Discussion paper on the Proposal for a directive on consumer rights

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  1. Tekst
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1.

Tekst

Delegations will find attached the abovementioned document which takes into account comments

made at the Working Party meeting of 6 May 2009.

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ANNEX

Following the work in the Working Party, there seems to be a general support of the Member States

to the proposal's objectives. However, (i) regarding that the provisions covered by the proposal will

be fully harmonised, (ii) given the complexity of the proposal, its impacts on the internal market

and close relation with national contract law, (iii) taking into account the fact that the scope of the

proposal still remains unclear, and (iv) due to the fact that contracts to be covered are different as to

the value of the subject matter, possible national sensitivity or traditions concerning certain types of

contracts, the positions of the Member States expressed in the Working Party rather differ.

Therefore, the Presidency considers it necessary to discuss in the Working Party at this stage certain

issues that have major impact on future negotiations.

The Presidency has identified the following issues for consideration, some of which require deeper

explanation by the Commission.

I. General issues: I.1. Impacts on the internal market

I.2. Balance between traders' and consumers' interests

I.3. Inner coherence of the proposal

I.4. Relationship between the proposal and other Community legislation

I.5. Relationship between the proposal and national contract laws

II. Specific issues: II.1. Scope

II.2. Information requirements

II.3. Formal requirements

I.1. Impacts on the internal market

The Internal market is one of the major achievements of European integration and has the

potential to become the largest retail market in the world. There are still several areas,

however, where the internal market's potential is not being fully exploited.

A good example is the business-to-consumer internal market that still remains largely

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fragmented along national borders. According to the Consumer policy strategy 2007 ­ 2013 , the Commission's vision is to be able to demonstrate to EU citizens by 2013 that they "can

shop from anywhere in the EU, from corner-shop to a website, confident that they are equally

effectively protected". Similarly, the Commission wants to be able to demonstrate to all

retailers that they "can sell anywhere on the basis of a single, simple set of rules".

With the aim to contribute to the better functioning of the business-to-consumer internal

market by enhancing consumer confidence in the internal market and reducing business

reluctance to trade cross-border, the Commission adopted the proposal for a Directive on

Consumer Rights (8 October 2009). The proposal has been negotiated in the Council since

then. The Member States have expressed their support to those objectives; however, the

methods of achieving them sometimes differ.

Conclusion:

While taking position in the Working Party, the Member States are asked to always

consider the overall aim to achieve the above mentioned objectives.

1 Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee EU Consumer Policy strategy 2007 ­ 2013, COM(2007) 99 final

I.2. Balance between traders' and consumers' interests

For fifty years, consumers and businesses have been the most powerful forces in the internal

market. Therefore, both consumers and businesses must be taken into account when creating

new regulations. Both must feel confident to sell and to buy in the internal market. It must be

emphasised that the need for confident consumers to drive the economies has never been

greater than in the current crisis. On the other hand, too strict rules for running businesses lead

to a constriction of the range and quality of services and products provided and consequently

are harmful for welfare of both consumers and businesses. Striking the right balance is the

basis for the success of any new policy or measure. Undoubtedly, this approach must apply to

the proposal for a directive on consumer rights.

Conclusion:

While discussing every provision of the proposal in the Working Party, account must be

always taken from both perspectives, i.e. consumers' as well as traders'. Their interests

should be equally considered and protected; otherwise, the proposal's objectives could not

be met.

I.3. Coherence of the proposal

The proposal covers different contracts, both regarding the objects and complexity.

Furthermore, it covers areas that are not necessarily closely linked, such as rules on

guarantees on one hand and contract terms on the other hand. Moreover, the scope of the

particular chapters differs (see below Chapter 2.1). Despite these circumstances, it is

necessary to ensure the inner coherence of the text. Consequently, definitions should apply to

the whole proposal, provisions that regulate the same situations must be of the same wording,

similar situations should be treated similarly, etc.

In addition, it must be pointed out that the proposal is closely linked to other Community

legislation. Consequently, apart from the inner coherence of the proposal, also coherence with

those legal acts must be ensured, may these rules be from the field of consumer protection or

from any other field.

Conclusion:

While making amendments to the text, coherence both within the proposal and with the

related Community legislation must be always considered (role of the Presidency, the

General Secretariat and the Commission).

I.4. Relationship between the proposal and other Community legislation

According to the Presidency's suggestion in Article 3(4) (doc. No. 7775/09) supported by the

majority of delegations and the Commission, the proposal should be without prejudice to

other Community legislation providing for information requirements. This amendment should

ensure that existing sector-specific legislation in different fields (food labelling, health care,

etc.) will apply together with the proposal.

However, the Member States have raised some doubts in respect to the future implementation

process. Taking into account the fact that the proposal's provisions are fully harmonised,

whereas the specific legislation is mainly based on minimum harmonisation, it should be

determined unambiguously, what is the Member States' discretion during implementation, i.e.

if and under what conditions they are allowed to introduce further rules/requirements (or

maintain existing provisions) which would be allowed by minimum harmonisation rules but

prohibited by rules that are to be fully harmonised.

Conclusion:

(1) The Commission is asked to provide, in writing, a clear guidance in this regard. Apart

from the general guidance, a special focus should be given to the relation between the

proposal and the Services Directive.

(2) The Legal Service of the Council is asked to provide, in writing, its opinion in this

regard.

I.5. Relationship between the proposal and national contract laws

Given the fact that the proposal is based on full harmonisation, doubts have been raised

concerning the borderline between the proposal and national contract law provisions. Clear

and unambiguous interpretation and understanding are highly important especially for areas

connected with conclusion of a contract, information requirements and failure to comply with

them, consequences of withdrawal from a contract (an offer), guarantees/remedies and

contract terms.

Conclusion:

(1) In this regard and for ensuring efficiency of upcoming negotiations, the Commission

is asked to provide, in writing, a uniform and clear guidance in order to prevent

possible misunderstandings and incorrect implementation of the future directive in

the Member State. Based on such written explanatory guidance, the text of the

proposal will be clarified and improved.

(2) On the basis of internal analyses of the relationship between the proposal and the

national contract law carried out by the Member States, the delegations are asked to

provide possible questions in this regard and forward them to the Presidency and the

Commission, in order to enable the Commission to focus on those issues in its

explanations (e.g. maintenance of the right to reject or "vices cachés" regarding

provisions on guarantees).

II.1. Scope

Discussions in the WP cannot continue effectively until the scope of all chapters is precisely

defined. The Presidency has identified the following issues as those that determine the scope

and require clarification and overall agreement:

the proposal shall apply to all business to consumer contracts; there should be no limitation only to sales contracts and service contracts as currently proposed (however,

chapter III shall apply only to off-premises and distance contracts and chapter IV to

sales contracts for goods);

the proposal shall apply to contracts relating to immovable property, except for chapter IV; however, extent of application of chapters II and III to such contracts remains to be

determined;

chapters I, V and VI shall apply to financial services, transport services falling within the scope of Title V of the Treaty, social services, timeshare and package tours (in the

last case, also chapter III should fully apply); however, extent of application of chapters

II and III to such contracts remains to be determined;

certain definitions are crucial for the scope, consequently, they need to be clarified together with the scope (especially the newly proposed definition of consumer contract

replacing definitions of sales contract and services contract, and improvement of

definitions of distance contract and off-premises contract);

inclusion of specific regime for internet auctions in chapter III should be discussed; note: exceptions from right of withdrawal affect the scope of the proposal as well. (for summary of the scope in the Presidency's understanding ­ see Annex to the A EX): Conclusion:

The Member States and the Commission are asked to assess the following options and

express their preferences, eventually propose other solutions:

(a) Contracts relating to immovable property:

(aa) Given the specificity of immovable property, the whole proposal should apply to

contracts relating to immovable property generally, however, with the exception of

chapter IV (due to its nature and scope) and with only limited application of chapters II

and III. Consequently, it is necessary to decide how to proceed in respect of chapters II

and III; there are the following options:

Option A: to fully exclude contracts relating to immovable property from application of chapters II and III;

Option B: to exclude contracts relating to immovable property from application of provisions on information requirements but to keep provisions on

the right of withdrawal, while applying the regime of full

harmonization;

Option C: to apply chapters II and III to contracts relating to immovable property, while:

  • 1. 
    applying the regime of full harmonization; or
  • 2. 
    allowing the Member States to maintain (e.g. for a limited period of time) existing more stringent provisions on

information requirements for this specific subject matter.

(ab) Moreover, it should be discussed and decided if chapters II and III should apply to

all contracts related to immovable property or only to certain contracts relating to

immovable property, such as contracts for renting or contracts for supply of goods and

their incorporation in immovable property or contracts for repair of immovable

property; in the latter case, contracts concluded for construction and sale of immovable

property or contracts relating to other immovable property rights would be excluded.

(b) Financial services:

Chapter III of the Commission's proposal covers only certain types of off-premises

contracts for provision of financial services (mortgages sold off-premises would be

covered by the proposal or consumer credits falling out of the scope of the Consumer

Credit Directive (Directive 2008/48/EC), for which the Member States are free to

regulate in their national legislation). Chapter II is not directly applicable; however,

chapter III (Article 9) makes a link to general information requirements. Consequently,

it is necessary to decide how to proceed in respect of chapters II and III; there are the

following options:

Option A: to fully exclude the relevant contracts from application of chapters II and III;

Option B: to exclude the relevant financial services contracts from application of provisions on information requirements but to keep provisions on the

right of withdrawal, while applying the regime of full harmonization;.

Option C: to apply chapters II and III to financial services contracts, while: 1. applying the regime of full harmonization; or

  • 2. 
    allowing the Member States to maintain (e.g. for a limited period of time) existing more stringent provisions on

information requirements for this specific subject matter.

(c) Transport services:

These services are covered by existing Community legislation or by proposals to be

adopted soon; therefore the Member States are asked to express their preference for

one of the following options:

Option A: to fully exclude transport contracts from application of chapters II and III because the sector-specific Community legislation is sufficient

concerning information requirements and right of withdrawal in case

of distance and off-premises contracts;

Option B: to exclude the relevant transport contracts from the application of provisions on information requirements but to keep provisions on the

right of withdrawal, while applying the regime of full harmonization;

Option C: to apply chapters II and III to transport contracts, while applying the regime of full harmonization.

(d) Social services as provided for by Article 2(1)(j) of Directive on Services in the

Internal Market

The Member States are asked to express their preference for one of the following

options:

Option A: to fully exclude social services contracts from application of chapters II and III;

Option B: to exclude the relevant social services contracts from application of provisions on information requirements but to keep provisions on the

right to withdraw, while applying the regime of full harmonization;

Option C: to apply chapters II and III to social services contracts, while applying the regime of full harmonization.

(e) Definitions:

There are several definitions that determine the scope of the proposal. The Presidency

has identified the following as crucial and suggests new wording for them. The Member

States are asked to express their position concerning the proposals:

· First of all, the Presidency suggests introducing a new definition of consumer contract instead of definitions of sales and service contract, and consequently

explaining the exact scope of application of chapter IV in Article 21; thus,

o consumer contract means any contract between a trader and a consumer for remuneration

o Article 21(1) This chapter shall apply to consumer contracts for the sale of goods. Where the contract has as its object both goods and services, this

Chapter shall only apply to the goods.

· distance contract: means any consumer contract in respect of which an offer was made and accepted with exclusive use of one or more means of distance

communication

· off-premises contract: means any consumer contract in respect of which (a) an offer was made and accepted away from business premises with the simultaneous

physical presence of the trader and the consumer; (b) an offer was made in the

same circumstances; or (c) negotiations aiming at concluding a consumer

contract took place in the same circumstances but the offer was accepted on

business premises

(f) Internet auctions:

Following the discussions in the Working Party, there are the following options how to

proceed in this regard and the Member States are asked to express their preferences:

Option A: to maintain the Commission's proposal;

Option B: to introduce a single definition of an auction regardless of the form where and how the auction is organised and not to apply the withdrawal right in

case of auctions that would fulfil the criteria of the definition;

Option C: to include specific rules concerning internet auctions in chapter III.

II.2. Information requirements

(a) Currently, the proposal provides for two sets of information requirements: general rules that are to be fulfilled by traders regardless of where they make their business (on

premises, off-premises, distance) and specific rules for off-premises and distance

contracts.

While considering the new rules on information requirements contained in chapter II, it must be taken into account that the proposal has a broad scope and that there are

different specific national provisions on specific (sensitive) types of contracts in place in

the Member States. Another aspect to be regarded is the amount of information

necessary for consumers' decisions. The rules should avoid the overload of unnecessary

and thus confusing information for consumers that may cause at the same time

unnecessary burden for traders. Further, it should be taken into account that sales on-

premises do not have significant impact on the internal market.

Conclusion:

The Presidency sees the following possible ways forward and the Member States are

asked to express their preferences:

Option A: to elaborate exceptions for contracts for which chapter II would not apply due to their specificity;

Option B: exclude the rules on general information requirements (i.e. Chapter II) from the scope of the directive and maintain the

respective regulation at national level. evertheless, for distance and

off-premises contracts, the relevant requirements currently

contained in Article 5 as well as related sanctions contained in

Article 6 should apply and thus should be moved to chapter III

(Article 9);

Option C: to allow the Member States to maintain (e.g. for a limited period of time) existing more stringent information requirements for given

specific contracts.

(b) Next, aspect of sanctions for omission to provide the prescribed information should be dealt with in this regard.

Conclusion:

The Presidency sees the following possible ways forward and the Member States are

asked to express their preferences:

Option A: to maintain the Commission's proposal, i.e. national contract law should provide for contract law remedies (apart from penalties

according to Article 42);

Option B: to harmonise sanctions for omission to provide the prescribed information.

II.3. Formal (contractual) requirements

The Presidency is of the opinion that formal requirements provided for by Articles 10 and 11

are related to the pre-contractual phase. Consequently, from the strictly legal point of view,

they are without prejudice to national contract law provisions concerning the form of a

contract, such as an obligatory written form for contracts as well as contract terms

requirements, e.g. warnings for consumers to be contained in certain contracts, statements "lu

et approuvé", etc. However, the Member States may opt for a different approach and include

provisions harmonising formal requirements of contracts into the proposal.

Conclusion:

The Member States are invited to express their preferences concerning the following

question:

Should only the pre-contractual phase be harmonised or is it necessary, from the internal

market point of view, to include some provisions on formal requirements for contracts into

the proposal (solution adopted in Directive 2008/122/EC)?

Annex to the ANNEX

Scope

The proposal shall apply to all contracts concluded between a consumer and a trader for

remuneration (consumer contract).

However, chapter III shall apply only to consumer contracts concluded off-premises or at a

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distance , with the following exceptions:

contracts falling within the scope of Directive 2008/122/EC (timeshare contracts)

the supply of foodstuffs, beverages and other goods intended for current consumption in the household by trader on his frequent and regular rounds

contracts concluded by means of automatic vending machines or automated commercial premises

contracts concluded with telecommunication operators through public payphones for their use

sale of immovable property

  • ? 
    other contracts related to immovable property?

financial services concluded at a distance (Directive 2002/65/EC applies)

life assurance contracts concluded off-premises and falling within the scope of Directive 2002/83/EC

financial services concluded off-premises whose price depends on fluctuation in the financial markets

2 It must be pointed out that the scope will be determined also by definitions of an off-premises contract and a distance contract.

consumer credit contracts concluded off-premises and falling within the scope of Directive 2008/48/EC

  • ? 
    other financial services contracts concluded off-premises?
  • ? 
    transport services falling within the scope of title V of the Treaty? ? social services?
  • ? 
    contracts concluded on internet auction?

Notes:

  • - 
    application of chapter III is also limited by exceptions for contracts to be excluded only from application of rules on withdrawal right;
  • - 
    similar exceptions may be relevant also for chapter II (general information requirements).

Further, chapter IV has also a limited scope of application. It shall be applicable only to consumer

contracts for sale of goods. Where a contract has as its object both goods and services, the chapter

shall apply only to the goods. Consequently, this chapter shall not apply to the sale of immovable

property, electricity, water and gas (where they are not put on sale in a limited volume or set

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quantity) and goods sold by way of execution or otherwise by authority of law.

3 Subject to final definition of the term "goods".

2.

Originele weergave

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3.

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