EUROPEAN COMMISSION Brussels, 23.5.2017 SWD(2017) 169 final COMMISSION STAFF WORKING DOCUMENT Evaluation of the Consumer Rights Directive Accompanying the document Report from the Commission to the European Parliament and the Council on the application of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1991/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council {COM(2017) 259 final}

{SWD(2017) 170 final}



CRD Report - SWD Contents Acronyms and abbreviations 1. Introduction 2. Background to the initiative 2.1 The Directive and its main provisions 2.2 Original objectives of the Directive 2.3 How the objectives of the Directive were to be achieved 3. Evaluation Questions 4. Method 4.1. External study 4.2. Online public consultation 4.3. Consumer Summit dedicated to Fitness Check (17 October 2016) 4.4. Stakeholder expert group 4.5. Meetings with DG Justice and Consumers networks 4.6 Sweep activities and enforcement actions by CPC network to ensure compliance with CRD 4.7. Other consultation and evidence sources 4.8. Limitation – robustness of the findings 5. Implementation state of play

5.1. Transposition and Implementation 5.2. Full harmonisation and regulatory choices 5.3. Follow-up to transposition 6. Answers to the evaluation questions 6.1. Effectiveness 6.1.1. Awareness 6.1.2. Problems with interpretation 6.1.3. Compliance by traders 6.1.4. Administrative and judicial enforcement 6.1.5. Penalties 6.2. Efficiency 6.2.1. Costs and benefits – general analysis 6.2.2 Impacts on traders 6.2.3. Impact for SMEs 6.2.4. Impact for national authorities 6.2.5. Impact for sectors 6.3. Coherence 6.3.1. Coherence between the CRD and other EU legislation – general analysis 6.3.2. Interplay with consumer and marketing legislation 6.3.3. Interplay with other horizontal legislation

6.3.4. Interplay with sector-specific legislation 6.3.5. Interplay with new proposals 6.4. Relevance 6.4.1. The objectives of the CRD 6.4.2. Stakeholders’ views: Relevance of the objectives of the CRD 6.4.3. Should the scope of the Directive be amended in relation to digital content? 6.4.4. Relevance of specific CRD provisions 6.4.5. Relevance of specific information requirements and possible need for a model form 6.4.6. Relevance of specific information requirements for online marketplaces 6.5. European added value 7. CONCLUSIONS Annex 1 - Procedural information concerning the process to prepare the evaluation Annex 2 - Synopsis of stakeholder consultations 1. Consultation on the roadmap 2. Targeted stakeholder consultations (July-November 2016) 3. Meetings of Fitness Check Stakeholder Group 4. Online Public Consultation 6. Meetings with existing stakeholder groups of DG JUST networks 7. Consumer summit – 17 October 2016 8. European Parliament's internal market and consumer protection committee (IMCO) and legal affairs committee (JURI)

9. European Economic and Social Committee's (EESC) consultation 10. Overall messages from the consultations Annex 3 - Methods and analytical models used in preparing the evaluation

Acronyms and abbreviations B2B Business-to-Business B2C Business-to-Consumer CRD Consumer Rights Directive 2011/83/EU CPC Consumer Protection Cooperation DCDP Proposal for a Directive on contracts for the supply of digital content COM/2015/0634 final - 2015/0287 (COD) DG Directorate General DG JUST Directorate General Justice and Consumers EC European Commission ECC European Consumer Centre EESC European Economic and Social Committee EU European Union ICT Information and Communication Technology ID Injunctions Directive 2009/22/EC PID Price Indication Directive 98/6/EC

SMEs Small and Medium-sized Enterprises SWD Staff working document T&Cs Terms and Conditions (standard contract terms) UCPD Unfair Commercial Practices Directive 2005/29/EC UCTD Unfair Contract Terms Directive 93/13/EEC



1. Introduction Pursuant to Article 30 of Directive 2011/83/EU of 25 October 2011 on consumer rights the Commission is required to report on the application of the Directive to the European Parliament and the Council. The report shall include in particular an evaluation of the provisions of this Directive regarding digital content, including the right of withdrawal. The report shall be accompanied, where necessary, by legislative proposals to adapt the Directive to developments in the field of consumer rights. To this end, the Commission has carried out an evaluation of the Directive with the aim of establishing whether, and to what extent, the objectives of the Directive have been achieved, with regard, inter alia, to the functioning of the internal market. The evaluation sought to assess the overall impact of the Directive by assessing its effectiveness, efficiency, coherence, relevance and EU added value, having particular regard to the rules on digital content as well as on the pre-contractual information and formal requirements (Articles 5(1), 6(1), 7 and 8), and the fully harmonised right of withdrawal (Articles 9-16). Member States had to transpose the CRD by 13 December 2013 and had to apply their national transposition measures from 13 June 2014. This evaluation has therefore been undertaken based on less than three years of actual application of the CRD provisions in the Member States. Therefore, it is too soon to see the full impact of the Directive in relation to its overall objectives, which – according to its Article 1 – is, "through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market". As further explained in Recital 4 of the CRD, the harmonisation of certain aspects of consumer distance and off-premises contracts is considered 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". Due to the limited time of practical application, the evaluation has been mainly focused on assessing how far the Member States, businesses and consumers are implementing and making use of the provisions of the Directive and whether the practical uptake is in line with the objectives pursued. The evaluation focuses on the effects of the new or modified rules introduced and takes into account the positive and negative impacts of the Directive on businesses (e.g. easier cross-border market access, reduced compliance costs, possible additional burden) and on consumers (e.g. greater choice, reduced detriment, possible lower level of protection). The analysis focussed on the fully harmonised provisions; it also summarises to which extent the Member States have made use of regulatory choices allowed by the Directive. The evaluation covered the period since the beginning of the application of the national transposition measures (13 June 2014) and covered all EU Member States. This SWD accompanies the report on the application of the CRD that the Commission needs to submit to the European Parliament and the Council pursuant to Article 30 of the Directive which is based on the evaluation's main findings. 2. Background to the initiative 2.1. The Directive and its main provisions The Directive replaced two previous Directives (i.e. Directive 85/577/EEC on contracts negotiated away from business premises – "off-premises contracts" – and Directive 97/7/EC on contracts concluded through the means of distance communication – "distance contracts") and amended certain provisions of Directive 93/13/EEC on unfair terms in consumer contracts and Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees. The Directive is a horizontal piece of legislation which regulates the main aspects of distance, off-premises and on-premises contracts between consumers and businesses. It covers contracts for the purchase of goods, services, digital content not supplied on a tangible medium and supply of public utilities. Nevertheless, according to its Article 3(3), some contracts are excluded from the scope of the Directive (e.g. contracts concerning social services, healthcare, gambling, immovable property, financial services, package travel, timeshare, supply of foodstuffs or – except for some specific provisions - passenger transport). Whilst the former Directives of 1985 and 1997 concerning, respectively, off-premises and distance contracts, only provided for a minimum level of harmonisation of consumer protection rules, the Consumer Rights Directive is a full harmonisation Directive (Article 4). In particular, it provides a single set of core rules for distance and off-premises contracts. It aimed at strengthening consumer protection, for example by introducing stricter pre-contractual information requirements and a uniform right of withdrawal period. It sets formal requirements for distance and off-premises contracts, clear rules on delivery of goods and passing of risk and sets limitations to the application of fees for the use of means of payments, communication by telephone between consumers and traders and additional payments. At the same time, the Directive aimed to reduce costs for cross-border traders, for whom the uniform rules across the EU should lead to lower compliance costs.

As mentioned, the Directive generally has a full harmonisation character, meaning that national provisions transposing it may not go below or beyond its provisions (Article 4). However, the Directive allows Member States to impose additional pre-contractual information requirements for on-premises contracts (Article 5(4)). In addition, it gives Members States the possibility to make use of certain regulatory choices under their own national law as analysed under section 5.2. Member States are held to report about the regulatory choices they have made and the Commission has made the information available on its website in accordance with Article 29 CRD. Compared with the previous legal minimum harmonisation framework under Directive 97/7/EC and Directive 85/577/EEC, the new provisions of the Consumer Rights Directive relate to: · further harmonisation of pre-contractual information requirements for on-premises (Article 5(1)) and full harmonisation of those applicable to distance and off-premises contracts (Article 6(1)); ·inclusion of digital content in the scope with specific provisions related to it, such as information on functionality and interoperability and right of withdrawal (Articles 5(1)(g) and (h); 6(1)(r) and (s); 9(2)(c); 14(4)(b); and 16(m)); ·formal requirements for distance and off-premises contracts, e.g. 'button provision' for orders with an obligation to pay (Articles 7 and 8); ·fully harmonised period of 14 days for the right of withdrawal from distance and off-premises contracts - albeit with some exceptions (Article 16) - and clearer refund rights (Articles 9-15); ·new rules on the delivery and passing of risk (Articles 18 and 20); · ‘basic rate’ requirement for consumer phone-calls to the trader in relation to contracts already concluded (Article 21); ·ban on unjustified charges for payment means (Article 19) and pre-ticked boxes (Article 22). ·exempting the consumer from the obligation to pay for any unsolicited supply of products or provision of services ('inertia selling', Article 27); ·introduction of an EU-wide model withdrawal form.(Articles 6(1)(h) and 11, Annex I(B)). 2.2. Original objectives of the Directive The overall objective of the Directive is to achieve a high level of consumer protection across the EU and to contribute to the proper functioning of the internal market by approximating certain aspects of Member States' laws, regulations and administrative provisions concerning contracts concluded between consumers and traders. The Intervention logic shows the expected sequence of general and specific objectives, inputs, outputs and the intended results and impacts of the Directive The Impact Assessment of the CRD proposal noted that the Directive should meet the dual objective of making it easier for traders to sell cross-border and enhancing consumer confidence in cross-border shopping. Before the adoption of the Directive, surveys showed that, for most traders, compliance costs constituted an important barrier to cross-border trade, which reduced their incentive to sell cross-border, particularly to consumers in small Member States. The majority of respondents to the Green Paper consultation carried out in 2007 called for the adoption of a horizontal legislative instrument applicable to domestic and cross-border transactions, based on full targeted harmonisation. The Directive was expected to strongly contribute to the better functioning of the internal market through harmonisation and streamlining. As indicated in the Impact Assessment, simplification of the regulatory framework reduces obstacles for traders to conclude crossborder contracts, increasing at the same time consumer confidence in crossborder and domestic shopping, particularly through lower prices and better choice for consumers. The Directive was also expected to strongly improve the quality of national legislation and the level of consumer protection, particularly in distance and off-premises transactions, as it removes inconsistencies and loopholes by setting common rules and definitions. 2.3. How the objectives of the Directive were to be achieved The objectives of the Consumer Rights Directive were to be achieved by a comprehensive legislative instrument, which fully harmonises the main aspects of offpremises and distance contracts, and regulates some aspects of on-premises contracts. In particular, the Directive sets a fully harmonised list of pre-contractual information requirements for off-premises and distance contracts and harmonises the consumers' right of withdrawal, including its length, modalities for its exercise, its consequences and exceptions; it also stipulates clear rules for delivery of goods and it sets out the moment of passing of risk from the trader to the consumer for loss of or damage to the goods.

The Directive also for the first time laid down specific rules at the EU level on digital content for example as regards pre-contractual information and the right of withdrawal. Consequently, it was expected that the Directive would remove some of the barriers to the Single Market and facilitate cross-border transactions by ensuring a harmonised contractual regime for businesses and the same rights for consumers across the EU. This should result in traders being encouraged to develop their business cross-border and consumers being able to benefit from extended choice and potentially lower prices. Together with the Price Indication Directive 98/6/EC (PID) and the Unfair Commercial Practices Directive 2005/29/EC (UCPD), the Consumer Rights Directive sets a comprehensive framework for ensuring transparency in business-to-consumers relations, regarding the information to be given to the consumer at the pre-contractual stage of a transaction. Immediately before the conclusion of the contract, the Consumer Rights Directive protects the consumer by laying down formal requirements for distance and off-premises contracts. At the stage of contract performance, it provides the consumer with certain additional rights, such as the right of withdrawal for distance and off-premises contracts and clear rules for delivery of goods and passing of risk. At this stage, the Directive interacts with the Unfair Commercial Practices Directive, the Consumer Sales and Guarantees Directive and the Unfair Contract Terms Directive. The following diagram illustrates how the Consumer Rights Directive interacts with the other consumer and marketing law Directives currently subject to the wider Fitness check evaluation. 3. Evaluation Questions To analyse the effectiveness, efficiency, coherence, relevance and EU added value of the Consumer Rights Directive, the evaluation should provide answers to a series of evaluation questions relating to each of these five key evaluation criteria. The evaluation questions are listed in section 6 under each of the criteria. 4. Method The findings and conclusions of the evaluation are based on an external study on the application of the CRD, a report of the EESC on the CRD, a stakeholder consultation, submissions by stakeholders (also within the context of the REFIT stakeholder platform), enforcement actions by national authorities, and information available through the conformity check of national transposition measures. The different evaluation activities are described in the following subsections and in the Annexes to this SWD. As the CRD evaluation ran in parallel to the general Fitness Check of consumer and marketing law, and the results of the CRD evaluation feed into the Final Fitness Check report, several consultation activities of the Fitness Check (such as the Stakeholder consultation group, the Consumer Summit, online public consultation) were used to gather views and data also for the CRD evaluation. 4.1. External study Between May 2016 and February 2017, the Commission's external contractor carried out a dedicated study on the application of the CRD in order to support this evaluation. The study's aim was to establish the degree to which the objectives of the Directive have been achieved – i.e. a high level of consumer protection and contribution to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions concerning contracts concluded between consumers and traders. The study was performed by a consortium led by Risk & Policy Analysts Ltd (RPA) which was chosen based on a framework contract of (former) Directorate General Health and Consumers (former DG SANCO, currently DG SANTE) for the provision of evaluation and impact assessment in the area of Consumer Policy. It was based on literature review (including documents on the legal implementation of the Directive in different Member States) and stakeholder consultation (by means of an online survey and interviews – with 524 complete replies to the survey and 64 interviews in total; for more information please see Annex 2). In addition, results from the Commission's online public consultation carried out in the framework of the REFIT Fitness Check, the 2016 Consumer summit, the European Economic and Social Committee information report on the CRD, the results of the behavioural experiment and mystery shopping exercises to support the Consumer market study for the Fitness Check as well as of the 2015 CRD sweep of the CPC network were taken into account. Annexes 1-3 provide additional information on the external study, its methodology and consultations. The final report of the study is published together with this SWD. Over the course of the project the evaluation team encountered many difficulties in carrying out tasks in order to answer the evaluation question. The contractor for the CRD study has not been able to gather quantitative estimates of costs and benefits of the implementation of the CRD, except from anecdotal examples. In trying to overcome some difficulties in gathering data, the final report had to be revised and thus delayed compared to the original project timeline. 4.2. Online public consultation The Commission organised an online public consultation to support its Fitness Check on consumer and marketing law and the CRD evaluation. The consultation ran from 12 May to 12 September 2016 in all EU languages. In total, 436 replies were received via the EU survey IT tool. The largest respondent category was companies, followed by consumers and business associations. As to the geographical distribution of responses, there was at least one reply from every Member State whilst the biggest number of responses was received from Germany (50%) followed by Belgium (11%) and UK (6%). The survey questionnaire consisted of short questionnaires for individual consumers and for individual companies and of a more comprehensive 'full' questionnaire for other respondents. The 'full' questionnaire was optional for individual consumers and individual companies. Around 38% of the consumer respondents and around 20% of the companies chose to also reply to the full questionnaire. The survey responses consisted of replies to multiple choice questions and open text comments to specific questions. Around 50 respondents submitted also additional position papers. The public consultation provided information essentially in the form of opinions about aspects of the Consumer law directives, but were not supported by evidence. The respondents were self-selecting and can therefore not be considered as representative, moreover within the different stakeholder categories, the numbers of respondents are relatively low. The results were nonetheless used to inform this evaluation, also in order to complement information gathered from other sources. In particular, the level of replies from national and EU level business and consumer associations was high enough to be considered useful for the evaluation (20 consumer associations, 86 business associations), also in view of the fact that in particular the EU level associations represent a significant number of members from different Member States. Annex 2 provides more information and a short analysis of the CRD related outcome of the public consultation. A summary and the responses have also been published on the Commission website and a detailed report prepared by the external consultant of the Fitness check is published as part of the supporting studies. 4.3. Consumer Summit dedicated to Fitness Check (17 October 2016) The 2016 Consumer Summit was dedicated to the Fitness Check of EU consumer and marketing law and CRD related issues, and brought together around 450 representatives of national authorities, European institutions, consumer organisations, businesses as well as academics. It focused on the issues of consumer information requirements stemming, among others, from the CRD, the fairness of commercial practices and of contractual terms and ways to enhance the effectiveness of the injunction procedure. The participants largely shared the view that current EU consumer and marketing laws broadly remain fit for purpose. The key weaknesses identified were related to low and uneven enforcement linked to a low level of consumers' and traders' awareness about their rights and duties. As regards needs for modernising the existing rules, the participants were largely pointing towards targeted amendments to the existing directives, in particular to streamline and remove overlaps (e.g. by codification/ recast into a single instrument) and further awareness raising efforts and guidance on the interpretation/ application. In relation to consumer information, one of the three main topics of the Summit, the participants largely agreed that there is a need for simplification of the information requirements currently provided in several directives, strengthening the transparency requirements for online intermediaries (platforms) and improving the way information is displayed to consumers. All information about the Summit, including the conclusions of the thematic workshops, is available on the website of DG Justice and Consumers.

4.4. Stakeholder expert group For the purposes of the Fitness Check and the CRD evaluation, DG Justice and Consumers set up, through an open call for applications, a dedicated Stakeholder expert group consisting of the main EU level consumer and civil society organisations, 5 major national consumer associations and main EU level business associations. Between September 2016 and May 2017 the Group has met four times to discuss the major evaluation topics as well as specific ideas for the future modernisation of EU consumer rules and methods of better presenting to consumers the mandatory pre-contractual information and standard contract Terms and Conditions. The Group will continue advising DG Justice and Consumers as regards follow-up activities to the Fitness Check and the CRD evaluation. 4.5. Meetings with DG Justice and Consumers networks Since the beginning of 2016, DG Justice and Consumers has made a number of presentations at the regular meetings of the DG JUST networks of consumer protection authorities: the Consumer Protection Co-operation (CPC) network, the Consumer Policy Network (CPN), the European Consumer Consultative Group (ECCG) and the European Consumer Centres (ECC) network. At the meetings, focus was usually on the Fitness check of consumer and marketing law. There seemed to be agreement that the existing body of EU consumer law overall is still fit for purpose and there was no need for fundamental changes. Most members see benefit of streamlining and removing overlaps in existing law. There were divergent views on the question of level of harmonisation. For more details, please refer to point 6 of Annex 2. 4.6. Sweep activities and enforcement actions by CPC network to ensure compliance with CRD Under the Consumer Protection Cooperation (CPC) Regulation, enforcement authorities – coordinated by the European Commission or by a Member State – can coordinate their enforcement activities (such as EU-wide screening of websites, called 'sweeps') and launch actions requiring traders operating in several EU countries to cease commercial practices contrary to EU consumer law. In 2014 a sweep was carried out on guarantees for consumer electronics. The CPC authorities checked in total 437 websites selling consumer electronics. 54% (235) of these websites were found to be non-compliant with EU consumer law regarding information obligations about the statutory and commercial guarantees. The lack of a reminder of the existence of the legal guarantee of conformity for goods before the consumer is bound by a distance contract – as required by Article 6(1)(l) of CRD was found in 174 websites (ca. 40%). In 2015 a specific sweep was carried out on the CRD by the CPC authorities, under the coordination of the Commission. In total, the EU Member States' authorities checked 743 websites for their compliance with pre-contractual information requirements. Among these websites, there was a full spectrum of traders ranging from smaller players to big e-commerce platforms. The sweep revealed irregularities on 63% of the swept websites. After corrections and enforcement actions following the sweep this number went down to 12%. 4.7. Other consultation and evidence sources In addition, the CRD evaluation benefited from the findings of the evaluation carried out by the European Economic and Social Committee as to how civil society organisations across the EU perceive and experience the implementation of CRD. The results of this report were taken into account in the study prepared by the external contractor, see point 4.1 above, and see point 9 of Annex 2 for more details on the EESC report. Moreover, the evaluation also benefited from the findings of a study recently concluded by DG Justice and Consumers, analysing consumer issues in the collaborative economy (see more details on this study in section 6.4.6). Moreover, several business stakeholder groups submitted their comments on specific provisions of the CRD, either through the REFIT stakeholder platform or directly to DG JUST, which have also been taken into consideration for this evaluation. 4.8. Limitation – robustness of the findings Due to the relatively recent transposition and implementation of the CRD and the lack of robust quantitative data, the evaluation is mainly limited to an analysis of the national transposition of the CRD, particularly focusing on the effects achieved in the short term by the Directive, and possible modifications needed on the basis of difficulties already encountered in the transposition and first application period of the Directive. Furthermore, qualitative assessment has been used as much as possible to supplement scarce quantitative data. The online survey conducted by the contractor had a relatively low response rate and data regarding the concrete impacts of the CRD gathered during the consultation activities is limited. Where possible the above limitations were remedied by the use of data collected through desk researches and data gathered in the consultation process carried out for the Fitness Check of EU consumer law as well as with available Eurobarometer data. One also has to keep in mind that the CRD operates in a broad and complex regulatory and economic system. For instance, changes to the volume of online sales may arise for several reasons, so that the causal link with the CRD cannot always be clearly established. 5. Implementation state of play 5.1. Transposition and Implementation According to Article 28 of the Directive, Member States had to adopt and publish national measures transposing the Directive by 13 December 2013, with a view to apply these measures from 13 June 2014.

The Commission services organised no less than 5 transposition workshops between 2012 and 2014, and in June 2014 issued a guidance document (the CRD Guidance). However, delays in transposition occurred in more than half of the Member States and the Directive was applicable in all 28 Member States only as from the end of 2014. The full harmonisation character of the Directive meant that Member States had to carry out an extensive review of their national legislation to bring it into line with the CRD. At present there are still a number of outstanding issues with several Member States regarding the correct transposition of specific provisions (see more details in the subsection 5.3 Follow-up to transposition). Member States chose different transposition techniques: some Member States transposed the CRD by incorporating it into already existing laws (e.g. their Civil Codes), others adopted a new piece of legislation transposing the CRD almost verbatim, and some chose a combination of these two approaches. 5.2. Full harmonisation and regulatory choices Despite its general full harmonisation character, the Directive allows Member States to impose additional pre-contractual information requirements for on-premises contracts under article 5(4). In addition, it gives Members States the possibility to apply certain regulatory choices under their own national law as shown below. ·Article 3(4) – not to apply the provisions to off-premises contracts if the payment to be made by the consumer does not exceed 50 euros; twenty Member States have made use of it and twelve of them (CY, DE, EE, EL, FI, LV, LT, MT, PL, SI, SE) have set out lower value limits for contracts to be excluded from the scope of the directive whilst three Member States (BE, PT and the UK) have applied a partial exemption, excluding specific types of contract or exempting off-premises contracts of less than 50 euros from the application of specific provisions. The remaining Member States have not made use of this Article. ·Article 6(7) – to impose language requirements regarding the contractual information for distance and off-premises contracts so that such information is easily understood by the consumer; more than half of all Member States have made use of this regulatory choice. In Member States with more than one official language, such as in CY and MT, the regulatory choice requires information to be provided at least in one of the country’s official languages. ·Article 6(8) – to impose additional information requirements in accordance with Directive 2006/123/EC on services in the internal market and Directive 2000/31/EC on electronic commerce regarding distance and off-premises contracts; only three EU Member States (UK, HU and CY) have made use of this option, with some differences. In HU, the legislator has added requirements such as the provision of information on warranties and guarantees, information on the right to conciliation and on electronic correspondence other than for off-premises or distance contract. In the UK, this option has been used only partially: enhanced information requirements are now needed by energy providers and estate agents. ·Article 7(4) – to apply a simplified information regime for off-premises contracts to carry out repairs or maintenance; it has been used by BE, IE, LT, NL, PT, SI, SK and ES but not in other EU Member States. ·Article 8(6) – to introduce specific formal requirements for contracts concluded by telephone; the majority of Member States have decided to apply this regulatory option but in some Member States it only applies when the professional calls the consumers (and not when the consumer makes the first contact). ·Article 9(3) – to maintain, in the case of off-premises contracts, existing national legislation prohibiting the trader from collecting payment from the consumer during a given period after the conclusion of the contract. Only a few Member States have applied this provision: BE, FR, EL, MT and SK. The periods that have been set up are 7 days and 14 days The most frequent regulatory choice made by Member States is Article 3(4) that allows excluding offpremises contracts with low value, followed by the language requirement for distance and off-premises contracts and the need to confirm the contract concluded by phone. However, the CRD study notes that according to the survey conducted among traders, differences in national legislation are no longer a main reason for not conducting cross-border trade. This would suggest that the CRD has been effective in reducing earlier fragmentation and the regulatory choices made by Member States appear not to have had a significant detrimental impact on the achievement of the objectives. 5.3. Follow-up to transposition The Commission services have carried out an extensive check of the transposition of the CRD in all Member States that has led to the opening of 21 bilateral dialogues (so called EU Pilot cases) with the national authorities concerned. It has notably revealed that a majority of the Member States had, at first, failed to transpose a number of definitions and key terms of the Directive in their national law. The Commission services have brought the Member States' attention to the fact that Article 4 CRD set out a full harmonisation approach: "Member States shall 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 for in this Directive". Accordingly, the Commission services have taken the position that the full harmonisation approach of the Directive implies that Member States cannot omit to transpose definitions or key terms from the Directive, if such omissions could create discrepancies between the national law and the Directive which could lead to different interpretations in individual cases. After raising this issue with the Member States, many have agreed to transpose the relevant terms in their national legislation. Outstanding issues remain on this concern for certain Member States. The CRD provisions related to digital content are an example of this issue dealt with in 8 bilateral dialogues. The CRD is the first Directive under EU consumer and marketing law that includes provisions on digital content and a few Member States have had some difficulties in transposing these concepts in an adequate manner. In some Member States the definition of "digital content" from Article 2(11) CRD had not been transposed or, in two cases, the scope of the Directive had been restraint to digital contracts against consideration. Other Member States have had problems with transposing the provisions relating to pre-contractual information requirements for digital content (on functionality and interoperability) under Articles 5(1)(g) and (h) and 6(1)(r) and (s) CRD, or the provisions related to obligations for the consumer in the event of withdrawal under Article 14(4)(b) CRD. A typical argument by a number of Member States for not having transposed certain provisions, such as those related to definitions, termination of a contract, burden of proof, was that these concepts already existed in other parts of their national legal system, or that these provisions represented general concepts not requiring explicit transposition. While Member States have made or proposed significant changes to their transposition laws in order to address these issues and bring their law in line with the Directive, the Commission services continue the bilateral dialogue with most of the Member States concerned to ensure full compliance. Whilst cases of lack of or incorrect transposition clearly affect the attainment of the objectives laid down by the Directive, few data are currently available to the European Commission as to the concrete impact in practice of such delayed and/or incorrect transpositions, since all the mentioned EU Pilot cases (with the exception of one) were opened ex officio, and not on the basis of complaints.

6. Answers to the evaluation questions 6.1. Effectiveness Achievement of Directives' objectives – general analysis Effectiveness considers to what extent the objectives pursued by the CRD have been achieved, namely setting a high level of consumer protection across the EU and contributing to the proper functioning of the internal market by approximating certain aspects of Member States' laws, regulations and administrative provisions concerning contracts concluded between consumers and traders. Further considerations include analysing the reasons why EU regulatory intervention has (or has not) been successful to date and the extent to which barriers and obstacles remain that could discourage traders from selling and consumers from shopping cross-border. The evaluation assessed the following questions: ·How effective has the Directive been in eliminating the obstacles for businesses carrying out economic activities within the EU? As already highlighted in the introduction, due to the limited time of practical application, the evaluation has been mainly based on assessing how far the Member States, businesses and consumers are implementing and making use of the provisions of the Directive. Therefore, the evaluation focuses on the transposition and implementation of the new or modified rules introduced and their effects in terms of improving the consumer protection and eliminating the regulatory fragmentation, in order to assess whether the practical uptake is in line with the achievement of the Directive's main objective of enhancing consumer protection while contributing to the proper functioning of the internal market, with particular regard to the increase of cross-border B2C trade. In fact, the 2008 Impact Assessment supporting the proposal for the Directive noted that consumers were not reaping the benefits of a fully integrated retail market with increased choice and lower prices. One of the main reasons for this was the fragmentation of the national laws regulating consumer transactions, which, in turn, increased reluctance by businesses to sell cross-border to consumers and lowered consumer confidence in shopping cross-border. The comparative analysis of the legislative situation pre-CRD and post-CRD carried out by the external contractor has highlighted that, for many of the key provisions of the CRD, consumer protection has been strengthened in most, if not all, Member States. This is because there had been either no such protection previously (e.g. in relation to pre-contractual information and the right of withdrawal for digital content contracts and prohibiting default options on websites) or, where there had already been some degree of protection, its level was increased by additional requirements on traders and harmonised rules on consumer protection. In particular, the analysis has shown: • Prior to the implementation of the CRD, in almost all Member States (except Slovakia) consumers were not protected by legislation specifically concerning the pre-contractual information applicable to digital content and the right of withdrawal; • The level of pre-contractual information which traders are required to provide to consumers under Articles 5 and 6 has increased in all Member States. Additionally, there are now clearer and stricter consequences if traders fail to inform consumers on their right to withdraw, with the withdrawal period having increased in 26 Member States, thanks to the CRD rules (Article 10), to 12 months from the end of the initial withdrawal period. Indeed, only in BE and in DE this period had to be reduced from an unlimited time to 12 months, following its entry into force; • The period for the withdrawal right (Article 9) has increased in 15 Member States, remained the same in 9 (BE, CY, CZ, DK, EE, EL, FI, SE and LV), and got reduced in one (DE); • Refund periods have now shortened across most Member States and the amounts that consumers are entitled to receive can now include the delivery costs (Article 13); • Delivery periods are now set in a number of countries where these were not regulated previously (CZ, EE, ES, FR, IE, LV, MT, PT, SK, SE and the UK) (Article 18); • Previously, most Member States had no provision in their national legislation protecting consumers against excessive telephone charges, additional payments, and inertia selling (Articles 21, 22, 27). Moreover, the CRD study concludes that the examination of national legislation in the different Member States prior to the CRD implementation has shown a significant degree of variation concerning national rules on consumer protection. For instance, the rules on delivery varied as did the periods for the right of withdrawal. Thus, the CRD has reduced differences among Member States,contributed to the reduction of regulatory discrepancies, enhanced regulatory certainty across Member States and hence incentivised traders and consumers to respectively sell and buy crossborder. The results from the surveys conducted by the contractor on the impacts of the CRD show that, overall, the Directive has been perceived by consumers and consumer associations as having enhanced the level of protection in both domestic and cross-border purchases. This is in line with the Directive's objectives to boost consumers’ confidence in both domestic and cross-border purchases, especially online as also shown by Eurobarometer and Eurostat data trends examined below. In particular, in terms of effects of the implemented rules, most consumers and consumer associations responding to the CRD survey said that the level of protection was moderate or high when buying goods and services as a result of the CRD implementation. The EESC’s report notes that 37% of respondents to their questionnaire felt that consumer confidence in online shopping had increased since June 2014 and 31% believed that confidence had increased when buying cross-border. Also according to available Eurobarometer data, the percentage of consumers feeling confident in purchasing online from another Member State has increased since 2014. In 2016, 58% of consumers felt confident in purchasing online from another Member State, which represents an increase of 21 percentage points since 2014.

The CRD provisions that were rated as the most effective ones by consumers, their associations and national competent authorities in the survey conducted by the external contractor are the right of withdrawal and the precontractual information requirements for distance and off-premises contracts, although these latter have been found excessively burdensome by traders (see Section on Efficiency). For the European Consumer Centres (ECCs) consulted within the CRD study, the right of withdrawal is one of the most effective provisions in ensuring consumer protection crossborder, together with the ban on pre-ticked boxes (Article 22). Also in the dedicated workshop of the 2016 Consumer Summit the ban on pre-ticked boxes was mentioned as a particularly effective rule, together with the 'button provision' (Article 8(2)). In detailed responses to the CRD survey, traders highlighted that the Directive had improved customer service and after-sales care within competitive markets, which in turn had helped to build consumer trust. Although traders answering the CRD survey did not notice an increase in sales as a result of the Directive, a third of respondents consulted under the EESC’s evaluation agreed that intra EU cross-border online sales had increased since June 2014 (EESC, 2017). Also in the online public consultation, around 30% of companies agreed that businesses can trade across the EU more easily thanks to the harmonised EU consumer and marketing rules, whilst 11% did not agree and 59% had no opinion on this. Analysis by Eurostat shows an increase of online cross-border purchases from 25 % in 2012 to 32 % in 2016. According to the stakeholder views, these positive developments are attributable also to EU consumer protection legislation. Whilst it is quite difficult to disentangle how far an increase in cross-border online sales is due to the CRD, as opposed to other factors many stakeholders consulted for the CRD study confirmed that there is growing interest in cross-border online shopping in order to benefit from lower prices, and stated that the CRD is one of the factors that helps to give consumers increased confidence in such shopping activities and for traders the advantage of one set of harmonised rules. Concerning obstacles to the achievement of the Directive's objective of increasing crossborder trade, the CRD survey enquired about the main reasons for traders not to sell to consumers in other EU countries. Nearly half of the respondents replied that they are not interested in selling cross-border, while in interviews they pointed to issues which might be influenced by the regulatory framework: adapting and complying with different consumer protection rules (17%), formal requirements (18%) and problems in resolving cross-border conflicts (11%). Language and cultural differences and logistical challenges were also considered as main difficulties when selling in other EU countries. For traders operating cross-border, regulatory fragmentation was found to be the main difficulty when selling in other EU countries. Although these results have to be read cautiously due to the low number of respondents, they confirm the results of the Impact Assessment accompanying the digital contracts proposals. As regards traders' views on obstacles to cross-border sales, the available Eurobarometer data show that in 2016, 37% of traders currently selling online considered differences between consumer protection rules as important obstacles to development of online cross-border sales, which represented a decrease of 5 percentage points compared to 2014. In the 2015 Digital Single Market (DSM) Strategy , the Commission stressed the yet untapped potential for further growth within the EU, by noting that, whilst 61% of EU consumers feel confident about purchasing online from a retailer in their own Member State, only 38% feel confident about purchasing from a retailer in another EU Member State. The DSM Strategy also highlighted as a problem the fact that only 7% of SMEs in the EU were selling cross-border. This was attributed also to differences in Member States consumer protection rules that discourage companies from cross-border trading and prevents consumers from benefitting from the most competitive offers. The Commission therefore concluded on the need to work on further harmonisation of the obligations of the parties to a sales contract. As a result, the Commission proposed, in December 2015, two directives fully harmonising in a targeted way the rules on remedies for digital content and distance sales of tangible goods. These proposals are currently under negotiations in the European Parliament and Council. Despite the beneficial effects brought about by the Directive, consumer associations responding to the CRD survey indicated that, for cross-border activities, the CRD was more effective in relation to the provision of goods (43% thought the CRD was very or quite effective) than services (34% thought the CRD was very or quite effective) or digital content (30% thought the CRD was very or quite effective). These results correspond with the latest Consumer Market Scoreboard, which concluded that despite the fact that improvements are more visible for services markets than for goods markets, the latter continue to be assessed more favourably than services markets. Contracts for the supply of digital content remain an area where consumers do not yet feel as protected as for sales or services contracts. Consumer associations attribute this relatively low level of effectiveness of the rules on digital content included in the CRD to both lack of enforcement and difficulties with the implementation of these provisions, especially for the right of withdrawal. The Commission services consider that another reason is probably the fact that contracts for the supply of digital content are still a relatively recent phenomenon compared to sales and services contracts and so far no tailor-made rules for digital content exist in national laws of almost all Member States. However, unlike the rules on digital content for which there could be scope for clarification of some of them, the evaluation has found that overall the way stakeholders are implementing and making use of the provisions of the Directive and the practical uptake is in line with the objectives pursued by the Directive, as also showed by mentioned trends of increasing online purchase and consumers' confidence. This is further highlighted in the next subsections examining the level of compliance, awareness and enforcement of CRD rules, where the evaluation has also tried to analyse the most recurrent factors reported by stakeholders as hindrance to the CRD’s effectiveness and thus to the achievement of its objectives, in order to identify appropriate follow-up actions to tackle the ascertained problems. As the CRD study noted, the main reported obstacles to the effectiveness of the CRD highlighted by stakeholders include: lack of awareness and understanding among consumers and traders of the Directive's provisions, lack of clarity of some provisions, lack of compliance by traders, and issues related to enforcement. 6.1.1. Awareness A lack of awareness on the side of traders and/or consumers in respect of the rights and obligations stemming from the Directive may limit the effectiveness of the Directive. In fact, lack of awareness enhances the risks of unintended non-compliance by traders with their obligations. If consumers do not know their rights sufficiently well, they are unlikely to enforce them effectively and suffer detriment as a result. As further explained below, this was found to be the case for specific CRD provisions, particularly regarding the rules on digital content contracts, and for some categories of stakeholders such as SMEs. With the aim of increasing the general knowledge among traders and consumers of the key consumer rights based on EU consumer law, the Commission launched a Consumer Rights Awareness Campaign, which ran between spring 2014 and March 2016. The campaign focused in particular on the Consumer Rights Directive, together with the Unfair Commercial Practices Directive, the Unfair Contract Terms Directive and the Consumer Sales and Guarantees Directive. National consumer authorities, consumer associations, business associations and others were encouraged to participate in the campaign. The ex-post evaluation of the campaign found that the messages addressed to consumers were relevant and well received, and thus effective in raising and enhancing awareness of consumer rights. However, it was noted that the message targeted at SMEs regarding the benefits of respecting consumer rights was not as effective, and traders were rarely able to quote specific rights relating to particular situations. Recommendations made in the evaluation suggested that future campaigns and information should focus on the obligations that traders have to comply with consumer rights. In addition to the EU-wide awareness-raising campaign, the CRD study also identified a wide range of awareness-raising activities undertaken at national level. The CRD study concludes that, despite the initiatives undertaken, the level of awareness of the CRD was not found to be in line with what it could have been expected, particularly regarding some categories of stakeholders and some specific key provisions of the Directive, as further analysed in next sections. Similarly, the EESC’s study concluded that: In general, consulted parties have confirmed that they are sufficiently aware of the national legislation implementing the directive as well as of the national proceedings to enforce it, in particular with regard to pre-contractual information and the right to withdrawal. Yet a large number of consumers and SMEs are still not aware of the directive’s specific provisions (i.e. recitals and articles of the directive) because the legislation is too complicated and technical for the consumer. Training initiatives and measures for disseminating the substance of the Directive and the rights deriving from it are deemed necessary. In December 2016, the Commission has launched, upon initiative of the IMCO Committee of the European Parliament, a pilot project for training of SMEs on EU consumer law which aims at considerably increasing the awareness of traders about their obligations and the corresponding consumer rights.

6.1.1.1. Consumers' awareness of CRD provisions Consumer associations responding to the survey reported in the majority of cases a low level of awareness among consumers of the CRD provisions, and only 4% noted that the level of awareness was high. In fact, while consumers seem to have a good awareness of the right of withdrawal, exceptions from this right and specific rules on the right of withdrawal from digital content contracts were found to be the provisions with very low level of awareness. In particular, the consumers that were consulted through the CRD survey showed a high/moderate level of awareness of the right of withdrawal (which was one of the 5 key rights highlighted during the 2014-2016 Consumer Rights Awareness Campaign): this same result is confirmed by the survey conducted in the ex-post evaluation of the awareness campaign. In the survey consumers were also tested as regards awareness of the CRD provision on inertia selling under Article 27, according to which the consumer is not obliged to give any consideration to goods or services in case of unsolicited supplies prohibited by the UCPD. The awareness test showed that consumers are only partly aware of their right in case of inertia selling. The responses were split almost equally between respondents stating that consumers are not obliged to pay the invoice provided that they return the product, and respondents stating, correctly, that consumers are not obliged to pay the invoice nor to return the product. Very few consumers responded that consumers are obliged to pay when receiving unordered products. The provisions for which the lowest level of awareness was reported in the CRD survey were the pre-contractual information requirements on digital content, the rules on the right of withdrawal for digital content, the exemptions from the right of withdrawal, and the rules on delivery and the passing of risk. 6.1.1.2. Traders’ awareness of CRD provisions The CRD survey asked trade associations about the level of awareness of obligations by traders. Over 70% of respondents indicated either a high or a moderate level of awareness. Interestingly, in their opinion, traders are more aware of the CRD than of national legislation. Right of withdrawal and pre-contractual information requirements for distance and offpremises contracts are the provisions trade associations think traders are most aware of. The provisions that the trade associations consider traders to be least aware of are those concerning digital content. Consulted traders confirmed such low level of awareness on digital content rules: only 13% of traders recognised that changes had been made in the legislation relating to extending information obligations and the right of withdrawal to digital content, in comparison with 65% who acknowledged that changes had taken place in respect of pre-contractual information requirements for distance and off-premises contracts. The CRD study concludes that this could reflect the fact that many traders responding to the survey were not digital content providers, but it could also reflect the fact that digital content is a rather new area which has been disciplined for the first time at EU level through the CRD. 6.1.2. Problems with interpretation According to the survey and the online public consultation, several stakeholders have identified problems with the interpretation of specific CRD provisions. A lack of clarity concerning interpretation, as also highlighted in the "Awareness" section above, could lead to non-compliance and undermine the effectiveness of the CRD. Several problems concerning interpretation have been addressed in the CRD Guidance. The CRD Guidance was adopted in June 2014 following consultations with Member States' authorities in charge of the transposition and enforcement of the Directive, industry and consumer stakeholders. The CRD Guidance aims to help national authorities and courts to apply the Directive in a uniform and consistent way, providing guidance on the Directive's key concepts and provisions. It also includes practical examples that show how the Directive should work. Several respondents to the online public consultation commented on the added value of the interpretative guidance. The CRD guidance was generally found to be very helpful in providing practical examples as to how the Directive should apply and in clarifying grey areas in relation to its intended scope. Nevertheless, respondents identified certain provisions as particularly problematic. Stakeholders have indicated problems concerning the definition of the 'basic rate' (Article 21), which is not defined in the CRD explicitly. The CRD Guidance clarifies that the Article requires traders to ensure that the consumers do not incur charges that exceed the normal costs which the consumer would incur for calling a standard (geographic) fixed or mobile number that is not subject to any special tariff regime. In its judgment of 2nd of March 2017 the Court of Justice confirmed that "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." The clarification provided by the Court, and confirming the interpretation included in the CRD Guidance, will avoid risks of non-compliance in future, ensuring the full effectiveness of the concerned CRD provisions. Concerning the inclusion of digital content contracts provided without the payment of a price, the CRD Guidance takes the position that free digital content should be covered by the scope of application of the CRD since, contrary to the definition of sales and service contracts (Articles 2(5) and (6)), the Directive does not mention 'payment of a price' as a requirement for the supply of public utilities and online digital content. This issue had been discussed during the transposition workshops and all Member States, except for two, have included 'free' digital content contracts in their CRD transposition laws. Within the REFIT Stakeholder Group, a number of business and consumer stakeholders have however indicated that there is, in their view, a lack of clarity on the precise scope of application as regards contracts on digital content provided for free or against data. As further explained in section 6.4.3, there could be a case for clarifying the text of the CRD on this point, in order to provide more legal clarity and ensure that the Directive is fully and correctly applied. It was also pointed out that there is a certain lack of clarity as regards the distinction between a digital content contract and a contract for paid online services. Such lack of clarity raises concerns about the rules that shall apply in concrete cases. The CRD study suggests that the lack of clarity regarding the distinction may help to explain why, in the mystery shopping experiment, the level of compliance with information requirements on the right of withdrawal for digital content was particularly low; this may also explain, in the contractors' view, why traders are reluctant to inform consumers about the exception under Article 16(m), whereby the consumer does not have a right to withdraw from the digital content supply if the performance has begun with his prior express consent and acknowledgment that, by accepting to have the performance starting, he no longer has the right to withdraw. The above difficulties with regard to the distinction between digital content and online services deserve further investigations with a view to a possible follow-up action, having regard to ensure consistency with the proposal for a Directive on contracts for the supply of digital content (DCDP). Concerns were also raised as to the clarity of the notion of outside the 'business premises' in off-premises contracts (Article. 2(8)) in case of exhibitions and trade fairs. In particular, as explained in Recital 22, 'business premises' means the trader's permanent or 'usual basis' of business in whatever form, including when used on a seasonal basis. The CRD Guidance indicates that contracts concluded with a trader at, for instance, a market fair which takes place regularly and lasts over a specified period of time, are likely to be on-premises contracts. In contrast, if the trader uses spaces accessible to the public, such as streets, shopping malls, beaches, sports facilities and public transport on an exceptional basis, i.e. once or occasionally and for a short duration in a given location, the contracts concluded with consumers are likely to be off-premises contracts. In this respect, different stakeholders have pointed to the difficulties of assessing what is exactly meant by 'usual basis' (how frequent) in the absence of specific references. This may lead to uncertainty on the part of traders in determining whether their activities are carried out on or offpremises and, therefore, what rules they have to comply with.

Stakeholders also reported difficulties in assessing the moment from which the 14-day cooling-off period starts as regards contracts containing elements of both sales and services contracts. For such contracts the CRD Guidance indicates Article 2(5) as relevant, since it defines a sales contract also as "any contract having as its object both goods and services"; consequently if a contract's main purpose is the transfer of ownership of certain goods, it should be classified as a sales contract even if it also covers related services provided by the seller. Hence, the starting point of the withdrawal period would be "the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the goods" under Article 9(2)(b). However, difficulties in interpreting the notion of mixed purposes contracts and in assessing the main purpose of a contract have been raised by different categories of stakeholders in the consultation process of this evaluation. Stakeholders highlight the practical difficulties of calculating the diminished value of the returned goods (Article 14(2)), particularly in the textiles, electronics and electric products sectors. Factors that affect the calculation include possible disagreements between the consumer and trader as to how extensively the good is used. Given the consumer preference for brand new goods, traders often viewed the returned goods as having negligible value. This issue is further discussed in the "Efficiency" chapter. Dutch stakeholders raised specific concerns as regards the application of Article 27 of the CRD (inertia selling) to water supply. In particular, they reported that two Dutch first instance courts in recent judgments stated that, under Article 27 of the CRD, a consumer who had moved in a new home and used water without having informed (or concluded a contract with) the water supply company is not obliged to pay for the water used in the absence of a contract. Dutch water suppliers seem however to be obliged, under national law, to supply water to households and a court order seems necessary for them to stop doing so. It should be underlined that Article 27 of the CRD exempts consumers from the obligation to provide any consideration in case of unsolicited supply of products prohibited by Article 5(5) and point 29 of Annex I of the UCPD. Prima facie, the fulfilment of a legal obligation cannot be regarded as prohibited "inertia selling" in the sense of point 29 of Annex I of the UCPD, and therefore the remedy provided under Article 27 CRD would not apply under such circumstances. Furthermore, some concerns were raised regarding the application of the CRD provisions to online platforms, particularly concerning the assessment of whether platforms can be qualified as traders under the CRD and are therefore subject to comply with the pre-contractual information obligations thereof. 6.1.3. Compliance by traders One indicator of compliance analysed in the CRD study is the number of consumer complaints and the aspects raised in those complaints; the limits of the available data do not allow definitive conclusions, but emerging trends may constitute a valid proxy for the orientation of the actions of awareness and enforcement. Amongst the reasons for complaints to the ECCs by consumers on cross-border purchases, the right of withdrawal was the most reported in the CRD survey, with 79% of the ECCs stating that consumers had complained often about the right of withdrawal. The second most mentioned reason for complaints was reimbursement, followed by delivery and passing of risk. Available data from the ECC-Net database suggests that the greatest numbers of complaints concerning the CRD are related to product and service issues, over third of which related to unsolicited supply, followed by complaints related to the delivery. Data from the harmonised complaints and enquiries database of the Commission also show that the greatest number of complaints that can be related to the CRD concerned the right of withdrawal, followed by lack of information. Complaints concerning delivery of goods and provision of services and indication of price rank the highest; however, available data does not allow concluding that these always represent a complaint related to a CRD provision. Consumers were asked in the CRD survey about different aspects of compliance by traders. Most of the responses highlighted issues related to compliance with the right of withdrawal; fewer consumers highlighted issues with formal requirements and fees. In the on-line public consultation, 47% of consumer respondents reported that they had experienced problems in dealing with traders in the past year. The most frequently reported problem was that the trader had not provided key information. The majority of consumers who had experienced problems reported not having managed to solve their most serious problem at all. 25% managed to solve their problem at least to some extent and 18% managed to solve it fully. 6.1.3.1. Compliance with pre-contractual information and formal requirements In order to assess compliance with the different information requirements, the CRD survey asked consumers how much information they receive concerning the different aspects covered in Articles 5 and 6 CRD. Overall, the results match with the results of the mystery shopping study, i.e. consumers received a fair to a great amount of information about the characteristics of the product and the accepted means of payment, although with differences at country level. Out of the consumers responding to the online survey, 38% stated that they did not receive much information about the trader. This was also found in the mystery shopping carried out within the Consumer market study for the Fitness Check, where information on how to contact the trader was, on average, found to be less available, particularly for the provision of paid digital content. The CRD sweep also found incomplete or unclear details about the trader in 34% of websites checked. Additionally, consumers did not receive much information about accessing out of court complaint and redress mechanisms. The mystery shopping also found that consumers felt quite well informed about digital content interoperability and functionality and found the information clear, while they felt relatively less informed on other characteristics of the digital content, such as, for instance, whether an internet connection was required and software updates available. In 2014 the Commission coordinated the "sweep on commercial guarantees in consumer electronics", within which the CPC authorities checked in total 437 websites selling consumer electronics . 54% (235) of these websites were found to be non-compliant with EU consumer law regarding information obligations about the statutory and commercial guarantees. The reminder of the existence of the legal guarantee of conformity for goods before the consumer is bound by a distance contract – as required by Article 6(1)(l) of CRD – was found to be lacking in 174 websites (ca. 40%). This sweep in particular raised discussions regarding the place where this reminder of the existence of the legal guarantee has to be provided on a website. In the Commission services' views, if traders provide pre-contractual information only in the terms and conditions on their website, this is not in compliance with Article 6(1). Furthermore, the findings of the mystery shopping provided insights into the traders’ compliance with the CRD pre-contractual requirements regarding the conclusion of distance contracts. In particular, it was found that, before placing their orders, almost all mystery shoppers were clearly informed about the total price of the product, while 54%-70% of mystery shoppers were informed about its main characteristics. As regards compliance with Article 8(2) of the CRD, whereby traders are required to make the consumer aware, in a clear and prominent manner, of the fact that his order implies an obligation to pay, a dedicated order confirmation button was found to be present in almost all mystery shopping cases, although with some differences at country level. The use of this visual tool was found to be effective, given that most mystery shoppers evaluated its use as (very) clear and indicated that they clearly understood that pressing the button would finalize the purchase. In almost all mystery shopping cases, there were no extra charges based on the method of payment. Dependent on the product type, mystery shoppers were relatively often offered selectable options that would cost them more. However, only about one fifth of the investigated traders pre-ticked these selectable options. In general, when additional cost applied, for instance for the selected payment means, or for the delivery, consumers could easily get the relevant information. 6.1.3.2. Compliance with precontractual information requirements and rules on the right of withdrawal oCompliance with information requirements on the right of withdrawal

As regards specific pre-contractual information requirements on the right of withdrawal, the trader must provide clear and comprehensible information before the consumer is bound by a distance contract. The results from the mystery shopping show, however, that this information is often missing, with some differences depending on the type of contract as shown below. For tangible goods, traders have to specify the right to withdraw from the contract within 14 days after delivery. This was done by about half of the investigated traders. However, consumers could easily found information on return procedures in case of sales contracts, and despite the lack of information they found the withdrawal procedures satisfactory. However, although traders grant consumers their right to withdraw, the lack of information on withdrawal can prevent consumers from exercising their rights. Traders of digital content have to inform consumers that they have a right to withdraw from the contract before downloading the content and that they lose this right when the performance of the contract has begun with their express consent under Article 16(m). The mystery shopping run within the Consumer market study for the Fitness check showed that only 23% of traders for music downloads, 33% of the traders offering one-off purchases of security software and 44% of the traders of security software subscriptions provided this information. The interviews with traders performed for the CRD study confirmed such finding, showing that 42% of consumers were not notified that they would lose their right of withdrawal if they started downloading or streaming digital content. The mystery shopping task also revealed that withdrawal forms were quite difficult to find and in 25% of all online shops tested for tangible goods, such information was not available. This was also reflected in the responses given by consumers to the CRD survey, where 59% of consumers stated they were not given access to a withdrawal form. This also applied to digital content. According to the mystery shopping, half of all software traders (52%) did not provide withdrawal forms. The 2015 CRD sweep carried out by the CPC network also found similar results across all type of contracts. Irregularities were confirmed in 436 (63% of a total 697) cases, with websites missing or providing unclear or incomprehensible information on the right of withdrawal from a transaction. For example, websites did not contain a relevant withdrawal form while it was their legal obligation to do so, or did not inform the consumer about the exact number of days available to him/her to withdraw from an online transaction. oCompliance with rules on withdrawal Concerning refunds, the mystery shopping results show that most cases led to a full reimbursement. This number was, however, higher for tangible goods and security software than for music downloads. Refunds were almost always given in the form of money. For tangible goods, the delivery costs were only reimbursed by half the traders. The online public consultation provided some opinions from the traders’ perspective on the right of withdrawal and compliance. The CRD study mentions the contribution from one stakeholder highlighting that the exceptions to the right of withdrawal may be difficult to apply in reality, in particular those relating to digital content. According to one trader, informing the consumer that he would lose their right of withdrawal can “worsen the shopping experience”. Out of the respondents to the CRD survey who indicated having faced difficulties in exercising their right of withdrawal, the majority signalled that they had difficulties in contacting the relevant traders to notify them about their decision to withdraw; this issue is also confirmed by the consumer associations in the interviews, particularly with regard to traders using social media platforms to sell products. 6.1.3.3 Compliance by sector By sector, the level of compliance also varies. Interviews performed for the CRD study have revealed a lack of compliance in respect of online subscriptions and monthly contracts for mobile phones whereas a review of the literature has found issues of compliance with the energy sector. The EESC, in its evaluation of the CRD, also identified compliance issues among traders to prevail in a few particularly problematic sectors such as distance sellers (telephone and catalogue), energy (gas/electricity) and telecommunications sectors. Other cases noted by the CRD study refer to the formal requirements for contracts by telecommunication companies offered by phone (in line with Article 8(6)). According to the CRD sweep, irregularities in compliance occur across different sectors, types of retailers and types of contract (sales of goods, service provisions or public utilities/digital content provisions). The latest Consumer Scoreboard, however, has concluded that the largest differences in market performance between EU countries are found on the markets for electricity services, water supply, railway transport, mortgages and mobile telephone services. These markets appear to be particularly badly performing in those EU Member States where they face limited cross-border competition, insufficient structural reforms and absence of effective enforcement also of consumer protection rules . The review done in the CRD study of the complaints dealt with by the ECC-Network has also shown that almost one in every two complaints relates to the sectors of recreation and culture (24%) or transport (20%); the rest of the complaints are however spread amongst a wide range of sectors, with 17% of all cases labelled under the category of 'miscellaneous goods and services'. Lack of compliance in markets having often an oligopolistic structure may point to a lack of enforcement or insufficient disincentives in terms of penalties for big companies operating in such markets. In 2015-2016 the CPC network carried out a coordinated enforcement action to improve consumer information in the car rental sector : this joint enforcement action targeted large businesses representing 65% of all private car rentals in the EU. A dialogue was set up between the CPC authorities, led by the UK Competition and Markets Authority, and the top five car rental companies operating in the EU to ensure that their practices comply with EU consumer law, including the CRD (right of the consumer, pursuant to Article 6(1)(e), to be informed on the total price and charges of the service; right of the consumer, pursuant to Article 6(6), not to bear any additional charges of which the trader has not duly informed at pre-contractual stage; right of the consumer, pursuant to Article 22, to get reimbursed of any extra-payment which the trader may have imposed through pre-ticked boxes or without otherwise seeking the consumer's express consent). Thanks to this action, the companies concerned aligned their car rental practices to EU consumer law requirements, by improving their information policies and making their terms and conditions fairer. 6.1.4. Administrative and judicial enforcement In relation to administrative enforcement, the survey asked the national competent authorities about the number and type of enforcement actions brought in their Member State for breaches of national rules transposing the CRD: based on their replies, it appears that the level of enforcement activities varies significantly across the Member States. According to the CRD survey, stakeholder views on the enforcement abilities of the national authorities were rather mixed. Furthermore, the online public consultation asked about the effectiveness of various consumer redress and enforcement mechanisms in ensuring the enforcement of EU consumer and marketing law, including the CRD. Most public authorities (61%) and business respondents (57%) agreed that injunction orders issued by authorities or courts to stop infringements of consumer rights are very effective or rather effective. In contrast, 42% of consumers and only 20% of consumer associations agree that such a mechanism is effective. A few respondents stressed that the differences in the way in which the rules were enforced in different Member States could lead to inequalities and to traders being unwilling to sell their goods and services cross-border. As indicated in the CRD study, since the CRD only came into force in June 2014, it appears that, so far, only a limited number of CRD-related cases have been decided by national judges or administrative authorities. Based on data available to the Commission's contractors in relation to the on-going creation of a unified Consumer Law Database, a total of 90 CRDrelated cases decided by national courts or authorities have been so far identified. Out of them, no less than 35 come from just 4 Member States (IT 14 cases, DE 9, LV 8 and NL 4). The survey asked national authorities for their views on the specific CRD provisions which are most likely to require enforcement action. 83% of the national authorities took the view that pre-contractual information requirements for distance and off-premises contracts are likely to require enforcement actions. The analysis of the 90 CRD-related cases identified in the context of the setting up of the future Consumer Law Database shows that a significant percentage of such cases relates to Article 6 CRD on pre-contractual information requirements for distance and off-premises contracts. The vast majority of identified cases concerned the rules on the right of withdrawal (85, out of which 30 related to Article 9). 22 of the 90 identified cases related to Article 8 (formal requirements for distance contracts), whereas in relation to Article 2(1) and (2), 9 cases were identified (definitions of consumer and trader). To date, there have been only a few cases (7 in total) in respect of Article 19 (fees for the use of means of payment), Article 20 (passing of risk), Article 21 (right of the consumer to contact the trader, in relation to the contract, at a basic telephone line rate) Article 22 (ban on "pre-ticked boxes"), and Article 27 (inertia selling), these latter mainly concern energy companies in Italy.

6.1.5. Penalties Article 24(1) stipulates that Member States shall lay down the rules on penalties applicable to infringements of the national provisions implementing the CRD and shall take all measures necessary to ensure that they are implemented. The penalties provided must be effective, proportionate and dissuasive. The transposition check carried out by the Commission services has highlighted some issues concerning the level of penalties and also the fact that penalties do not always cover breaches of all CRD relevant provisions. To this regard, bilateral dialogues with concerned Members States continue in order to ensure the full compliance with the Directive and avoid inconsistencies that may hinder its effectiveness. Moreover, the huge divergence and overall relatively low level of penalties imposable at national level might also be considered through legislative intervention, as further explained below. As also highlighted in the Fitness Check evaluation, there is considerable variation concerning the public enforcement of EU consumer law due to institutional diversity, distribution of powers between central, regional and local authorities, funding, staffing and powers of consumer protection authorities etc. The penalties imposed by national authorities generally take the form of administrative fines; however, some Member States, for example the UK, Ireland and Germany, also make certain infringements subject to criminal sanctions. However, criminal sanctions are generally reserved for serious infringements, for instance where breaches of the CRD were part of a larger pattern of fraudulent or misleading behaviour by traders. The level of penalties currently available to the consumer enforcement authorities varies enormously. Some national authorities are able to impose higher penalties, especially for breaches that constitute market distorting behaviour. However, there is a lack of evidence concerning the impact of the variance in penalties on the level of compliance by traders which needs to be further investigated in the light of a possible follow-up to the Fitness Check and CRD evaluation. Some national authorities responding to the CRD survey were concerned that the maximum level of penalties they are able to impose is not sufficient to deter from non-compliance. Nevertheless, instead of pointing at the level of penalties, the findings of the consultation carried out by the CRD contractor highlighted the lack of awareness by traders about the content of the CRD as the main reason for non-compliance. When asked for further details as to the level of penalties, information provided by national authorities indicates that the level of penalties varies significantly, ranging from modest fixed sums to high penalties, which are either set at a high fixed sum or connected to the trader's annual turnover, whichever is highest. As examples of lower penalties, the national authority in Bulgaria can issue penalties ranging from 100-3000 BGN (approx. 51-1535 EUR) and in Lithuania from 144-1448 EUR. As examples of higher penalties, the national authority in the Netherlands can issue penalties up to 900 000 EUR or 1% of the annual turnover, in Cyprus up to 200 000 EUR or 5% of the annual turnover and in Latvia up to 100 000 EUR or 10% of the annual turnover. In Italy the penalties can be up to 5 million EUR. Nevertheless, even if a Member State features a high maximum penalty, the actual penalty issued might not be as significant. As was emphasised by Swedish and Irish respondents, the level of penalties are often modest, unless market-distorting behaviour can be identified and proven. For example, in Sweden a maximum penalty of 5 million SEK (512 017 EUR) can be issued, but only for very significant breaches of the CRD with a significant impact for large numbers of consumers. However, the CRD study has also identified several cases in which high penalties were issued. For example, in 2015 a penalty of 6 million EUR was issued by the AGCM, the Italian Competition Authority, on seven energy producers in Italy for violating the rules set out in the Italian Consumer Code concerning the CRD and the UCPD. In conclusion, the information gathered on the level of penalties available to national authorities for sanctioning traders' breaches of obligations stemming from the CRD has revealed considerable differences in the transposition of Article 24 which requires "effective, proportionate and dissuasive" penalties to be established in the Member States. This may affect the effective implementation of the CRD across all Member States, in particular in cases cross-border operations which breach CRD provisions. 6.2. Efficiency 6.2.1. Costs and benefits – general analysis Efficiency considers whether the Directive has achieved its objectives and outputs at a reasonable cost. The evaluation assessed the following questions: ·What are the costs and benefits (monetary or non-monetary) associated with the application of Directive 2011/83/EU in the Member States? ·What are the burden and benefits for businesses arising from obligations on traders under the Directive? ·Which market sectors are affected by the provisions of the Directive? The assessment should identify which sectors have adapted more efficiently to the new requirements and which ones are characterized by more frequent breaches of the Directive's provisions. ·What are the specific challenges to SMEs, in particular micro enterprises, with respect to the implementation of the Directive? ·What, if any, specific provisions in the Directive can be identified that make a cost-effective implementation more difficult and hamper the maximisation of the benefits? The evaluation has focused on costs and benefits associated with the application of the Directive, highlighting those provisions that make a costeffective implementation more difficult, which might hamper the maximisation of the benefits and create unnecessary or excessive regulatory burden. The evaluation has also addressed specific challenges to SMEs, in particular micro enterprises, with respect to the implementation of the Directive. The contractor for the CRD study has not been able to gather quantitative estimates of costs and benefits of the implementation of the CRD, except from anecdotal examples. In particular, stakeholders consulted in the framework of the CRD study could not provide quantitative estimations on the impacts of the CRD as they could not establish causality between increase in sales and CRD, on the side of benefits; yet, some examples of costs related to specific provisions have been provided within the study. In addition, some traders were hesitant to share data that they regarded as commercially sensitive. Furthermore the study concludes that the literature review has been sparse on the costs and benefits due to the short time since the Directive has been transposed. In particular, there is not available quantitative or qualitative data as regards possible decrease of compliance costs for businesses in cross-border trade, or availability of wider range of goods and services at lower prices for consumers. Lack of quantitative data made a comparison with and analysis of the impacts anticipated in the Impact assessment (IA) of the original proposal difficult. In addition, the contractor had difficulties to establish the baseline, which further impeded the comparison. Thus the analysis is based on qualitative information obtained in the framework of the CRD study through different available sources, such as the interviews and the online survey carried out as part of the stakeholder consultation of the CRD study, the European Economic and Social Committee's Information Report on the CRD, the online public consultation in support of the Fitness Check and the CRD evaluation, meetings of the Fitness Check stakeholder group and submissions of stakeholders. The limited available data does not allow definitive conclusions about the level of costs faced by businesses in ensuring compliance with the new Directive. All surveyed businesses were reluctant to provide financial estimates of such costs, and there was scarce monetary evidence available. However, according to the different evidence sources the CRD study has considered, traders reported burdens deriving from specific provisions. In particular, the CRD study showed that the Directive has generally been found to be beneficial by consumers and their associations, while traders' view were divided, with a higher number of respondents considering that the benefits of the Directives do not outweigh the costs related to the CRD implementation, especially for SMEs. The greatest costs are attributed to the pre-contractual information requirements and the right of withdrawal even though they were not quantified.

6.2.2 Impacts on traders In the CRD survey traders were asked about the different types of benefits that may have arisen from complying with the rules laid down in the CRD. Almost one third of the traders responding did not identify any benefits. Among reported benefits, traders mainly referred to the fact that consumers whose rights are respected come back and shop again with the same trader, and bring or attract other consumers. This was also confirmed in the online public consultation, where a large majority of companies and business associations were of the view that the benefits from complying with consumer protection rules are that consumers whose rights are respected come back and bring/attract other consumers, whereas consumers whose rights are not respected discourage other consumers (damage to reputation). In detailed responses to the CRD survey, traders highlighted that the Directive had improved customer service and after-sales care within competitive markets, which in turn had helped to build consumer trust. However, some traders felt the CRD was better suited to larger retailers/traders who can build in such requirements into their processes and policies more easily, and that small traders were already too burdened by legislation and having to compete on a small profit margin in competitive markets, which can easily be eroded if there is an increase in the percentage of consumers that exercise their right of withdrawal. As regards specific provisions with a positive impact, the majority of traders in the CRD survey pointed to the consumers' right to get adequate information about the goods and the service. This was found in the CRD study to be in line with the findings of the online public consultation, where CRD provisions such as the right to get information about goods and services were regarded as beneficial by the majority of respondents in all stakeholder categories, together with the right of withdrawal. Although seen as beneficial, a majority of traders in the online survey agreed that pre-contractual information requirements had greatly or just increased the costs, followed by formal requirements (55%) and reimbursement policies stemming from the right of withdrawal (44%). Such data should also be read in conjunction with the findings of the Fitness Check evaluation regarding overlaps of information requirements under EU consumer and marketing law concluding that there is a need to consider reducing the information requirements applying at the advertising stage provided under Article 7(4) UCPD, in view of the fact that traders must provide the same and more detailed information at the pre-contractual stage under the CRD. Trade associations responding to the CRD survey also considered pre-contractual information requirements for distance and off-premises contracts the provisions with the greatest negative impacts on competitiveness, both on domestic and cross-border trade. On the other hand, however, rules on reimbursement, inertia selling and exceptions from the right of withdrawal were viewed by trade association as having strengthened traders’ competitiveness in both domestic and cross-border trade. Through the interviews performed within the CRD study, it was suggested that the main benefits in this regard relate to increased regulatory certainty. A high number of respondents to the CRD survey were unable to say whether the requirements to provide information about digital content had been beneficial to their business, but this may reflect the fact that many traders responding to the survey sell goods rather than digital content. In this respect, business associations taking part in the online public consultation were also not convinced about the benefits to consumers of the right of withdrawal for downloading or streaming of digital content and of the right to get information about its functionality and interoperability. Only a few national authorities responded to the survey. These reported that they had received mostly negative feedback from traders or feedback that there was no impact on the traders' competitiveness. When traders were asked to compare the costs and the benefits of the CRD, their opinions were quite divided. However, a higher number of respondents thought that the costs exceeded the benefits. Traders’ views on benefits and costs (CRD study – Section on Efficiency) The EESC report on the evaluation of the CRD concluded that, according to roughly a third of respondents, the compliance costs for business have increased since June 2014. For 20% of respondents, the costs have stayed the same. More than a third did not know. The consultation undertaken for the CRD study has highlighted costs to traders from particular provisions of the Directive, such as pre-contractual information and formal requirements, the right of withdrawal and rules on reimbursements. According to the general Eurobarometer data, in 2016 a large majority of traders agreed that in their own country compliance with consumer legislation is easy (71%) and that the costs of compliance are reasonable (66%). When it comes to traders operating cross-border, 55% of them agreed that compliance in other EU countries was easy and 48% agreed that the related costs were reasonable. 6.2.2.1. Impact of pre-contractual information requirements As previously highlighted, according to the CRD study a majority of traders and trade associations think that pre-contractual information requirements have increased their costs. They report initial one-off costs in ensuring CRD compliance, such as familiarisation costs with the legislation, management time to check the requirements and to ensure compliance which may require getting external legal advice, updating websites also by the means of web designers, and taking corresponding actions to update internal processes and procedures relating to the transaction process, e.g. delivery, returns and right of withdrawal duration. However, these are likely to be costs incurred by traders only at the beginning of the compliance process; furthermore, when asked about cost estimates, these could not be provided. Some of the interviewees in the CRD study felt that the pre-contractual information requirements were imposing an unnecessary burden on traders. This burden was also stressed within the REFIT stakeholder group with particular regard to overlapping information requirement under different EU consumer and marketing directives. Similarly, in the online public consultation, a majority of respondents in all categories agreed that information requirements currently included in the Unfair Commercial Practices Directive, Price Indication Directive and Consumer Rights Directive should be regrouped and streamlined; the same conclusion was reached in the workshop on consumer information held during the Consumer Summit. Stakeholders consulted for the CRD study also argued that pre-contractual information requirements establish an excessive amount of information that can be overwhelming for consumers and noted that information requirements are not read by the majority of consumers, hence proving a lack of efficiency and effectiveness of concerned information requirements. However, regarding the need to reduce current information requirements, traders could not indicate which specific requirements are deemed unnecessary and burdensome. This might suggest that rather than a problem of excessive information requirements to be reduced - given that the evaluation has not identified particular inconsistencies - it would be more appropriate to improve the presentation of information; this is confirmed by the positive results of best practices in some sectors simplifying the way information is presented.

The CRD study reported concerns among a few stakeholders that the amount of information required is sometimes felt as disproportional to the product being offered, particularly in respect of low-value consumer goods. Consulted stakeholders indicated that as regards off-premises contracts, traders face costs not only because of a substantial increase of and a high level of detail in the information requirements under the CRD, but also because information must be provided on paper or, if the consumer agrees, on another durable medium (Article 7(1) CRD). 6.2.2.2. Impact of the right of withdrawal and reimbursement procedures Different stakeholders pointed to unintended and unexpected effects from the application of some CRD rules that may deserve further investigation in light of follow-up actions, since it has not been possible to re