether he is contracting with the trader or with an intermediary

acting on behalf of another consumer, since in the latter case the consumer may not enjoy the

protection under this Directive. Therefore the intermediary trader should inform the

consumer of this fact and the consequences thereof. The notion of intermediary should not

include online trading platforms which do not conclude the contract in the name of or on

behalf of any other party. This information requirement should not have any impact on

the performance of the contract between the trader and the consumer on whose behalf

the trader is acting and to which this Directive should apply.

OPTION B

(20) The consumer should know whether he is contracting with the trader or with an intermediary

acting on behalf of another consumer, since in the latter case the consumer may not enjoy the

protection under this Directive. Therefore the intermediary should inform of this fact and the

consequences thereof. The notion of intermediary should not include online trading platforms

which do not conclude the contract in the name of or on behalf of any other party.

(21) In the case of distance contracts, the information requirements should be adapted to take into

account the technical constraints of certain media, such as the restrictions of the number of

characters on certain mobile telephone screens or the time constraint on television sales spots.

In this case the trader should comply with a minimum set of information requirements and

refer the consumer to another source of information, for instance by providing a toll free

telephone number or a hypertext link to a webpage of the trader where the relevant

information is directly available and easily accessible.

(22) Since in the case of distance sales, the consumer is not able to see the good before concluding

the contract he should have a right of withdrawal, which allows him to ascertain the nature

and functioning of the goods. Concerning off-premises contracts, the consumer should

have the right of withdrawal due to the potential surprise element and/or psychological

pressure in off-premises transactions.

(23) The current varying lengths of the withdrawal periods both between the Member States and

for distance and off-premises contracts cause legal uncertainty and compliance costs. The

same withdrawal period should apply to all distance and off-premises contracts.

(24) To ensure legal certainty, it is appropriate that Council Regulation (EEC, Euratom) No

9

1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits should apply to the calculation of the periods contained in this Directive. Therefore, all

periods contained in this Directive should be understood to be expressed in calendar days.

(25) The rules on distance contracts should be without prejudice to the provisions on the

conclusion of e-contracts and the placing of e-orders as set out by Articles 9 and 11 of

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on

certain legal aspects of information society services, in particular electronic commerce, in the

10

Internal Market (Directive on electronic commerce) .

9 OJ L 124, 8.6.1971, p. 1. 10

OJ L 178, 17.7.2000, p. 1.

(26) When the consumer orders more than one good from the same trader, he should be entitled to

exercise the right of withdrawal in respect of each of these goods. If the goods are delivered

separately, the withdrawal period should start when the consumer acquires the material

possession of each individual good. Where a good is delivered in different lots or pieces, the

withdrawal period should start when the consumer or a third party indicated by the consumer

acquires the material possession of the last lot or piece.

(27) If the trader has not informed the consumer on the right of withdrawal prior to the conclusion

of a distance or off-premises contract, the withdrawal period should be extended. However, in

order to ensure legal certainty over time, a three-month limitation period should be

introduced, provided that the trader has fully performed his contractual obligations. The trader

should be regarded as having fully performed his obligations when he has delivered the goods

or has fully provided the services ordered by the consumer.

(28) Differences in the ways in which the right of withdrawal is exercised in the Member States

have caused costs for businesses selling cross-border. The introduction of a harmonised

standard withdrawal form to be used by that the consumer may use should simplify the

withdrawal process and bring legal certainty. For these reasons, Member States should refrain

from adding any presentational requirements to the Community-wide standard form relating

for example to the font size. However, the consumer should remain free to withdraw

while using his own words, as long as his statement is explicit and provided on a durable

medium or in an electronic mail.

(29) As experience shows that many consumers and traders prefer to communicate via the trader's

website, there should be a possibility for the trader to give the consumer the option of filling

in a web-based withdrawal form. In this case the trader should provide an acknowledgement

of receipt by email without delay.

(30) In case of withdrawal the trader should reimburse all payments received from the consumer,

including those covering the expenses born by the trader to deliver goods to the consumer.

(31) Some consumers exercise their right of withdrawal after having used the goods to an extent

more than necessary to ascertain the nature and functioning of the good. In this case the

consumer should not lose the right to withdraw but should be liable for any diminished

value of the goods. In order to ascertain the nature and functioning of a good, the consumer

should only handle or try it in the same manner as he would be allowed to do in a shop. For

example, the consumer should only try on a garment and should not be allowed to wear it. In

order to ensure the effectiveness of the withdrawal right in service contracts, in particular for

non-urgent renovation works for which consumers may be subject to high pressure selling at

their homes followed by the immediate performance of the service before the expiration of the

withdrawal period, consumers should bear no cost for such a service.

(32) In order to avoid the trader reimbursing a consumer who has not returned the goods, the

consumer should be required to send back the goods no later than fourteen days after having

informed the trader about his decision to withdraw. In situations where the trader or the

consumer does not fulfil the obligations connected with the exercise of the right of

withdrawal, penalties provided for by national legislation in accordance with Article 42

should apply as well as general contract law provisions.

(33) Certain exemptions should exist from the right of withdrawal, both for distance and off-

premises contracts. Concerning distance contracts, such as in cases where a right of withdrawal would could be inappropriate given the nature of a product a good or a service.

That is applicable for example to wine supplied a long time after the conclusion of the

contract of a speculative nature where the value is dependent on fluctuations in the market

("vin en primeur").

(33a) The application of a right of withdrawal could be also inappropriate for certain services

concluded at a distance relating to accommodation and leisure. The conclusion of the

corresponding contracts implies the setting aside of capacity which, if a right of

withdrawal was introduced, the trader may find difficult to fill.

(33b) In order to ensure the effectiveness of the right of withdrawal in service contracts,

consumers should bear no cost for services performed during the withdrawal period.

However, in case of distance contracts, if the consumer gives his express consent for the

performance of the service (e.g. data files downloaded by the consumer during that

period) to begin before the end of the withdrawal period, it would be unfair to allow the

consumer to withdraw after the service has been enjoyed by the consumer in full or in

part. Consequently, he should lose his right to withdraw but he must be informed

thereof accordingly in advance.

(34) Furthermore, in case of distance contracts for the provision of services, for which the

performance begins during the withdrawal period (e.g. data files downloaded by the consumer

during that period), it would be unfair to allow the consumer to withdraw after the service has

been enjoyed by the consumer in full or in part. Therefore the consumer should lose his right

of withdrawal when performance begins with his prior express agreement.

(35) The Commission has found some key consumer problems in the home improvement sector

where consumers are under high pressure to order expensive renovation works. The scope of

the information and withdrawal rules should be clarified and extended in order to cover this

kind of contract. Only contracts for the conveyance of interests in real property should be

excluded from the scope of the rules on information and withdrawal rights applicable to

distance and off-premises contracts.

(36) The application of a right of withdrawal may be inappropriate for certain services relating to

accommodation, transport and leisure. The conclusion of the corresponding contracts implies

the setting aside of capacity which, if a right of withdrawal was introduced, the trader may

find difficult to fill. Therefore these distance contracts should not be covered by the

provisions on consumer information and the right of withdrawal.

(37) For the purpose of simplification and legal certainty, the right of withdrawal should apply to

all types of off-premises contracts, except under strictly defined circumstances which can

easily be proved. Therefore, no right of withdrawal should apply for Similarly, there are

situations in case of off-premises contracts where the consumer should have no right of

withdrawal, such as urgent repairs at the consumer's home for which such a right of

withdrawal would be incompatible with the emergency situation as well as for supermarket

home-delivery schemes which allow consumers to select food, drinks and other goods

intended for current consumption in the household through the supermarket's website and

have them delivered at their home. These are goods, which are inexpensive and bought

regularly by consumers for their every day's consumption or everyday use in the household

and should therefore not be subject to a right of withdrawal.

(37a) The main difficulties encountered by consumers and the main source of disputes with traders

are about delivery of goods, including goods getting lost or damaged during transport and late

and partial delivery. Therefore it is appropriate to clarify and harmonise the national rules on

delivery and passing of risk.

...

HAVE ADOPTED THIS DIRECTIVE:

Chapter I

Subject matter, definitions and scope

Article 1

Subject matter

The purpose of this Directive is to contribute to the proper functioning of the internal market and

achieve a high level of consumer protection by approximating certain aspects of the laws,

regulations and administrative provisions of the Member States concerning contracts between

consumers and traders.

Article 2

Definitions

For the purpose of this Directive, the following definitions shall apply:

(1) 'consumer' means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;

(2) 'trader' means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name

of or on behalf of a trader;

(3) 'sales contract' means any contract for the sale of goods by the trader to the consumer including any mixed-purpose contract having as its object both goods and services involving

the transfer of ownership of goods, including goods to be manufactured, as well as any

contract involving a service element regarding some or all of the relevant goods under

the contract;

(4) 'goods' means any tangible movable item, with the exception of:

(a) goods sold by way of execution or otherwise by authority of law,

(b) water and gas where they are not put up for sale in a limited volume or set quantity,

(c) electricity;

(5) 'service contract' means any contract other than a sales contract whereby a service is provided by the trader to the consumer, as well as any contract for the provision of electricity or of

water and gas where they are not put up for sale in a limited volume or set quantity;

(6) 'distance contract' means any sales or service contract where the trader, for the conclusion of the contract, makes concluded with the exclusive use of one or more means of distance

communication;

(7) 'means of distance communication' means any means which, without the simultaneous physical presence of the trader and the consumer, may be used for the conclusion of a contract

between those parties;

(8) 'off-premises contract' means:

(a) any sales or service contract concluded away from business premises with the simultaneous physical presence of the trader and the consumer or any sales or service

contract for which an offer was made by the consumer in the same circumstances, or

(b) any sales or service contract, other than a distance contract, in respect of which an offer is made away from business premises with the simultaneous physical presence of

the trader and the consumer, whether or not the offer is binding before its acceptance

by the other party

(9) 'business premises' means:

(a) any immovable or movable retail premises, including seasonal retail premises, where the trader carries on his activity on a permanent basis, or

(b) market stalls and fair stands where the trader carries on his activity on a regular or temporary basis;

(10) 'durable medium' means any instrument which enables the consumer or the trader 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;

(11) 'order form' means an instrument setting out the contract terms, to be signed by the consumer

with a view to concluding an off-premises contract;

(12) 'product' means any good or service including immoveable property, rights and obligations;

(13) 'financial service' means any service of a banking, credit, insurance, personal pension,

investment or payment nature;

(14) 'professional diligence' means the standard of special skill and care which a trader may

reasonably be expected to exercise towards consumers, commensurate with honest market

practice and/or the general principle of good faith in the trader's field of activity;

[The following options are presented for Article 2(15) and 2(16). See also Recital 19 and

Article 5(2)]

OPTION A

(15) 'auction' means a method of sale where goods or services are offered by the trader through a

competitive bidding procedure which may include the use of means of distance

communication and where the highest best bidder is bound to purchase the goods or the

services. A transaction concluded on the basis of a fixed-price offer, despite the option given

to the consumer to conclude it through a bidding procedure is not an auction;

(16) 'public auction' means a method of sale where goods are offered by the trader to consumers,

who attend or are given the possibility to attend the auction in person, through a competitive

bidding procedure run by an auctioneer and where the highest best bidder is bound to

purchase the goods;

OPTION B

(15) 'auction' means any method of sale whereby several consumers are enabled to compete for

the purchase of goods or services offered by a trader, whether by way of increasing bids

or by bidding at successively decreasing prices, and where

(i) the competitive bidding is run by a third party who, for a fee, assists the trader and the consumer in concluding and performing the sales or service contract,

(ii) any interested consumer is enabled to bid by any means accepted by the third

party running the competitive bidding, including means of distance

communication, and

(iii) the trader and the best bidder are bound by the sales or service contract at the end

of the competitive bidding, unless the minimum price set in advance by the trader

is not met.

A transaction concluded on the basis of a fixed-price offer, despite the option given to the

consumer to conclude it through a bidding procedure is not an auction;

(16) 'public auction' means a method of sale where goods are offered by the trader to consumers,

who attend or are given the possibility to attend the auction in person, through a competitive

bidding procedure run by an auctioneer and where the highest best bidder is bound to

purchase the goods;

(17) 'producer' means the manufacturer of goods, the importer of goods into the territory of the

Community or any person purporting to be a producer by placing his name, trade mark or

other distinctive sign on the goods;

(18) 'commercial guarantee' means any undertaking by the trader or producer (the 'guarantor') to

the consumer to reimburse the price paid or to replace, repair or service goods in any way if

they do not meet the specifications set out in the guarantee statement or in the relevant

advertising available at the time of, or before the conclusion of the contract;

(19) 'intermediary' means a trader who concludes the contract in the name of or on behalf of the

consumer;

(20) 'ancillary contract' means a contract by which the consumer acquires goods or services related

to a distance contract or an off-premises contract and these goods or services are provided by

the trader or a third party on the basis of an arrangement between that third party and the

trader;

(21) 'delivery' means the transfer of the material possession of goods from the trader to the

consumer or to a third party indicated by the consumer, other than the carrier arranged

by the trader.

Article 3

Scope

• 1. 

  This Directive shall apply, under the conditions and to the extent set out in its provisions, to sales and service contracts concluded between the trader and the consumer.
• 2. 

  This Directive shall only apply to financial services as regards certain off-premises contracts as provided for by Articles 8 to 20, unfair contract terms as provided for by Articles 30 to 39

and general provisions as provided for by Articles 40 to 46, read in conjunction with Article 4

on full harmonisation. Only chapters I, V and VI shall apply to financial services.

Chapter III shall apply only to certain off-premises contracts for financial services,

which are not excluded in accordance with Article 8(3).

2a. Only chapters I, V and VI shall apply to transport services.

• 3. 

  Only chapters I, V and VI Articles 30 to 39 on consumer rights concerning unfair contract terms, read in conjunction with Article 4 on full harmonisation, shall apply to contracts which

fall within the scope of Directive 94/47/EC 2008/122/EC of the European Parliament and of

the Council of 14 January 2009 on the protection of consumers in respect of certain

11

aspects of timeshare, long-term holiday product, resale and exchange contracts .

3a. Only chapters I, III, V and VI shall apply to contracts which fall within the scope and of

Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and

12

package tours .

11

OJ L 33, 3.2.2009, p. 10.

12 OJ L 158, 23.6.1990, p. 59.

• 4. 

  Articles 5, 7, 9 and 11 This Directive shall be without prejudice to provisions concerning information requirements contained in other Community legislation, in particular in

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006

13

on services in the internal market and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services,

in particular electronic commerce, in the Internal Market (Directive on electronic

14

commerce) .

• 5. 

  This Directive shall be without prejudice to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to

15

contractual obligations (Rome I) and to Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal

data and the protection of privacy in the electronic communications sector (Directive on

16

privacy and electronic communications) .

Article 4

Full harmonisation

Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a

different level of consumer protection unless otherwise provided in this Directive.

13

OJ L 376, 27.12.2006, p. 36. 14

OJ L 178, 17.7.2000, p. 1.

15 OJ L 177, 4.7.2008, p. 6. 16

OJ L 201, 31.7.2002

Chapter II

Consumer information

Article 5

General information requirements

• 1. 

  Prior to the conclusion of any sales or service contract covered by this Directive, the trader shall provide the consumer with the following information, if not already apparent from the

context:

(a) the main characteristics of the product goods or service, to an extent appropriate to the medium and the product goods or service;

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose

behalf he is acting;

(c) the price inclusive of taxes, or where the nature of the product goods or service means that the price cannot reasonably be calculated in advance, the manner in which the price

is calculated, as well as, where appropriate, all additional freight, delivery or postal

charges or, where these charges cannot reasonably be calculated in advance, the fact

that such additional charges may be payable;

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;

(e) the existence of a right of withdrawal, where applicable;

(f) the existence and the conditions of after-sales services and commercial guarantees, where applicable;

(g) the duration of the contract where applicable or if the contract is open-ended, the conditions for terminating the contract;

(h) the minimum duration of the consumer's obligations under the contract, where applicable;

(i) the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader, where applicable.

[The following options are presented in relation to "intermediaries". See also recital 20,

Article 2(19), Article 6 and deletion of Article 7]

OPTION A

1a. If the trader concludes a contract in the name of or on behalf of the consumer, prior to

the conclusion of the contract he shall inform a consumer thereof as well as of the fact

that the contract falls outside the scope of this Directive.

OPTION B

[ o provision]

[The following options are presented for Article 5(2). See also recital 19 and Article 2(15) and

(16)]

OPTION A

• 2. 

  In the case of a public auction, the information in paragraph 1(b) may be replaced by the geographical address and the identity of the auctioneer.

OPTION B

• 2. 

  In the case of a public an auction, the information in paragraph 1(b) may be replaced by the geographical address and the identity of the auctioneer.
• 3. 

  The information referred to in paragraph 1 shall form an integral part of the sales or service contract.
• 4. 

  In case of contracts relating to immovable property including construction contracts, lease contracts and real estate agency contracts, the general information requirements

provided for in this Article shall not be subject to Article 4.

Article 6

Failure to provide information

• 1. 

  If the trader has not complied with the information requirements on additional charges as referred to in Article 5(1)(c), the consumer shall not pay these additional charges.

[The following options are presented in relation to "intermediaries"]

OPTION A

1a. If the trader does not fulfil the obligation as referred to in Article 5(1a), he shall be

deemed to have concluded the contract in his own name.

OPTION B

[ o provision]

• 2. 

  Without prejudice to Articles 7(2), 6(1), 6(1a) [no reference to Article 6(1a) is needed for option B], 13 and 42, the consequences of any breach of Article 5, shall be determined in

accordance with the applicable national law. Member States shall provide in their national

laws for effective contract law remedies for any breach of Article 5 Member States shall

provide in their national laws for effective contract law remedies for any breach of

Articles 5 and 9.

Article 7

Specific information requirements for intermediaries

• 1. 

  Prior to the conclusion of the contract, the intermediary shall disclose to the consumer, that he is acting in the name of or on behalf of another consumer and that the contract concluded,

shall not be regarded as a contract between the consumer and the trader but rather as a

contract between two consumers and as such falling outside the scope of this Directive.

• 2. 

  The intermediary, who does not fulfil the obligation under paragraph 1, shall be deemed to have concluded the contract in his own name.
• 3. 

  This Article shall not apply to public auctions.

Chapter III

Consumer information and withdrawal right for distance and off-premises contracts

Article 8

Scope

• 1. 

  This Chapter shall apply to distance and off-premises contracts.
• 2. 

  This Chapter shall not apply to distance contracts:

(a) concluded by means of automatic vending machines or automated commercial premises;

(b) concluded with telecommunications operators through public payphones for their

use;

(c) for the supply of foodstuffs, beverages or other goods intended for current consumption in the household by a trader on frequent and regular rounds in the

neighbourhood of his business premises.

• 3. 

  This Chapter shall not apply to off-premises contracts relating to:

(a) life-assurance which falls within the scope of Directive 2002/83/ECof 5 November 17

2002 concerning life assurance ;

(b) financial services whose price depends on fluctuations in the financial market

outside the trader's control, which may occur during the withdrawal period, as

defined in Article 6(2)(a) of 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

18

Directives 97/7/EC and 98/27/EC ;

17 OJ L 345, 19.12.2002, p. 1­51 18

OJ L 271, 09.10.2002, p. 16.

(c) credit which falls within the scope of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for

19

consumers and repealing Council Directive 87/102/EEC ; (d) the supply of foodstuffs, beverages or other goods intended for current

consumption in the household by a trader on frequent and regular rounds in the

neighbourhood of his business premises.

Article 9

Information requirements for distance and off-premises contracts

• 1. 

  As regards distance or off-premises contracts, the trader shall provide the consumer the following information which shall form an integral part of the contract:

(a) the information referred to in Articles 5 and 7 and, by way of derogation from Article 5(1)(d), the arrangements for payment, delivery and performance in all cases;

(b) where a right of withdrawal applies, the conditions and procedures for exercising that right in accordance with Annex I;

(ba) where applicable, the information that, by giving his prior express consent to the

trader to begin the performance of a distance service contract in accordance with

Article 19(1)(a), the consumer may not use his right of withdrawal;

(bb) where a right of withdrawal does not apply in accordance with Articles 19(1)(b) to

(h) or 19(2), the information that the consumer will not benefit from a right of

withdrawal;

(c) if different from his geographical address, the geographical address of the place of business of the trader (and where applicable that of the trader on whose behalf he is

acting) where the consumer can address any complaints;

19

OJ L 133, 22.5.2008, p. 66­92

(d) the existence of codes of conduct and how they can be obtained, where applicable;

(e) the possibility of having recourse to an amicable dispute settlement for out-of-court dispute resolution, where applicable.

(f) that the contract will be concluded with a trader and as a result that the consumer will benefit from the protection afforded by this Directive.

• 2. 

  In case of financial services which fall within the scope of this Chapter, the information requirements under paragraph 1 shall not be subject to Article 4.

Article 10

Formal requirements for off-premises contracts

• 1. 

  With respect to off-premises contracts, the information provided for in Article 9 shall be given in the order form in plain and intelligible language and be legible. The order form shall

include the standard withdrawal form set out in Annex I(B).

In case of off-premises contract, the information according to Article 9 shall be provided on a durable medium or in an electronic mail prior to the conclusion of the contract as

referred to in Article 2(8)(a) or prior to any offer as referred to in Article 2(8)(b). This

information shall be in plain and intelligible language and be legible.

• 2. 

  An off-premises contract shall only be valid if the consumer signs an order form and in cases where the order form is not on paper, receives a copy of the order form on another durable

medium.

• 3. 

  Member States shall not impose any formal requirements other than those provided for in paragraphs 1 and 2.

Article 11

Formal requirements for distance contracts

• 1. 

  With respect to distance contracts, the information provided for in Article 9(a) shall be given or made available to the consumer prior to the conclusion of the contract, in plain and

intelligible language and be legible, in a way appropriate to the means of distance

communication used.

• 2. 

  If the trader makes a telephone call to the consumer with a view to concluding a distance contract, he shall disclose his identity and the commercial purpose of the call at the beginning

of the conversation with the consumer.

• 3. 

  If the contract is concluded through a medium which allows limited space or time to display the information, the trader shall provide at least the information regarding the main

characteristics of the product goods or service and the total price referred to in Articles

5(1)(a) and (c) on that particular medium prior to the conclusion of such a contract. The other

information referred to in Articles 5 and 7 shall be provided by the trader to the consumer in

an appropriate way in accordance with paragraph 1.

• 4. 

  The consumer shall receive confirmation of all the information referred to in Article 9(a) to (f), on a durable medium or in an electronic mail, in reasonable time after the conclusion of

any distance contract, and at the latest at the time of the delivery of the goods or when the

performance of the service has begun, unless the information has already been given to the

consumer prior to the conclusion of any distance contract on a durable medium or in an

electronic mail.

• 5. 

  Member States shall not impose any formal requirements other than those provided for in paragraphs 1 to 4.

Article 12

Length and starting point of the withdrawal period

• 1. 

  The consumer shall have a period of fourteen days to withdraw from a distance or off premises contract, without giving any reason.

[The following options are presented for Article 12(2)]

OPTION A

• 2. 

  In the case of an off-premises contract, the withdrawal period shall begin from the day when the consumer signs the order form or in cases where the order form is not on paper, when the

consumer receives a copy of the order form the information in accordance with Article 10

on another a durable medium or in an electronic mail.

In the case of a distance contract for the sale of goods, the withdrawal period shall begin from the day on which the consumer or a third party other than the carrier and indicated by the

consumer acquires the material possession of delivery of each of the goods ordered.

In the case of a distance contract for the provision of services, the withdrawal period shall begin from the day of the conclusion of the contract.

OPTION B

• 2. 

  In the case of an off-premises and a distance contract for the sale of goods, the withdrawal period shall begin from the day of delivery.

If the goods are delivered separately, the withdrawal period should start when each individual good is delivered. Where a good is delivered in different lots or pieces, the

withdrawal period should start when the last lot or piece is delivered.

In the case of an off-premises and a distance contract for the provision of services, the withdrawal period shall begin from the day of the conclusion of the contract.

[The Presidency would like to draw the Member States' attention to the fact that this Option B

will have implications on the wording of some other Articles, especially Articles 15 and 17.

All the aspects should be discussed, subject to the selected option.]

• 3. 

  The deadline referred to in paragraph 1 is met if the communication concerning the exercise of the right of withdrawal is sent by the consumer before the end of that deadline.
• 4. 

  The Member States shall not prohibit the parties from performing their obligations under the contract during the withdrawal period.

Article 13

Omission of information on the right of withdrawal

[The following options are presented for Article 13(1) and (2)]

OPTION A

• 1. 

  If the trader has not provided the consumer with the information on the right of withdrawal in breach of Articles 9(b), 10(1) and 11(4), the withdrawal period shall expire three months after

the trader has fully performed his other contractual obligations.

• 2. 

  If the trader has not provided the consumer with other information in accordance with this Directive, the consequences of such a failure shall be governed by national law as

provided for in Article 6(2).

OPTION B

• 1. 

  If the trader has not provided the consumer with the information on the right of withdrawal in breach of Articles 9(b), 10(1) and 11(4), the withdrawal period shall expire after three months

after the trader has fully performed his other contractual obligations and 14 days from the

day referred to in Article 12(2).

• 2. 

  If the trader has provided the consumer with the information on the right of withdrawal within 3 months from the day referred to in paragraph Article 12(2), the withdrawal

period shall start from the day the consumer receives the information.

• 3. 

  If the trader has not provided the consumer with other information in accordance with this Directive, the consequences of such a failure shall be governed by national law as

provided for in Article 6(2).

Article 14

Exercise of the right of withdrawal

• 1. 

  The consumer shall inform notify the trader of his decision to withdraw on a durable medium either in a statement addressed to the trader drafted in his own words or using or in an

electronic mail at the address indicated by the trader in accordance with Annex I(A)

before the expiry of the withdrawal period. The consumer may use the standard

withdrawal form as set out in Annex I(B) or any other explicit statement addressed to the

trader.

Member States shall not provide for any other formal requirements applicable to this standard withdrawal form.

1a. The deadline referred to in Article 12(1) and 13 is met if the notification concerning the

exercise of the right of withdrawal is sent by the consumer before the end of that

deadline.

• 2. 

  For distance contracts concluded on the Internet, t The trader may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer to electronically fill in

and submit the standard withdrawal form on the trader's website. In that case the trader shall

communicate to the consumer an acknowledgement of receipt of such a withdrawal by email

without delay.

Article 15

Effects of withdrawal

The exercise of the right of withdrawal shall terminate the obligations of the parties:

(a) to perform the distance or off-premises contract, or

(b) to conclude an off-premises contract, in cases where an offer was made by the consumer.

Article 16

Obligations of the trader in case of withdrawal

• 1. 

  The trader shall reimburse any payment all payments received from the consumer within without any undue delay and no later than thirty days from the day on which he receives

the notification of withdrawal.

• 2. 

  For sales contracts, the trader may withhold the reimbursement until he has received or collected the goods back, or the consumer has supplied evidence of having sent back the

goods, whichever is the earliest.

Article 17

Obligations of the consumer in case of withdrawal

• 1. 

  For sales contracts for which the material possession of the goods has have been transferred to the consumer or at his request, to a third party delivered before the expiration of the

withdrawal period, the consumer shall send back the goods or hand them over to the trader or

to a person authorised by the trader to receive them, within without any undue delay and no

later than fourteen days from the day on which he communicates notifies the trader of his withdrawal to the trader, unless the trader has offered to collect the goods himself. The

deadline is met if the goods are sent back by the consumer before the end of that

deadline.

The consumer shall only be charged for the direct cost of returning the goods unless the trader has agreed to bear that cost.

• 2. 

  The consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertain the nature and functioning of the goods. He

shall not be liable for diminished value where the trader has failed to provide notice of the

withdrawal right in accordance with Article 9(1)(b).

• 3. 

  For service contracts subject to a right of withdrawal, the consumer shall bear no cost for services performed, in full or in part, during the withdrawal period.

Article 18

Effects of the exercise of the right of withdrawal on ancillary contracts

• 1. 

  Without prejudice to Article 15 of Directive 2008/48/EC, if the consumer exercises his right of withdrawal from a distance or an off-premises contract in accordance with Articles 12 to

17, any ancillary contracts shall be automatically terminated, without any costs for the

consumer.

• 2. 

  The Member States shall lay down detailed rules on the termination of such contracts.

Article 19

Exceptions from the right of withdrawal

• 1. 

  In respect of distance contracts, the right of withdrawal shall not apply as regards the following:

(a) services where performance has begun, with the consumer's prior express consent, before the end of the fourteen day withdrawal period referred to in Article 12;

(b) the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader;

(c) the supply of goods made to the consumer's specifications or clearly personalized or; (ca) the supply of goods which are liable to deteriorate or expire rapidly;

(d) the supply of wine, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place beyond the

time-limit referred to in Article 22(1) and the actual value of which is dependent on

fluctuations in the market ("vin en primeur") which cannot be controlled by the trader;

(e) the supply of sealed audio or video recordings or computer software which were unsealed by the consumer;

(f) the unit supply of a newspaper, periodicals and or magazines excluding any form of subscription;

(g) gaming and lottery services;

(h) contracts concluded at an auction;

(i) the provision of accommodation, car rental services or a package travel as defined in Article 2(1) of Council Directive 90/314/EEC, catering or leisure services if the

contract provides for a specific date or period of performance.

• 2. 

  In respect of off-premises contracts, the right of withdrawal shall not apply as regards the following:

(a) contracts for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, selected in advance by the consumer by means of

distance communication and physically supplied delivered to the consumer's home,

residence or workplace by the trader who usually sells such goods on his own business

premises;

(b) contracts for which the consumer, in order to respond to an immediate emergency, has requested the immediate performance of the contract by the trader; if, on this occasion,

the trader provides or sells additional services or goods other than those which are

strictly necessary to meet the immediate emergency of the consumer, the right of

withdrawal shall apply to those additional services or goods;

(c) contracts for which the consumer has specifically requested the trader, by means of distance communication, to visit his home for the purpose of repairing or performing

maintenance upon his property; if on this occasion, the trader provides services in

addition to those specifically requested by the consumer or goods other than

replacement parts necessarily used in performing the maintenance or in making the

repairs, the right of withdrawal shall apply to those additional services or goods

contracts for the unit supply of a newspaper, periodical or magazine excluding any

form of subscription.

• 3. 

  The parties may agree not to apply paragraphs 1 and 2.

Article 20

Excluded distance and off-premises contracts

• 1. 

  Articles 8 to 19 shall not apply to distance and off-premises contracts:

(a) for the sale of immovable property or relating to other immovable property rights, except for rental and works relating to immovable property;

(b) concluded by means of automatic vending machines or automated commercial premises;

(c) concluded with telecommunications operators through public payphones for their use;

(d) for the supply of foodstuffs or beverages by a trader on frequent and regular rounds in the neighbourhood of his business premises.

• 2. 

  Articles 8 to 19 shall not apply to off-premises contracts relating to: (a) insurance,

(b) financial services whose price depends on fluctuations in the financial market outside the trader's control, which may occur during the withdrawal period, as defined in Article

20

6(2)(a) of Directive 2002/65/EC and

(c) credit which falls within the scope of Directive 2008/48/EC.

• 3. 

  Articles 8 to 19 shall not apply to distance contracts for the provision of accommodation, transport, car rental services, catering or leisure services as regards contracts providing for a

specific date or period of performance.

...

20

OJ L 271, 09.10.2002, p. 16.

Annex I

INFORMATION CONCERNING THE EXERCISE OF THE RIGHT OF WITHDRAWAL

A. Information notice to be provided with the withdrawal form

• 1. 

  The name, geographical address and the email address of the trader to whom the withdrawal form must be sent.
• 2. 

  A statement that the consumer has a right to withdraw from the contract and that this right can be exercised by sending a notification either in the withdrawal form set out

in Part B or as an explicit statement on a durable medium or in an electronic mail to

the trader referred to in paragraph 1:

(a) for off-premises contracts, within a period of fourteen days following his signature of the order form;

(b) for distance sales contracts, within a period of fourteen days following the material possession of the goods by the consumer or a third party, other than the

carrier and indicated by the consumer;

(c) for distance service contracts:

• - 

  within a period of fourteen days following the conclusion of the contract, where the consumer has not given his prior express consent for the

performance of the contract to begin before the end of this fourteen day

period;

• - 

  within a period ending when the performance of the contract begins, where the consumer has given his prior express consent for the performance of the

contract to begin before the end of the fourteen day period.

[Subject to the final wording of Article 12.]

• 3. 

  For all sales contracts, a statement informing the consumer about the time-limits and modalities to send back the goods to the trader, including the information on who

bears the costs for sending back the goods, and the conditions for the reimbursement

in accordance with Articles 16 and 17(2).

• 4. 

  For distance contracts concluded on the Internet If the trader so allows, a statement that the consumer can electronically fill in and submit the standard withdrawal form on

the trader's website and that he will receive an acknowledgement of receipt of such a

withdrawal from the trader by email without delay.

• 5. 

  A statement that the consumer can use the withdrawal form set out in Part B.

B. Model withdrawal form

(complete and return this form only if you wish to withdraw from the contract)

• - 

  To:
• - 

  I/We* hereby give notice that I/We* withdraw from my/our* contract of sale of the following goods*/provision of the following service*
• - 

  Ordered on*/received on*
• - 

  Name of consumer(s)
• - 

  Address of consumer(s)
• - 

  Signature of consumer(s) (only if this form is notified in writing)
• - 

  Date *Delete as appropriate.

• 8 okt '08
  Consumentenrechten
  
  
  
• 8 okt '08
  COM(2008)614 - Consumentenrechten
  
  
  
• 7 jun '07
  COM(2007)303 - Bescherming van de consumenten met betrekking tot bepaalde aspecten van timeshare, langetermijnvakantieproducten, wederverkoop en ruil
  
  
  
• 15 dec '05
  COM(2005)650 - Recht dat van toepassing is op verbintenissen uit overeenkomst (Rome I)
  
  
  
• 1 dec '05
  COM(2005)603 - Uitvoering van het Lissabon-programma van de EG - Voorstel voor een richtlijn van het Europees Parlement en de Raad betreffende betalingsdiensten in de interne markt en tot wijziging van de Richtlijnen 97/7/EG, 2002/12/EG en 2002/65/EG
  
  
  
• 13 jan '04
  COM(2004)2 - Diensten op de interne markt [SEC(2004) 21]
  
  
  
• 11 sep '02
  COM(2002)443 - Harmonisatie van nationale wetgeving inzake consumentenkrediet
  
  
  
• 12 jul '00
  COM(2000)385 - Verwerking van persoonsgegevens en de bescherming van de persoonlijke levenssfeer in de sector elektronische communicatie
  
  
  
• 28 jun '00
  COM(2000)398 - Levensverzekering
  
  
  
• 18 nov '98
  COM(1998)586; - Juridische aspecten van de elektronische handel in de interne markt