EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 8.10.2008 
SEC(2008) 2544 
  
COMMISSION STAFF WORKING DOCUMENT 
 
accompanying the 
Proposal for a  
 
DIRECTIVE OF THE EUROPEAN PA RLIAMENT AND OF THE COUNCIL 
 
on consumer rights 
 
IMPACT ASSESSMENT REPORT 
{COM(2008) 614 final} 
{SEC(2008) 2545} {SEC(2008) 2547} 
 
EN 2   EN 1. I NTRODUCTION  
Lead DG: Health and Cons umer Directorate-General 
Other services involved: no othe r service involved in the legisl ative proposal. The Health and 
Consumer Directorate-General did however liaise with relevant services through the Impact 
Assessment Interservice Steering Group.  
Agenda Planning and CLWP: th e legislative proposal was fo reseen by the Commission 
Agenda Planning for 2008, with reference 2008/SANCO/001. 
1.1. Executive summary 
The problem addressed in this impact assessment is the incomplete business to consumer 
(B2C) internal market. Consumers are not yet reaping the benefits of a fully integrated retail 
market with increased choice and lower prices . There are several practical and structural 
barriers to the proper functioning of the B2C inte rnal market, such as, for example, linguistic, 
logistical and regulatory barriers.  
A significant regulatory barrier is that cr eated by the fragmentation of the national laws 
regulating consumer transactions. These laws transpose a number of directives, constituting the EU Consumer Acquis. The main cause  of the fragmentation is the minimum 
harmonisation clauses contained in the consumer directives. These clauses explicitly 
recognise the right of Me mber States to maintain or adopt stricter consumer protection rules 
in their national law. As a consequence Memb er States have made extensive use of the 
possibility to ensure a higher level of protection for consumer s in their country. The problem 
of legal fragmentation is exac erbated by two more issues: the fact that the EU regulatory 
framework is not perfectly coordi nated; and the fact that some of the rules in the Directives 
are outdated; these two issues have been pa rtly addressed by national regulators; this 
piecemeal uncoordinated approach has generated more fragmentation at EU level. This 
impact assessment focuses exclusively on the issu es pertaining to the effects of fragmentation, 
notably on consumers and businesses.  
The internal market effects of the fragment ation are twofold. Firstly, they result in a 
reluctance by businesses to sell cross-border to  consumers. The effects of the fragmentation 
are felt by business because of the conflict-of  law rules, and in particular the Rome I 
Regulation, which obliges traders not to go below the level of protection afforded to foreign 
consumers in the consumer's home country. A tr ader wishing to sell cross-border into another 
Member State will have to incur legal and othe r compliance costs to make sure that he is 
respecting the level of consumer protection in that country. Such costs are eventually passed 
on to consumers or, worse, businesses refuse to  sell cross-border. In both cases consumer 
welfare is below the optimum level.  
Secondly, the effects of fragment ation translate into low levels  of consumer confidence in 
shopping cross-border. The shortfalls in cons umer confidence have a number of causes 
including the insufficient knowledge  by consumers of their rights,  their perception that they 
would be less protected if they buy from forei gn traders and that enforcement and mediation 
would be more difficult to carry out abroad. This consumer perception problem is currently 
difficult to solve. Indeed, the legal fragmenta tion and the related uneven level of consumer 
 
EN 3   EN protection across the EU make it difficult to conduct pan-European education campaigns on 
consumer rights, mediation or other altern ative-dispute resolution (ADR) mechanisms. 
Based on the outcomes of extensive consultati on exercises, different policy options (POs) 
ranging from status quo to far-reaching legisl ative proposals have been constructed. Some 
POs, such as the introduction of a dual regime fo r domestic and cross-bo rder B2C transactions 
have been discarded at an early stage. Ind eed such options have not been supported by the 
great majority of stakeholders and they woul d run against the key objectives of the Review. 
The results of the analysis indicate that the st atus quo (PO 1) with the resulting fragmentation 
would have negative effects on the internal market. The non-legislative measures (PO 2) 
consisting of awareness-raising and self-regul ation would have minor positive effects on 
consumers, but in practice the regulatory fragmentation would mitigate their benefits for businesses; the negative aspects of fragmentation would not be remedied. PO 2 could also be 
implemented as an add-on to legislative options  3, 4 and 5 with the re sult of reinforcing the 
benefits of these options.  
The legislative changes introduced in POs 3, 4, and 5 are based on full harmonisation. These 
policy options can be depicted as  three concentric circles. PO 4 comprises PO 3 together with 
some other regulatory issues. PO 5 comprises PO 4 and some other regulatory changes.  
The four legislative changes proposed in PO 3 would bring limited positive effects in terms of 
better functioning of the internal  market and better regulation. The benefits would be limited 
to the clarification or "tidying-up" of the legislation.  
The medium legislative changes encapsulated in policy option 4 include a total of 20 
legislative changes (i.e. the four changes of  PO 3 + sixteen additional changes), which 
amongst others would (i) define delivery and determine who bears th e risk of loss or 
deterioration, in particular when the goods are shipped to th e consumer, (ii) adjust and 
simplify the scope of the di stance and off-premises rules in order to remove some 
inconsistencies and to fill in the current gaps , (iii) harmonise the information requirements 
and the rules on the right of wit hdrawal in distance and off-premis es contracts, (iv) harmonise 
the order of remedies (i.e. repair and replac ement before reduction in price and contract 
rescission) in the case of def ective goods and (v) introduce harm onised black and grey lists of 
unfair contract terms at EU level instead  of the current pu rely indicative lists
. 
Benefits brought by PO 4 are overall expected to outweigh the costs. The proposal would 
strongly contribute to the bette r functioning of the internal ma rket through harmonisation and 
streamlining. Harmonisation will improve the f unctioning of the internal market and reduce 
the burden on business wishing to sell cross- border. Simplification of the regulatory 
framework will make it easier for traders to co nclude cross-border contracts. Whilst in most 
cases the effects of the policy option are the same for all businesses, in a few cases the changes proposed would be particularly be neficial for SMEs. The option would overall 
increase consumer confidence in cross-bord er and domestic shopping, particularly through 
lower prices and better choice for consumers.  The policy option would strongly improve the 
quality of legislation and the le vel of consumer protection legisl ation, particularly in distance 
and off-premises transactions, as it would re move inconsistencies and loopholes by setting 
common rules and definitions. 
The additional legislative change s envisaged as part of PO 5 are far-reach ing proposals (such 
as rules on recurrent defects or on the availabil ity of spare parts) generating administrative 
and compliance costs to businesses which do no t outweigh the benefits to consumers and 
 
EN 4   EN therefore do not fulfil the twinne d objectives of the Review (i .e. reducing business compliance 
costs and enhancing consumer confidence).  
PO 6 combines an internal market clause with either PO 3 (sub-option 1) or PO 4 (sub-option 
2). Such an internal market clause would de rogate from Rome I allowing traders trading 
cross-border to choose freely the law appl icable to the contract. During the public 
consultation process, the Internal Market clau se was supported by bu siness, but met with 
considerable opposition from the great majo rity of Member States and consumer 
organisations.  
While this policy option would remove regulatory barriers in the internal market and result in 
a significant reduction of the burden for businesse s, it would transfer the problem of legal 
uncertainty to consumers resulting in nega tive impacts on consumer confidence: consumers 
would be subject to different levels of prot ection when they buy from foreign traders. The 
option would create problems for courts and me diators who would have to apply a foreign 
law; it would not improve the quality of the le gislation and would be inconsistent with the 
approach followed by the Rome I Regulation.  
For the reasons outlined above, policy option 4 (m edium legislative change s) is proposed as 
the most appropriate solution to the problems id entified in the review process. Only this 
option would allow us to meet the twinned objec tives of the review which must be seen as 
mutually reinforcing and not an tagonistic: i.e. making it easier  for business to sell cross-
border to consumers and enhancing consumer confidence in cross-bo rder shopping. This does 
not rule out the simultaneous application of non-legislative add-ons identified in PO 2.  
1.2. Organisation and timing 
The legislative proposal for a Di rective on Consumer Rights (Follow up of Revision of the 
Consumer Protection Acquis) was foreseen by the Commission Agenda Planning for 2008, 
with reference 2008/SANCO/001. 
The proposal is included in the Commissi on's simplification rolling programme.  
The review of existing Community legislation re lating to consumer protection (hereafter the 
"Consumer Acquis") was first foreseen in the Consumer Policy Strategy 2002-2006.1 The 
Commission launched the Review of the Cons umer Acquis in 2004 with the Communication 
on European Contract Law and the revision of the Acquis: th e way forward, which outlined 
the need to improve the quality and consistenc y of existing Community legislation in relation 
to consumer contracts.2 
Subsequently, the First Annual Progress Repor t on European Contract Law and the Acquis 
Review - 2005 summarised the progress of the European Contract Law (ECL) initiative and 
the review of the acquis and outlined the review process.3 It also formed the basis for the 
Council Conclusions adopted on 29 November 2005, which welcomed the Review exercise. 
                                                 
1 Consumer Policy Strategy 2002-2006 (COM(2002) 208 final) of 8.6.2002 
2 Commission Communication on European Contract Law and the revision of the acquis : the way 
forward (COM(2004) 651 of 11.10.2004 
3 First Annual Progress Report on European Contract Law and the Acquis Review (COM (2005) 456 of 
23.09.2005 
 
EN 5   EN On 8 February 2007, the Commission adopted the Green Paper on the Review of the 
Consumer Acquis, summarising the Commission' s initial findings and initiating a public 
consultation.4 The consultation period lasted till 15 May 2007. The Green Paper initiated the 
consultation dialogue that is de tailed in the next section. Th e Commission was assisted by an 
external contractor, the Consumer  Policy Evaluation Consortium.  
The Health and Consumer Directorate-Genera l set up an Impact Assessment Interservice 
Steering Group in July 2007. The following services  participated in the Interservice Steering 
Group: the Directorate-General for Competition, the Directorat e-General for Enterprise and 
Industry, the Internal Market and Services Directorate-Genera l, the Directorate-General for 
Freedom, Security and Justice, the Informati on Society and Media Directorate-General and 
the Secretariat-General of the European Commission.  
1.3. Consultation and expertise 
As part of the stakeholder dialogue on the consumer acquis initiated by the Green Paper, the 
Health and Consumer Directorate-General he ld a full-day stakeholder conference on 
November 14, 2007. Its aim was to collect stake holders' practical experiences and views on 
the state of play in respect of EU consumer protection legislation, with  a view to identifying 
regulatory problems, improving the functioning of the EU retail market and discussing 
different issues that had been addressed in the replies to the Green  Paper consultation. The 
conference was attended by almost 200 participants.  
The consultation dialogue and evidence gatheri ng was carried out with the assistance of an 
external contractor, the Consumer Policy Eval uation Consortium (CPEC) . CPEC assisted the 
Commission in analysing the responses to th e Green Paper (more than 300 responses from 
consumer and business associations, Member St ates, the European Parliament, the European 
Economic and Social Committee and groups of stakeholders) and in conducting preliminary 
work on the problem assessment of the impact assessment.5 In addition, CPEC assisted the 
Commission in the analysis of the impacts of the proposals.  
In this context, stakeholders were consulte d extensively from December 2007 to March 2008. 
The consultation yielded important information on the problem definition and assessment of the policy options. Stakeholders' views were in corporated into the definition of the policy 
options. Throughout the stakeholder consu ltation process, the Commission minimum 
standards for stakeholder consultation were upheld.  
On 20 December 2007, two questionnair es (the first one targeted at businesses, the second 
targeted at consumers) were sent out to num erous consumer and busin ess stakeholders by the 
contractor. In addition to the aforementioned que stionnaires, the contractor incorporated the 
results of two Eurobarometer polls commi ssioned by DG SANCO on consumer and retailer 
attitudes. 
                                                
 
4 Green Paper on the Review of the Consumer Acquis (COM(2006) 744 Final of 08.02.2007. The Green 
Paper and the results of the consultation are available at 
http://ec.europa.eu/consumers/rights/cons_acquis_en.htm  
5 Preparatory Work for th e Impact Assessment on the Review of  the Consumer Acquis: Analytical 
Report on the Green Paper on the Review of th e Consumer Aquis submitted by the Consumer Policy 
Evaluation Consortium, 06.11.2007, accessible at 
http://ec.europa.eu/consumers/rights/cons_acquis_en.htm 
 
EN 6   EN More than 20 face-to-face meetings with key business actors were conducted by the 
contractor under the supervision of the Comm ission. These interviews were conducted with 
traders and industry associati ons in January and February 2008. In addition, the Commission 
services met with several industry asso ciations in various  Member States.  
An expert panel comprising legal and economic experts and consumer representatives was set 
up to advise on the policy options and their likely  impacts. The expert panel met twice in the 
course of the impact assessment. 
A full-day stakeholder workshop targeted at businesses was organised on 6 February 2008 
with the purpose of discussing th e effects of changes to EU c onsumer legislation affecting 
companies. More than 40 business representatives attended the workshop.  
A consumer focus group was organised on 13 February 2008 with more than 20 consumers. 
Participants were identified with the assistan ce of the Belgian European Consumer Centre. 
The purpose of the focus group was to assess the impacts of the current consumer protection 
rules on consumer behaviour and to estimate th e effects of the envisaged legislative changes 
on their confidence in  cross-border shopping. 
A one-day workshop was organised by the c ontractor on 29 February 2008 within the 
framework of the European Consumer Consultative Group (ECCG) associating 
representatives of consumer organisations. Th e purpose of the workshop was to discuss the 
effects of changes to EU consumer legislati on affecting consumer protection and consumer 
confidence, particularly in cr oss-border transactions. The E CCG members from Luxembourg, 
Italy, the Netherlands, Germany, Swed en, EUROCOOP and BEUC attended. 
In addition, the Commission se rvices held bilateral meetings with BEUC, the European 
consumers' organisation and BEUC  representatives par ticipated in the c onsumer focus group, 
the expert panel and the ECCG sub-group meeting.  
The Commission held two separate consulta tions on the Distance Selling and Doorstep 
Selling Directives to take stock of the effectiven ess of these Directives in the current market 
place. All interested parties were invited to submit replies to the Commission, respectively by 
21 November 2006 and 4 December 2007.6 
Finally, other DGs were associated in the impact assessment process through the Impact 
Assessment Interservice Steeri ng Group on the review of the acquis. The Steering Group was 
first convened in July 2006 and met six times in the course of the impact assessment.  
1.4. The Impact Assessment Board 
The draft Impact Assessment was submitted to  the Board on 15 May 2008 and discussed at 
the Board meeting of 4 June 2008. The Board issued a favourable op inion on 6 June 2008 
with five main recommendations aimed at clarif ying certain issues and their presentation. This 
has led to the following changes in the text: 
– the problems and their underlying drivers have  been further clarified: paragraph 2.2 
describes in more depth the size of th e problem and the extent to which the 
fragmentation of the legal framework ge nerates costs to business and undermines 
                                                 
6 The outcomes of both consultations are available at http://ec.europa.eu/consumers/rights 
 
EN 7   EN consumer confidence in the internal marke t; paragraph 2.3 presents further evidence 
of cross-border Intern et trade, highlighting the diffe rences between Member States 
and taking into account local isation issues; paragraph 2.4 clarifies the possible causes 
of the price differences between Member States and paragraph 7.1 on monitoring has 
been modified accordingly; 
– subsidiarity issues have been further de veloped in paragraphs 2.7 and 4.2.1 in order 
to explain why a legislative reform appl ying both to domestic and cross-border 
transactions would meet bot h the subsidiarity and propor tionality tests and allow 
simplification and reduction of admi nistrative burdens on business; 
– the relationships between the two major co mponents of the genera l objective (i.e. to 
reduce business reluctance to trade cross- border by decreasing compliance costs and 
to enhance consumer confidence in the in ternal market) have been clarified in 
paragraph 3.1; 
– the assessment of administrative costs has be en refined: The type of costs (one-off or 
recurrent costs) are clearly id entified, as is the degree to which different types of 
business will be affected; 
– the economic and social impacts including distributive effects are discussed more 
thoroughly. Furthermore, the presentation of the different policy options in paragraph 
4 has been simplified and the more detail ed assessments of each policy option (PO1 
to PO6) can now be found in Annexes 5.1 and 5.2 of the Report. 
2. P ROBLEM DEFINITION  
2.1. Introduction 
The problem addressed in this IA is the incomplete  "B2C" internal market, to the extent this is 
caused by inadequacies in the EU consumer pr otection laws. Consumer s are not yet reaping 
the benefits of a fully integrated retail market  with increased choice and lower prices (see 2.4 
on comparative prices in the EU).  There are several practical a nd structural barriers to the 
proper functioning of the B2C internal market, su ch as, for example, lin guistic, logistical and 
regulatory barriers. A significan t regulatory barrier, which ge nerates significant compliance 
costs, is that created by the fragmentati on of the national laws regulating consumer 
transactions. These laws transpose a number of  directives, constituting the EU Consumer 
Acquis. According to Eurobarometer 2008, the a dditional costs of compliance with different 
national laws regulating consumer transactions ar e seen by 60% of traders as a fairly or very 
important obstacle to B2C cross-border trade. Such compliance costs resulting from the legal fragmentation of the EU Consumer Ac quis are rated by resp ondents to the 2008 
Eurobarometer survey as being more important than additional costs arising from language 
differences, costs in ensuring an efficient cross- border after-sales servic e, delivery costs, or 
cross-border complaint-resolution. 
The Consumer Acquis 
The Consumer Acquis comprises the following Directives: 
• Council Directive 85/577/EEC of 20 Decembe r 1985 on contracts negotiated away from 
 
EN 8   EN business premises ("door-to-door" selling). It provides consumers with a right of 
withdrawal and the duty of the trader  to inform the consumer about it. 
• Council Directive 93/13/EEC of  5 April 1993 on unfair terms in consumer contracts. It 
contains an indicative list of  contract terms which may be regarded as unfair. Terms, 
which are found to be unfair, are not binding on the consumer. 
• Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on 
distance contracts (inc luding contracts concluded via th e Internet) whereby traders are 
obliged to provide consumers with informa tion before and after the conclusion of the 
contract. The Directive also provides for a w ithdrawal right and time limits for delivery 
and for reimbursement of the money paid where the consumer withdraws from the 
contract. 
• Directive 1999/44/EC of the European Parl iament and of the Council of 25 May 1999 on 
the sale of consumer goods and associated guarantees, obliging the trader to deliver goods 
to the consumer which are not defective. The Directive provides for a guarantee of 
conformity for a duration of two years and a set of remedies if the goods are defective. 
• Council Directive 90/314/EEC of  13 June 1990 on package travel  obliging traders to give 
certain information to travelers before and af ter concluding the contr act and granting other 
rights to travelers. 
• Directive 94/47/EC of the European Parliame nt and of the Council of 26 October 1994 on 
timeshare , whereby traders selling timeshare contracts must respect certain information 
requirements and grant a right of  withdrawal to consumers. 
• Directive 98/6/EC of the European Parliament  and of the Council of 16 February 1998 on 
price indication, requiring the i ndication of the selling price and the price per unit of 
measurement of products offered by traders to  consumers in order to improve consumer 
information and to facilitate comparison of prices. 
The main cause of the fragmentation are the mi nimum harmonisation clauses contained in the 
consumer directives (see 2.4.1 below) In this context, this IA will focus exclusively on the 
issues pertaining to this problem, and will examine its effects on consumers, businesses and national authorities.  
2.2. The internal market effect s of the fragmentation are: 
a) A reluctance by businesses to sell cross- border to consumers. The effects of the 
fragmentation are felt by business because of the conflict-of law rules, and in 
particular the Rome I Regulation ("Rome I"),
7 which obliges traders not to go below 
                                                 
7 Regulation (EC) No 593/2008 of the European Parlia ment and of the Council on the law applicable to 
contractual obligations. Article 6(2) of Rome I states that the choice of law made by the parties to the 
contract may not have the result of depriving the consumer of the protection afforded to him by such provisions that cannot be derogated from by contract by virtue of the law which, in the absence of 
choice, would have been applicable on the basis of paragraph 1 (this law, under certain conditions, is 
the law of the country where th e consumer has his residence). 
 
EN 9   EN the level of protection afforded to foreign consumers in their country.  
 As a result of the fragmenta tion and Rome I, a trader wi shing to sell cross-border 
into another Member State will have to incur legal and other compliance costs to make sure that he is respecting the level of consumer protection in the country of 
destination. These costs reduce the incentiv e for businesses to sell cross-border, 
particularly to consumers in small Member States. Such costs are eventually passed on to consumers in the form of higher pri ces or, worse, businesses refuse to sell 
cross-border. In both cases consumer we lfare is below the optimum level.  
b) Low level of consumer confidence in  shopping cross-border. The shortfalls in 
consumer confidence have a number of cause s but according to the best available 
data (see 2.6 below) they mainly stem from the fact that consumers are insufficiently aware of their rights. Many consumers believe  that they would be exposed to a lower 
level of consumer protection when buying abroad
8. They also believe that there is a 
higher risk something will go wrong when they buy cross-borde r (e.g. non-delivery 
or delivery of defective goods  bought over the Internet) and in this case it will be 
more difficult to seek and obt ain redress. This is a probl em of perception, which does 
not necessarily reflect the re ality (e.g. the consumer may be better-off under the law 
of the foreign trader than under his own la w), and because of the fragmentation is 
difficult to solve. Indeed, the legal frag mentation and the related uneven level of 
consumer protection across the EU make  it difficult to conduct pan-European 
education campaigns on consumer rights, mediation or other alternative-dispute 
resolution (ADR) mechanisms. 
In a nutshell, the fragmentation of the le gal framework generate s compliance costs for 
business wishing to trade cross-border which in  turn reduce consumer welfare in the sense 
that consumers cannot fully reap up the benefits of the internal market. This is the main driver of the problem that this IA addresses. This  fragmentation has a di rect negative effect on 
business willingness to trade cross-border and an  indirect negative eff ect on the low level of 
consumer confidence. Consumer confidence is a ffected by factors of a practical nature (such 
as language or geographical proximity) or ot her factors which are affected by the legal 
fragmentation, such as consumers' insuffici ent knowledge of their rights or consumers' 
difficulties in enforcing them (see 2.6 below).  
2.3. Evidence of low level of B2C cross-border trading 
In order to illustrate the effect s of barriers to the Internal Ma rket this sub section shows the 
current levels of cross border trading and comparative prices.  
The current levels of B2C cross- border trading within the Internal Market are relatively low, 
but there is considerable potential.  
Distance Selling 
The cross-border potential of distance selling is not fully exploited by consumers, who could 
take more advantage of the considerable pri ce differences between the Member States (see 
below). Cross-border Internet pur chases were made by only 6%  of consumers surveyed in 
                                                
 
8 Generally, this is consumers' misperception. As mentioned above, Article 6 of Rome I will oblige 
traders not to go below the level of protection afforded to foreign consumers in their country. 
 
EN 10   EN 2005 (up from 3% in 2003). This compares wi th the 23% who bought goods or services via 
the Internet from domestic sellers. The scale of cross-border purchases, as well as its 
significance compared with domestic shopping is even lower for co ntracts concluded via 
phone or post (mail order). This trend is c onfirmed in 2008: while the number of consumers 
having used distance sale s methods for domestic purchases has increased for all distance sales 
methods compared to 2005, this number has remained flat for cross-border distance 
purchases. This discrepancy between trends in cross-border and domestic sales is particularly 
significant for Internet sales: while the number of consumers using the Internet for domestic 
purchases has increased by 7 pe rcentage points in 2005-2008, fr om 23% to 30%, this increase 
was only 1 percentage point over the same peri od for cross-border Internet purchases, from 
6% to 7% (see Table 1, Annex 2).9 
Distance shopping differs greatly from one Member  State to the other. According to the 2008 
Eurobarometer (298), distance shop ping (largely linked to Internet  shopping) is widespread in 
the Nordic countries (Sweden, Denmark, Finla nd), the Netherlands and the United Kingdom 
(almost 80% of the consumers in these countries en tered into a distance tran saction) while it is 
far less common in Lituania, Romania, Greece,  Portugal and Bulgaria (the consumers who 
bought at a distance in these c ountries were between 14% and 24%). The overall results also 
reveal that it is much less common for consum ers in new Member States to make purchases 
via the Internet than  it is for residents of the other countries. The In ternet penetration rate 
plays a considerable role in these discrepancies.  
It can be assumed that within each Member Stat e, the obstacles to distance shopping (mainly 
via the Internet) also depend on localisation issues  (cities versus rural and remote areas which 
may face higher transaction cost s or greater information asymmetry). However, the most 
striking differences in distan ce shopping are by far between th e new and old Member States 
(the rates vary between 81% a nd 14%). Obstacles resu lting from the localisation of consumers 
(in a Member State or to a less er extent in a rural/remote ar ea) could be addressed by other 
actions at EU or national level than the Re view of the EU consumer contract law. 
Direct Selling 
The cross-border potential of di rect selling is constr ained by a number of factors including the 
stricter additional regulations  imposed upon this industry at national level, language and 
cultural differences, and the ‘nature’ of the se lling method (e.g. the sell er will in most cases 
visit the consumer). Sales figures of the sect or (as provided by the Federation of European 
Direct Selling Associations) rose by 34.8%  from 2002 to 2005 corresponding to a compound 
annual rate of growth of 10.5%.  
In 2008, 8% of consumers reported purchasing goods via this sales method domestically, up 
from 7% in 2005 (see Table 1, Annex 2). However,  the number of consumers using this sales 
channel for cross-border purchases remained flat, at 1%. Responding to increased business 
opportunities in many Member States, agents ar e more inclined to actively seek business 
opportunities abroad (mostly, but not only, in border regions). 
                                                 
9 Special Eurobarometer No. 193 (2003), No. 252 (2005) and No. 298 (2008) 
 
EN 11   EN 2.4. Comparative prices within the EU 
As indicated above, cross-border retail competition is weak, and there is only limited pressure 
on traders to harmonise retail prices across Euro pe. It should be noted that price differences 
are caused by many factors, such as tax differenc es, exchange rates, different consumer tastes 
and purely domestic barriers to competition. Th is IA does not purport to show that the 
fragmentation of EU consumer c ontract law is the main cause of these price differences but 
rather that consumers could take furt her advantage of these differences.  
The price differences are striking for partic ular products that can be normally be bought 
online either domestically or cross-border. A sm all scale online survey of three products was 
undertaken (see Table 2, Annex 2). The products were: Euphoria perfume by Calvin Klein, 50 
ml; an MP3 player (iPod nano 8GB); and a sports shoe (Nike Dart V), all of which are products that are sold globally and not characterised by large differences in taste across 
countries. Even though it was only possible to iden tify prices in a smal l number of countries 
there were significant varia tions. The largest excess pric es were: 28.2%; 58.7% and 24.6% 
respectively for the three products. The weight ed averages of excess prices were: 16.9%, 
10.1% and 6.7% respectively. 
In order to further illustrate the price differe nces that exist in the Internal Market, the 
Commission compared the prices of electronic goods which are potentia l candidates for cross-
border purchases (the findings are presented in Table 3, Annex 2). Price differences 
(including the value-added tax bu t not delivery costs) compared  to the best EU price were 
computed for this category
10 and it was found that the variations  in prices are significant for 
some countries, depending on the product catego ry. For example, Lithuania was found to 
have the best price, while Austria had the high est price in consumer electronics (34% higher 
than Lithuania and 30% higher than Germany).  
2.5. Business reluctance to trade cross-bo rder impacting on consumer welfare 
2.5.1. The cost of fragmentation The fragmentation of the EU consumer regulator y framework is a source of compliance costs. 
The main cause of the fragmentation is th e minimum harmonisation approach on which the 
EU consumer law is based.  
The Directives under review are based on the pr inciple of ‘minimum harmonisation’, meaning 
that they explicitly recognise the right of Member States to maintain or adopt stricter 
consumer protection rules in th eir national law. As a consequence Member States have made 
extensive use of the possibility to ensure a hi gher level of protection for consumers in their 
country.
11 For example, as a result of the acquis, consumers entering into a distance contract 
are, for example, given a right of withdrawal to be exercise d during a cooling off period. The 
length of the cooling off period an d the modalities for the exercise  of the right of withdrawal 
vary from one Member State to another.  
                                                 
10 Average final prices as paid by consumers including sales taxes  
11 Even though some Member States made use of th e minimum clauses, it does not always mean that in 
practice there is a higher level of consumer protec tion. Other factors such as level of enforcement, 
reliability and effectiveness of control bodies, applica tion of the law by businesses, self-regulation, etc. 
contribute to the overall level of consumer protection in a country. 
 
EN 12   EN Regulatory fragmentation is one of the main obs tacles to cross-border trade identified by the 
traders in the Eurobarometer 2008 (Flash Euro barometer 224) on Business attitudes towards 
cross-border sales and consumer protection. According to the survey results, the additional cost of complying with different  national laws regulating consumer  transactions – which is in 
the scope of the current review of the EU Consumer Acquis – was identified overall as an 
important barrier by a majority of respondent s (60%). Even when legal obstacles are 
presented individually and not cumulatively (e.g. differences in failure to provide information 
or differences in the treatment of costs of return), they are still identified as important barriers by business (respectively 51% and 48% - See Annex 1 – Table 5).  
According to the 2008 Eurobarometer, 75% of the traders who do not currently sell cross 
border, almost half indicated that they woul d start doing it if regul ations were harmonised. 
This figure clearly indicates that retailers woul d be much more open to engage in cross border 
sales if the risks of failing to comply with various national regulations could be eliminated by establishing EU level rules in this regard. Th e cost of fragmentatio n is a heavy burden on 
business. The estimated administrative costs im posed by the EU consumer law to businesses 
selling only domestically is 5526 Euro for distan ce sellers and 6625 Euro for direct sellers.  
These costs would increase to 9276 Euro for di stance sellers and 10375 Euro for direct sellers 
wishing to sell to consumers located in one  or two other EU countries. The estimated 
administrative costs for a business wanting to se ll in all 27 Member States are 70526 Euro for 
distance sellers and 71625 Euro for direct sellers (see summary table in section 6.2. and Annex 7). 
2.5.2. Inconsistencies between dire ctives and regulatory lacunae 
The problem of legal fragmentation is exacerbated by two further factors: the fact that the EU 
regulatory framework is imperfectly coordinated;  and the fact that some of the Directives 
making up the EU consumer law have in recent years become obsolete or outdated. This is 
mainly due to the fact that the various directives were adopted ove r a long period of time (e.g. 
the Doorstep Selling Directive was adopted in 1985).  
There are moreover inconsistencies and overlap s between the Directives (e.g. definitions, 
information duties, and withdrawal rights). Some Member States have remedied such 
inconsistencies and obsolescence, for example by codifying in a systematic fashion their 
consumer laws; but there are cases where Member  States have not done so, and in the cases 
where this has been done, the piecemeal approa ch across Member States has simply resulted 
in more fragmentation.  
Traders wanting to sell in the latter Member  States are confronted with a situation of 
increased complexity and uncertainty. For exampl e, traders using e-auctions are subject to a 
right of withdrawal if they sell goods to c onsumers in Germany but they are exempted from 
such a right when they sell to consumers in France using the same method of sale. For more 
details on the specific problems in relati on to the consumer acquis, see Annex 1. 
 
EN 13   EN 2.5.3. Overlaps with other EU  consumer legislation 
The complexity of the EC consumer law is further increased due to its linkages with several 
other EU laws. This is the case with the Un fair Commercial Prac tices Directive (UCPD)12 
which contains some basic information requirements.13 The UCPD applies, amongst others, 
before the conclusion of a doorstep sellin g contract, providing further information 
requirements. The Directive also provides definitions of terms already defined in the Directives under review such as consumer and trader.  
2.6. Low level of consumer confidence  
The level of consumer confidence in cross- border shopping is low. The results of the 
Eurobarometer 252 indicate that consumer confidence in EU cross-border shopping is rather low. Two-thirds of Europeans think there are more potential problems when making cross-
border purchases rather than domestic purchases. 68% of EU citizens consider there is a greater risk of falling victim to scams and fr aud when purchasing from suppliers located in 
another EU country than from providers in their home country. A clea r majority (56%) of 
Europeans agree, while almost one-quarter (2 4%) disagree, that prov iders from other EU 
countries are less likely to respect consumer pr otection laws than suppliers from their home 
country. 
Furthermore, EU citizens have greater confidence  in in-person cross–bo rder shopping than in 
distance shopping. Many respondents (45%) w ould feel less confident buying goods or 
services via the Internet from other EU Member  States. 35% of European s are as confident in 
buying goods and services during holidays, on a shopping or business trip elsewhere in the 
EU as at home. Nevertheless, 44% of Europeans still feel le ss confident when purchasing in 
another EU Member State on a shopping or business trip.  
There are three main causes for this problem.  
• Reasons of a practical and re gulatory nature (e.g. language , geography, tax regimes etc.) 
which are unrelated to EU consumer law; 
• Reasons of a practical and re gulatory nature, which are affected by EU consumer law 
(e.g. delivery and complaint handling problems); 
• Other factors that are linked to EU consumer  law, such as insufficient knowledge of the 
law by consumers, difficulties in obta ining redress and poor enforcement. 
2.6.1. Reasons of a practical and regulatory nature unrelated to EU consumer law 
From the European Consumer Centres (ECC) ques tionnaire responses, it a ppears in particular 
that consumers are concerned abou t the fact that the supplier is located far away, i.e. it being 
difficult to contact the trader and possible language problems.
14 Several participants to the 
                                                 
12 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair 
business-to-consumer commercial practices in the internal market (OJ C 149, 11/06/2005 p. 22) 
13 They include the main characteristics of the pro duct, the geographical address and the identity of the 
trader, the price inclusive of taxes, and the arra ngements for payment, delivery, and performance and 
the existence of the right of withdrawal where this right applies. 
14 Report by the European Consum er Centres, The European Online Marketplace: Consumer Complaints 
2005. 
 
EN 14   EN consumer focus group indicated that language wa s a problem, especially when having to deal 
with after-sales services. Other concerns includ e the validity of the gua rantees in the user’s 
country, the intervention and receptiveness of the local after-sales service, possible recourse 
in the event of a dispute or complaint, i.e. in sum, a lack of physical and psychological 
proximity15.  
2.6.2. Reasons of a practical nature affected by EU consumer law 
The regulatory problems which consumers percei ve when they shop cross-border are based on 
the consumer organisations survey, the Eu ropean Consumer Consultative Group (ECCG) 
workshop, the ECC survey and the consumer focus group.16 
The ECCs consider that cross-border factors,  which are perceived by consumers as problems 
of a practical nature, consti tute the most important fact ors inhibiting consumers from 
engaging in cross-border shopping.  
The most important of these factors include the following:  
• use of the after-sales service,  
• complications with regard to  delivery: e.g. non-delivery or delay of delivery and damage, 
• application of guarantee s/requests for refunds,  
• complaints’ handling problems.  
Even though the first three factors are perceived by consumers as being of a practical nature, 
they all have a regulatory dime nsion and are relevant under the Consumer Sales Directive or 
the Distance Selling Directive. For example, the lack of an EU-wide definition of delivery and 
diverging national rules on the pa ssing of risk (in th e event of loss or de terioration of goods 
during transport) may affect c onsumer confidence. Apart from being a source of confusion for 
consumers, fragmentation makes it more difficult fo r mediators to settle a dispute out of court. 
Other complications which consumers may face with delivery (i.e. delivery of a damaged 
product or partial delivery) ar e tackled by the lega l guarantee for defective goods, which is 
provided for by the Consumer Sales Directive. Si milarly, the application of consumers' rights 
in respect of defective goods (e.g. refunds in case of defectiv e goods which cannot be repaired 
or replaced) is covered by national la ws transposing this Directive.  
The consumer complaints' handling problems as well as problems with the use of the after-
sales services, in the majority of cases, are related to the application of the legal and commercial guarantees for defectiv e goods or the exercise of the right of withdrawal, which is 
provided for by the national laws transposing th e Distance Selling Directive. The issue of 
non-delivery of goods in transit and the financial consequences for the consumer are also 
                                                
 
15 Qualitative Study on Cross-border Shopping in 28  European Countries, Optem / Eurobarometer, 2004 
16 Survey of consumer organisations carried out by CPEC, January-February 2008. Meeting of the ECCG, 
Sub-group meeting on the Review of the Acquis, 29 February 2008. Report by the European Consumer Centres, The European Online Marketplace: Consumer Complaints 2005. Consumer focus group 
conducted by CPEC, Focus group on the impact of consumer protection legislation on consumers, 
conducted on 13 February 2008.  
 
EN 15   EN practical issues which are dealt with by diverg ing national laws, in the absence of harmonised 
EU legislation in this field.  
From the ECC questionnaire response, it appear s that consumers are most concerned about 
after-sales services, as they fear  that they would not be able to  resolve problems with a trader 
in a different country. This was further c onfirmed by the consumer focus group. Consumers 
are also concerned about deliv ery problems. Those problems are confirmed by the European 
Online Marketplace report on Consumer Comp laints, which highlighted the increasing 
number of complaints in relation to e-commerce,  the vast majority of which involved the non-
delivery of goods (see Table 4, Annex 2).17 
Further information on the consumer complains c ould be found in Annex 3: "Scale and nature 
of cross-border complaints".  
2.6.3. Lack of legal knowledge and difficulties  of cross-border redress/enforcement  
A survey by the ECC18 revealed that, within the obstacles related to legislation/enforcement19, 
the lack of knowledge/information with regard to consumer prot ection laws in other Member 
States was seen as the most importa nt obstacle to cross-border shopping.  
According to Eurobarometer 252, 71% of Europ eans think it is harder to resolve problems 
such as complaints, returns, price reductions , guarantees, when purchasing from providers 
located in other EU countries compared to the ones based in their home country. 
There is an uneven level of consumer protection across the EU20 which makes it difficult to 
conduct pan-European education campaigns on cons umer rights, carry out mediation or other 
alternative-dispute resolution mechanisms. This pr oblem is particularly acute in the light of 
new market developments. The ambiguities a nd weaknesses in EU consumer law exacerbate 
these problems. It is for example unclear to what extent B2C transactions made through new 
sales channels or products (e.g. in ternet auctions, internet sale s on an organised scheme run by 
a third party's electronic platform  or home-parties/social "networking" in the direct selling 
industry) are covered (see Annex 1) by consumer protection laws. 
Some Member States may have  updated the consumer protecti on rules in various ways to 
bring them up to the date to market deve lopments and close the regulatory loopholes.  
For example, in Germany, the Distance Selling Directive has been inte rpreted as subjecting 
Internet auctions to a right of withdrawal and information requirements; in France, home-
parties or other events where the visit of the trader was solicited by the consumer are covered 
by the rules on contracts concluded away from bus iness premises (direct selling). Some other 
Member States have not done so or have done so  in different ways. Consumers are, therefore, 
subject to different levels of protec tion in the various Member States.  
                                                 
17 The European Online Marketplace:  Consumer Complaints 2005  
18 The European Online Marketplace:  Consumer Complaints 2005 
19 The response possibilities within the group were: Lack of information/knowledge about consumer 
protection laws in other Member States; Lower standards of consumer protection laws in other Member 
States; Consumers do not know where to turn to in the event of a complaint; A lower degree of 
enforcement possibilities; Other.  
20 For a more detailed analysis see the Comparativ e Analysis of the Euro pean Consumer Acquis 
http://ec.europa.eu/consumers/rights/docs/consumer_law_compendium_comparative_analysis_en_final.
pdf 
 
EN 16   EN 2.7. Does the Union have the right to act? 
Article 153(1) and (3)(a) of the Tr eaty provides that the Commun ity is to contribute to the 
attainment of a high level of consumer prot ection by the measures it adopts pursuant to 
Article 95 of the Treaty and having as their object the establishment and functioning of the 
internal market. 
As a result of the fragmentation of national consumer laws, a trader  wishing to sell cross-
border into another Member State will have to incur legal and other compliance costs to make 
sure he is respecting the leve l of consumer protection of th e country of the consumer, as 
required by Rome I. This is a regulatory barrie r to the completion of the internal market. 
This problem cannot be solved by the Member  States individually since it is the very 
uncoordinated usage of the minimum harmonisation clauses by the Member States that is at 
the root of the problem. Likewise, addressing new market developments, regulatory gaps and 
inconsistencies in EU consumer laws in an uncoordinated manner generates more fragmentation and exacerbates the problem. 
Only a coordinated EU interventi on can contribute to the completion of the internal market by 
solving this problem.  
The different options for an EU intervention are presented in section 4 on Policy Options 
where the subsidiarity and propor tionality tests have been app lied. In particular paragraph 
4.2.1 explains how such tests have been applied to the legislative approaches which make no 
distinction between domestic a nd cross-border transactions. 
 
EN 17   EN  
3. T HE POLICY OBJECTIVES  
3.1. Objective Tree 
Overall objective: To contribute to the better functioning of the B2C Internal Market and 
achieve a high common level of consumer protection 
Related Specific Objective: 
– To stimulate cross-border competition thus provide consumers with wider range of goods 
and services at lower prices.  
Related Operational Objective:  
– To improve consumer protection legislation by simplifying it and making it more coherent. 
 
 
The attainment of these objectives  should result in traders being encouraged to develop their 
business cross-border and consumers being ab le to benefit from extended choice and 
potentially lower prices.  
                                                 
21 Fragmentation here refers to differences between the existing legislative instruments that could apply to 
particular transactions General objective 1: To reduce business 
reluctance to trade cross-border 
Related Specific Objective:  
– To decrease compliance costs for 
business 
Related Operational Objectives 
– To decrease the legal uncertainty to 
businesses by eliminating regulatory fragmentation
21 and by reducing the 
administrative and compliance costs to businesses in meeting the requirements of 
consumer protection legislation.  
– To increase the volume (number) of cross 
border B2C transactions. General objective 2: To enhance consumer confidence in the internal market 
Related Specific Objectives 
– To provide consumers with uniform 
level of protection when they trade cross-border 
– To ensure a high level of consumer 
protection. 
Related Operational Objectives 
– To decrease the legal uncertainty to 
consumers 
– To increase incentives for consumers to 
shop cross-border 
 
EN 18   EN The Policy Options and sub-options will be assesse d in the light of these general objectives 
which should be regarded as mutually reinfo rcing and not antagonistic. For example, the 
introduction of an EU-wide standard withdr awal form would reduce compliance costs for 
business, simplify the regulatory framework and at the same time, enhance legal certainty for consumers. Conversely, if one Policy Option or sub-option contributes to  one of the general 
objectives (i.e. enhancing consum er confidence) but falls short of achieving the other general 
objective (i.e. reducing business reluctance to trade cross-border by decreasing compliance 
costs), the overall assessment of such option will be less positive or negative and will finally not be chosen.  
4. T
HE POLICY OPTIONS  
4.1. Introduction 
This section describes the policy options. These include, as required by the impact assessment 
guidelines, the Status Quo and a non-legislative option together with four legislative policy 
options. Given the many individual legislativ e sub-options under consideration (more than 
20), clusters or Policy Options (POs) have been  constructed on the basis of overall consensus 
on their ‘acceptability’ and ‘certainty’, based on the outcomes of two extensive consultation 
exercises (See Section 1).  
These policy options are: 
• Policy option 1 (PO 1) Status Q uo or baseline scenario, includ ing the effects of Rome I and 
forthcoming legislation. 
• Policy option 2 (PO 2) Non le gislative approaches, including information campaigns and 
financial contributions and the effects of Rome I. 
• Policy option 3 (PO 3) Minimum legislative changes (harmonisation of basic concepts 
where benefits clearly outweigh costs), including the effects of Rome I.  
• Policy option 4 (PO 4) Medi um legislative changes ( including PO 3  plus and the effects of 
Rome I). 
• Policy option 5 (PO 5) Maximum legislative changes ( including PO 4 plus far-reaching 
proposals granting new consumer rights as  well as the effects of Rome I). 
• Policy option 6 (PO 6) Minimu m legislative changes (PO 3)  or Medium legislative 
changes (PO 4) combined with an internal market clause applying to the non-fully 
harmonised aspects (such as general contra ct law aspects outside the scope of the 
Consumer Acquis).  
The legislative changes introduced in  POs 3, 4, 5 and partly in PO 6 are based on the 
principle of full harmonisation . Even where a change implies, for example, a mere 
clarification of the current provisions, Memb er States which have ‘gold-plated’ such 
provisions in their national legislation as a re sult of the minimum harmonisation approach of 
 
EN 19   EN the consumer protection Directives22 would no longer be  allowed to do s o. Businesses on the 
other hand, would still be allowed to offer more generous conditions as part of their 
commercial practice. 
Policy options 3, 4 and 5 can be depicted as three concentric circles. PO 4 comprises PO 3 
and the other issues specifically regulated by PO 4. PO 5 comprises PO 4 and some other 
regulatory changes. PO6 combines an internal ma rket clause with either PO 3 (sub-option 1) 
or PO 4 (sub-option 2). 
The various legislative sub-options  that are included in the policy options are the result of an 
extensive consultation and resear ch phase which aimed to ‘shor tlist’ those proposals that 
seemed most desirable and feasible, for inclusion in the Impact Assessment. 
The Impact Assessment was preceded by two year s of consultation star ting with the Green 
Paper in February 2007 (for more details see 1.2 and 1.3 on stakeholder involvement), sector-
specific consultations on the Distance Sellin g and the Direct Selling Directives, the 
monitoring of consumer compla ints via the ECC-net (for more  details see paragraphs 2.6.1, 
2.6.2 and 2.6.3 on the problem definition) and simu ltaneously a comparative law analysis of 
the implementation of the Consumer Acquis in  all 27 Member States. The research phase 
focused on identifying potential horizontal problems in relation to the existing Consumer 
Acquis (i.e. to address the overall complexit y, inconsistencies and overlaps between the 
directives and to deal with fragmentation problem s) as well as exploring vertical and sectoral 
issues (e.g. the inadequate scope of the Consumer Acquis in the light of changes in the marketplace). This ‘mapping’ ex ercise allowed to identify ar eas of the Consumer Acquis in 
which legislative interventions were needed and to determine areas which required further 
data gathering.  
It was this twofold approach combining public consultation and comparative law analysis of 
the Directives, that made it possible for the Commission to identify key issues for 
stakeholders, e.g. where the different implemen tation at national level caused unnecessary 
administrative costs for business or where the advent of new technolog ies and developments 
in the marketplace created regulatory gaps.  
Once these main areas of concern were identif ied, the Commission developed alternatives for 
the sub-options. For example, as regards the pa ssing of risks in consumer sales, one option 
would have consisted in transferring the risk  to the consumer only at the moment he has 
possession of the good. Another op tion would have been that th e risk passes already at the 
moment when the trader hands it over to the de livery company and hence before the consumer 
acquires possession.  
These different alternative ways have been test ed with stakeholders in the following manner: 
• Questionnaires on the impacts of the different  policy options addressed to business and 
consumer stakeholders in December 2007. 
• Policy solutions (inc luding the various sub-options) were presented to business 
stakeholders at workshops organised in February 2008
23 with the purpose of finding out 
                                                 
22 Member States have introduced or maintained in the area covered by such Di rectives, more stringent 
provisions to ensure a higher level of consumer protection. 
23 Participants of the business stakeholder meeting are listed in Annex 6 
 
EN 20   EN about their preferences, as we ll as obtaining their expert op inion on the likely impacts. In 
particular, the participants were  asked to assess the following: 
– rate the regulatory burden deriving from the current legal situation; 
– rate the significance and relevance of the changes under consideration; 
– rate the impact of the changes under consideration on the regulatory burden. 
• A similar approach was adopted during the wo rkshop organised within the context of the 
European Consumer Consultative Group (ECC G) in February 2008. Representatives of 
consumer organisations were asked to rank th e proposed legislative changes in order to 
assess the following: 
– whether the legislative changes under c onsideration would increase or reduce 
overall EU consumer protection and national consumer protection levels; 
– whether the changes under consideration would increase consumer confidence in 
general and in cross-border shopping in particular; 
– rank the changes in or der of significance. 
• A number of bilateral meetings were organised with stakeholders to collect information on 
their business practices, the challenges that in  their view needed to be addressed to 
facilitate business and their views on some of the policy solutions. The interviews were 
adapted to the particular business and knowledge of the stakeholder.  
• A bilateral meeting was organised with BEUC representing European consumer 
organisations. 
The outcome of the different consultations is presented in the detailed assessment sheets in 
Annex 5.  
On the basis of the outcome of the questionnai res, workshops and interviews the Commission 
was finally able to carry out a cost/benef it analysis of the various sub-options.  
4.2. Discarded Policy Options  
4.2.1. Discarded sub-options as a result of the Green Paper on the Review of the Consumer 
Acquis 
The Green Paper consulted on a number of issues pertaining to the need for a revision of EU 
consumer contract law. The Green Paper has a ttracted a very high number of responses (more 
than 300) from a wide range of stakeholders. Th e highest number of contributions came from 
the business sector.  
• Applying new EU legislation to  cross-border contracts only? 
 
EN 21   EN This question was put forward in the Gr een Paper (question A2). 81% of the 
respondents24 (including all European SME organisations) supported the option to 
apply the horizontal instrument to all cons umer contracts irrespec tive of whether they 
concern domestic or cross-border transacti ons as it is the case in the existing EU 
Directives under review as well as in th e most recent consumer protection Directive 
(i.e. the Unfair Commercial Pract ices Directive No. 2005/29/EC).  
Only 5% of all contributors (including 7% of business and none of the 27 Member 
States) supported the alternative option to apply the horizontal instrument to cross-
border contracts only. This option may appear prima facie to be more in line with the 
subsidiarity principle since the new EU legislation would not interfere with the 
regulation of domestic cons umer contracts. Such an option would, however, create 
two sets of rules which, according to the majority of the respondents, would 
constitute a major shortfall. 
This would create further fragmentati on and would make it more difficult for 
consumers who are already insufficiently aware of their rights to become familiar with the regulatory framework. It would further undermine their confidence in cross-
border shopping. It would also create admi nistrative burden on business which would 
have to offer two different standard contra cts and would have to determine on a case 
by case basis which standard contract to apply to every individual transaction. It 
would also increase other compliance costs su ch as the costs of the management of 
business processes.  
Overall, stakeholders stated that a dual regime distinguishing between domestic and 
cross-border consumer contra cts would go against the obje ctive of simplification of 
the EU regulatory framework and would create competitive distortions between businesses trading only domestically and t hose trading both domestically and cross-
border. 
• Vertical revisions of a ll individual Di rectives?  
In principle, the existing di rectives could be amended separately in order to adapt 
them to market and technol ogical developments. The gaps  specific to the individual 
directives could be filled in and particularities to these di rectives could be addressed.  
However, the vertical revisions would take  much longer and not be able to achieve 
the simplifying effect of th e horizontal legisla tive proposal. The EU would have to 
address the same issues in the course of  the different legislative procedures. The 
Commission would also have to make sure that the same issue is transposed 
consistently by the Member States for each of the directives. The volume of 
legislative acts would not diminish and the same common concepts would continue 
to be contained and regulated in the various directives.  
This is the reason why the vertical approach to the revision has not been supported 
by the great majority of respondents (86%) to the Green Paper (see the outcome of 
question A1). 
                                                
 
24 Green Paper on the Review of the Consumer Acquis (COM(2006) 744 Final of 08.02.2007. The Green 
Paper and the results of the consultation are available at 
http://ec.europa.eu/consumers/rights/cons_acquis_en.htm  
 
EN 22   EN • Including general contract  law issues within the scope of the Review?  
Several possible proposals have been c onsidered, but not included in the policy 
options that will be reviewed in detail, these include: the introduction of general contractual remedies; the intr oduction of the right to dama ges; the extension of the 
scope of unfairness test to be applied to contract terms; and the introduction of a 
general clause of good faith a nd fair dealing. These issues have been subject to the 
public consultation on the Green Paper on th e Review of the Consumer Review and 
legislative changes on such issues have found little support
25. From the consultation, 
it emerged that these issues are not specific to consumer law; given their relation to the general contract laws of the Member States they should not be part of the 
Review. 
• Including software and data w ithin the scope of the Review? 
Furthermore, the outcome of the public consultation on the Green Paper has shown 
that the extension or adaptation of the guara ntee for lack of conformity to software 
and data, including particularly  those affecting di gitised product require further data 
gathering
26. For these reasons, such aspects have not been considered in the Impact 
Assessment study. 
4.2.2. Discarded Policy Options: In clude all the eight consum er protection Directives 
constituting the consumer acquis in the Review.  
Four Directives have not been included within the scope, i.e. the Timeshare Directive, the 
Travel Package Directive, the Price Indicati on Directive and the In junctions Directive. 
The first two Directives deal with specific consumer contracts while the other two do not 
regulate contract law matters.  
As for the Timeshare Directive, the Commi ssion identified a number of consumer and 
competition problems, which are sector specific  and require a rapid regulatory solution. To 
this end, the Commission adopted  a proposal for a revision of the timeshare directive on 7 
June 2007. This proposal, which was preceded by an IA, mainly addre sses sector-specific 
issues ("vertical" issues). Given the specific ity of timeshare and the very limited number 
horizontal issues affected by th e revision of the dir ective, the Commission saw no point in 
including the Timeshare Directive in this IA.  
Similar considerations apply to the Travel Pa ckage Directive, which also contains sector-
specific provisions. This was confirmed by th e public consultation launched by SANCO on 
26 July 2007, the summary of which was pu blished on SANCO website. Given the very 
limited points in common with the rest of the consumer acquis, the Commission excluded the Travel Package Directive from this IA.  
                                                
 
25 See the report on the outcome of the public consultation on the Green Paper on the Review of the 
Consumer Acquis available on SANCO's website: 
http://ec.europa.eu/consumers/cons_int/s afe_shop/acquis/acquis_working_doc.pdf 
26 See Sections 3 and 4.16 of the report on the outcome of the public consultation on the Green Paper on 
the Review of the Consumer Acquis available on SANCO's website: 
http://ec.europa.eu/consumers/cons_int/s afe_shop/acquis/acquis_working_doc.pdf 
 
EN 23   EN The Price Indication Directive does  not deal with contract law issues; it is a marketing law 
obliging traders (independently of  whether a contract has or has not been concluded) to 
indicate the selling price and the price per un it of measurement on all the products which they 
offer to consumers. Given the different nature  of the subject matter and the very limited 
common aspects to the rest of the consumer  acquis, the Commission excluded the Price 
Indication Directive from this IA.  
The Injunctions Directive does not regulate consumer contract s but deals with a means of 
enforcement. Given its different nature its review will not be part of this IA.  
4.3. Policy options subjected to Impact Assessment 
PO 1 Status Quo: maintaining the min imum harmonisation of the Acquis 
The Status Quo means that no action is under taken to review the Consumer Acquis. It 
includes actions that are already underway or likel y to happen in the absence of a review. This 
means that the key issues as identified in the problem definition will persist and some additional factors will be added.  
In particular, the Status Quo implies that th e minimum harmonisation approach will continue 
to exist and Member States will have the po ssibility to further increase the differences 
between national legislative frameworks as they can further adap t their legislation.  
The inconsistencies and gaps in EU consumer laws will also persist, such as for example the 
use of different definitions for the same concept,  or the lack of definition of certain important 
concepts. 
PO 2 Non legislative approaches 
The non-legislative option include s two ‘soft’ measures, name ly EU funding for awareness 
raising and self-regulation. PO 2 could both act as an ‘add-on’ to  the legislative policy options 
3, 4 and 5 or be implemented as standalone measure(s). 
• EU-Level Awareness Raising Campaigns. 
EU-level awareness raising campaigns coul d be organised in or der to increase the 
knowledge of consumers and other stakeholde rs on consumer prot ection legislation. 
Given the current regulatory fragmentation, this policy option could be difficult to 
use as a standalone option. Should the policy option be used as a complement to any 
of POs 3, 4 and 5, the campaigns could focu s on raising the awareness of the target 
audience on the upcoming changes to the Consumer Acquis, thus creating a positive 
environment and a greater understanding of  the benefits. Th e full harmonisation 
principle enshrined in POs 3, 4 and 5 w ould reinforce the campaigns, since the 
message would be unambiguously the same across the EU. 
Member States could be encouraged to organise exchanges of experiences and good 
practices in the areas of enforcement and redress.  
The rationale for these campaigns relates to the overall low levels of awareness of 
consumers, but also of businesses, on cons umer protection laws and to the problems 
caused by external factors, such as insuffici ent access to justice and redress, as well 
as poor enforcement. Some of the problem s encountered do not strictly relate to 
 
EN 24   EN differences in national frameworks or to technical and le gal problems of the 
Consumer Acquis, but simply to the lack  of knowledge that such differences and 
problems existed. In addition, there is sti ll an overall ‘natural’ reluctance towards 
cross-border shopping and cros s-border trade which is often a result of cultural 
differences and ‘fear of the unknown’. Awa reness-raising campaigns could address 
the shortfalls in information and certaint y in the market, both from the demand and 
the supply-sides. 
• Self-regulation 
In some areas a soft law instrument in the form of self-regulation could be 
developed, focusing on specific market se ctors (e.g. m-commerce) where such an 
instrument could have an added value.  
The initiative would have to be driven at the EU level (e.g. by relevant European 
business representations), to ensure e ndorsement of the code across a wide 
geographical area and participation by as many actors as possible. There is already 
an abundance of examples (with varying de grees of success) and best practices 
where this has been achieved at national le vel (France, the Netherlands and the UK), 
where businesses representations from diff erent sectors, have agreed terms and 
conditions with national consumer asso ciations(e.g. the FEDSA and ICC codes of 
conduct on direct selling that go beyond th e requirements of the Doorstep Selling 
Directive as they, for example, do not in clude a threshold and make no distinction 
between solicited and unsolicited visits; the Organisation for Timeshare in Europe has similarly adopted a code of conduct wh ich incorporates an alternative dispute 
resolution system to resolve consumer complaints and discipline member companies that contravene the code) 
Relevant business associations, in collabo ration with consumer  organisations and 
Member States could thus be encouraged to: 
– Jointly identify problem areas. 
– Collect good practices which may already exist in sectors or Member States. 
– Draw up a code of conduct or other form of voluntary agreement which would 
apply across the EU. 
– Ensure compliance and disciplinary measures, as well as dispute resolution in the 
cases of problems 
PO 3 Minimum legislative changes 
The third option includes four ‘uncontroversia l’ legislative proposals which would fit in a 
possible horizontal instrument. The policy option has a strong focus on: 
• Improving legislation / a ddressing inconsistencies 
The policy option addresses inconsistenc ies in legislation by proposing common 
definitions for concepts such as ‘consumer’ and ‘trader’, which would ‘tidy up’ current (minor) differences.  
 
EN 25   EN • Addressing gaps 
The policy option introduces a common defi nition for the concept of ‘durable 
medium’, which was not yet include d in the directives under review27.  
• Further harmonisation and streamlining. 
The policy option introduces further harmonisation by proposing certain information 
requirements to intermediaries se lling on behalf of a consumer.  
The proposed EU legislation would continue  to apply both to domestic and cross-
border consumer contracts. As already s hown in 4.2.1, proposing two sets of rules 
would be burdensome for business and conf using for consumers and would therefore 
go against the objectives the Review. 
Table 1 in Annex 4: "The Policy Options" presents  the main characteristics of each legislative 
proposal included in PO 3. 
PO 4 Medium legislative changes 
The fourth policy option includes 16 additional legislative changes which would both fit into 
a horizontal instrument and address some vertic al aspects. In additi on, it should be reminded 
that Policy Option 4 includes all elements of PO 3 . 
The policy option has a strong focus on: 
• Tidying up legislation / a ddressing inconsistencies 
The policy option addresses inconsistencie s in national laws by proposing EU-wide 
common definitions for the concepts of delivery and passing of risk, distance 
contract and off-premises contract. Th e proposals also focus on closing certain 
‘loopholes’ in legislation to take into  account changes in the marketplace (e.g. 
distance and off-premises contracts) and to  reduce possible abuse by rogue traders on 
the one hand, and keeping legislation suffi ciently ‘flexible’ on the other hand by 
introducing some exemptions. The policy op tion introduces some new elements in 
the Consumer Acquis, such as fully ha rmonised rules on information requirements 
and on the modalities and effects of withdrawal. 
• Addressing gaps and upda ting existing legislation 
The policy option addresses the extension of the scope of distance and off-premises 
rules and proposes some clarifications  (for example on m obile telephone "M"-
commerce and e-auctions) and limited exemptions to ensure that goods and services, for which some provisions such as the righ t of withdrawal woul d be meaningless or 
damaging, are not covered by the new rules. 
• Further harmonisation and streamlining. 
                                                
 
27 It is noted that a definition of durable medium already exists in Directive 2002/65 concerning the 
distance marketing of consumer financial services and in the Timeshare proposal. 
 
EN 26   EN Further harmonisation of ex isting EU legislation woul d be pursued through, for 
example, the introduction of common rules on the length of the withdrawal period, 
the modalities and effects of withdrawal, information requirements and on the length 
of the legal guarantee or the order in which remedies for such a guarantee may be 
invoked.  
As explained above, the proposed EU legisl ation would continue to apply both to 
domestic and cross-border c onsumer contracts.The Policy  Option also puts forward 
the further harmonisation of the requirement for consumers to timely notify the seller 
in case of a lack of conformity. 
For more details on Policy Option 4, see Table 2 in Annex 4. 
PO 5 Maximum legislative changes  
Policy Option 5 includes three additional legisl ative proposals granting new consumer rights. 
In addition, Policy option 5 includes all elements of Policy option 4. 
The Policy option has a strong focus on addressing gaps. 
This Policy option gives additional consumer prot ection in relation to recurrent defects and a 
right to be informed as to th e availability of spare parts. Under policy option 4, the consumer 
would not enjoy these rights and Member Stat es would be prevented from granting them. 
The issue of payment when consumers seek a refund ("charge-back") in case of non-delivery 
or the exercise of his right of withdrawal woul d also be regulated. For more details on policy 
option 5, see Table 3 in Annex 4. 
PO 6 legislative changes combined  with an internal market clause applying  to the non-fully 
harmonised aspects 
In its Green Paper on the Review of the Cons umer Acquis, the Commission sought the views 
of stakeholders on the degree of harm onisation of the legislative options.  
In this context, an alternative to full harm onisation was put forth in the form of a minimum 
harmonisation approach combined with an Internal Market clau se. This approach has been 
discussed during the consultation process. 
Such an Internal Market clause could have take n the form of a mutual recognition clause or of 
a clause on the country of origin principle for th e aspects falling within the scope of a future 
Directive and not subject to full harmonisation. A mutual r ecognition clause would give 
Member States the possibility to introduce strict er rules in their national law, but would not 
entitle a Member State to impose its own stri cter requirements on businesses established in 
other Member States in a way which would create unjustified restrictions to the free 
movement of goods or to the freedom to provide  services. A clause based on the country of 
origin principle would give Me mber States the possibility to  introduce stricter consumer 
protection rules in their national law, but bus inesses established in other Member States 
would only have to comply with the rules applicable in their country of origin.  
Both variants of the Internal Market clau se met considerable opposition from several 
categories of stakeholders. The majority of Member States are opposed to both mutual recognition and the country of origin principle.  Only five Member States would accept mutual 
 
EN 27   EN recognition for certain aspects, while another Member State argue s in favour of the country of 
origin principle. The majority of consumer associations (61%) oppose mutual recognition or 
the country of origin principle on the grounds that it would lead to a "rac e to the bottom" and 
to more legal uncertainty, in particular in cr oss-border transactions. Regulatory fragmentation 
combined with the Internal Market clause would achieve legal certainty for traders, but not for 
consumers, who would be subject to different laws with different le vels of protection.  
Finally, an Internal Market clause which would systematically subject the contract to the law 
chosen by the parties (which will normally be the law designated as applicable under the 
trader's standard contract terms) or to the law of the country of origin  (i.e. the country where 
the trader is established) goes against th e newly-adopted Rome I Regulation on the law 
applicable to contractual obligati ons. Indeed the clause would cont rast with Article 6(1) of the 
Rome I Regulation, which provides  that the law applicable to consumer contracts, in the 
absence of a choice made by the parties, is the law of the country where the consumer has his 
habitual residence (i.e. the law of  the country of destin ation). It would also be in contrast with 
Article 6(2) of the Regulation which provides th at the law chosen by the parties (e.g. the law 
of the country of the trader) ca nnot deprive the consumer of th e protection granted by the law 
of his country of residence. Su ch an Internal Market clause would not be acc eptable by the 
great majority of Member States, as evidenced  by the public consultation on the Green Paper. 
The Internal Market clause is supported by the majority of businesses since it would ensure 
maximum legal certainty for comp anies wishing to trade cross-bor der. The precise impact of 
such a clause would depend on its scope which in turn would depend on the number of issues subject to full harmonisation.  
5. A
SSESSMENT OF IMPACTS  
5.1. Introduction 
This section considers each of the policy options in turn and concludes with a 
comparative assessment indicating the prefe rred option. POs 3, 4 and 5 are, as shown 
in section 4, described and assessed on an incremental basis. This means that POs 3, 
4 and 5 are each assessed on the basis of  the additional legal changes brought by 
each of them; in other words, this incremental assessment covers exclusively the elements of change that ar e introduced specifically by th at option. For example, the 
rating of PO 4 does not take into account the fact that this option includes PO 3. This 
is aimed at showing the advantages of di sadvantages of the a dditional regulatory 
changes introduced by each  of these options.  
Unlike the other regulatory options, PO 6 is  not assessed on an incremental basis, but 
on a cumulative basis. For example, the rati ng of PO 6 takes into account the fact 
that this option includes either PO 4 or PO 3.  This is due to the fact that this option 
results from the combination of full harmoni sation and an internal market clause. A 
stand-alone assessment of the internal mark et clause would be meaningless because 
its evaluation greatly depends on the number and nature  of issues being harmonised. 
The detailed individual assessments of each of the legislative proposals (and 
alternative ‘sub options’) can be found in Annex 5: "Assessment of Policy Options: 
Assessment Sheets". 
 
EN 28   EN 5.2. Assessment criteria 
The six POs have been assessed by considering each of the legislative proposals 
included in terms of: 
a) Economic effects, including: compliance / administrative costs of  public authorities; 
increased / reduced costs for businesses such  as administrative and compliance costs 
or costs for handling complain ts and returns, legal advice,  etc; consumers and other 
indirect effects for example on prices; consumer and business awareness and confidence; effects on SME and, effects on the internal market and competition. 
b) Social effects, includi ng the level of consumer protection, consumer empowerment, 
employment, etc.  
c) Legislative effects (i.e. n eed to change EU legislation, effects as a result of other 
legislative instruments, and particularly Rome I) 
d) Environmental effects, including effects on sustainable development due to transport 
costs, if relevant. 
e) Effects on fundamental rights (this is a re quired consideration in IA, relevant rights 
include consumer protection itself (Article  38 of the Charter) and protection of 
personal data.  
The assessment of each Policy option is pres ented in an assessment grid which rates 
and summarises the expected effects. Additi onal issues that have been taken into 
account include: 
• Lower prices as a result of enhanced competition 
• Greater consumer choice 
• Higher quality products 
• Business growth as a result of increased cross-border trading 
• Benefits resulting from the simplificati on brought about by proposed measures (in 
line with aspects of ‘Better Regulation’) 
Stakeholder views on each Policy Option, as indicated through the consultation 
exercise, surveys, workshops, inte rviews, are presented in Annex 6. 
5.3. Assessment of PO 1 Status Quo  
Summary of PO1  
The Status Quo means that no action is undert aken to review the Consumer Acquis. It 
includes actions that ar e already underway or lik ely to happen in the absence of a review. 
No further harmonisation of the Acquis a nd related national pr otection legislative 
frameworks. Rome I applies. 
 
EN 29   EN  
 
EN 30   EN  
Status quo Contribution to the 
better functioning of 
the IM Minimising the 
burden of EU 
legislation for 
business Enhancing consumer 
confidence Improving the quality 
of legislation 
Comments 
Overall assessment 
of this option - - 0 -  
5.4. Assessment of PO 2 Non legislative approaches 
Summary of PO 2  
The non-legislative option includes two ‘soft’ m easures, namely awareness raising and self-
regulation. Policy option 2 could bot h act as an ‘add-on’ to the legislative options 3 4 and 5 
or be implemented as a stand alone package. As an 'add-on' it will accentuate the impacts of 
the legislative options. The impacts of this option as stand alone package are assessed below. It must be borne in mind, that self-regulation could th eoretically overcome a number 
of internal market problems if some difficu lt conditions were met (e.g. the codes would 
have to be based on the highe st common standards, and cove r the whole of the EU). In 
practice, the current regulatory fragmentation makes self regulation difficult to work at EU level.  
Rome I applies. 
 
Non-legislative 
approaches Contribution to 
the better functioning of the IM Minimising the 
burden of EU legislation for business Enhancing 
consumer confidence Improving the 
quality of legislation Comments 
Overall 
assessment of this option 0 0 + -  
 
 
EN 31   EN 5.5. Assessment of PO 3 Minimum legislative changes 
 
Summary of PO 3 
Policy Option 3 includes a total of four legislative proposals which could fit in a possible 
horizontal instrument. The policy option focus on a limited number of inconsistencies and 
gaps in EU legislation related to the basic defi nitions. It provides harm onised definitions of 
key concepts of "consumer", "trader" and "dur able medium". Such clearer and up to date 
definitions aim at simplifying the legisla tion by removing current overlaps and legal 
uncertainty. Furthermore, this option addresses a consumer protection la cuna related to the 
intermediaries acting on behalf  of consumers by introducing an information requirement. 
Rome I applies. 
 
Nature of the 
"legislative change" Contribution to the 
better functioning 
of the IM Minimising the 
burden of EU legislation for 
businessEnhancing 
consumer 
confidenceImproving the 
quality of legislation 
Comments 
Definition of 
‘consumer’ and ‘trader’ 
 0 0 0 + Adoption of a single 
definition of consumer and trader, which is the one currently used in the Unfair Commercial practices Directive 
Definition of durable medium (for the purposes of communication of information from the 
trader to the 
consumer and vice versa) ++ ++ 0 ++ Durable medium should 
be any instrument, which enables the consumer or the trader to store information (e.g. email, 
paper in writing) 
Information 
requirements for intermediaries acting on behalf of consumers 
 0 0 + 0 Intermediaries should be 
obliged to inform the consumer that they act on behalf of another consumer, failing which the transaction will be 
 
EN 32   EN Nature of the 
"legislative change" Contribution to the 
better functioning 
of the IM Minimising the 
burden of EU legislation for 
business Enhancing 
consumer 
confidence Improving the 
quality of legislation 
Comments 
deemed a B2C transaction
Overall assessment of 
this option + ++ + ++  
The detailed explanations of the content of the legislative changes as well as the detailed 
assessments of its impacts can be found in Annex 5.  
5.6. Assessment of PO 4 Medium legislative changes 
Summary of PO 4 
The 16 legislative changes proposed under PO4 (11 are of a horizontal nature and five 
address vertical aspects) combined with th e four legislative changes proposed under PO3, 
address all the relevant consumer  protection issues which trader s have to take into account 
when designing their marketing materials, dr afting their standard terms and operating their 
business with consumers, particularly fo r distance transactions (e.g. e-commerce 
transactions) and contracts negotiated away fr om business premises (e.g. doorstep selling). 
The full harmonisation of those issues, which include for example, the rules relating to 
unfair contract terms, the right of withdrawal  and the information requirements for distance 
and off-premises contracts will considerably  reduce the administrative costs for traders 
when trading cross-border. Such legislativ e changes are also relevant for consumer 
confidence in cross-border shopping. For exam ple, new harmonised rules on the passing of 
the risk of loss or deterioration of trans ported goods when consumers have acquired the 
material possession of the goods aim at incr easing consumer confidence in cross-border 
shopping.  
Furthermore, clearer and up to date definition s, such as the new proposed definitions of 
distance and off-premises contracts aim at si mplifying the legislation by removing current 
loopholes and overlaps and therefore at ensuri ng competition between businesses on equal 
terms while achieving the same high level of c onsumer protection for all forms of distance 
and off-premises contracts. In addition, the policy option includes an update of the 
legislation to new market developments as a result for instance of the recent years' widespread use of new technologies. 
As explained above, this policy op tion is assessed on an incremen tal basis. As a result, this 
table assesses exclusively the changes introduc ed specifically by PO4 on top of the ones 
already included in PO 3. The overall assessment of PO 4 takes into account the cumulative 
effect of the 16 legislative changes all base d on full harmonisation and the application of 
Rome I. 
 
EN 33   EN  
N
O Nature of the 
"legislative change" Contribution to the 
better functioning 
of the IM Minimising the 
burden of EU legislation for business Enhancing 
consumer 
confidence Improving the 
quality o
f 
legislation 
Comments 
1 Definition of 
delivery and passing of risks + 0 +++ + Parties can freely 
define the moment of delivery while the risk of loss or deterioration of goods in transit always passes when the consumer acquires the material possession of goods (Sub-option 2) 
2 Definition of 
‘distance contract’ + + + ++ Clarifying 
relationships between distance and direct selling, closing gaps and removing legal uncertainty resulting from the current definition 
3 Definition of 
‘off-premises contract’ ++ + +++ +++ Clarifying 
relationships between distance and direct selling, closing gaps and removing legal uncertainty resulting from the current definition 
4 Introducing a 
grey and a black +++ ++ + +  
 
EN 34   EN list of unfair 
contract terms with legal effects instead of a purely indicative list 
5 Setting the 
length of the withdrawal period  ++ + +++ ++ 14 calendar days 
for distance and off-premises contracts (Sub-option 1) 
6 Setting the start 
of the withdrawal period and its extension ++ ++ - + Different starting 
points for distance and off-premises contracts (Sub-option 2) 
7 Introducing a 
common set of rules for exercising the right of withdrawal ++ ++ 0 + Rules on how the 
withdrawal should be communicated to the trader  
8 Introducing a 
common set of rules on the effects of withdrawal +++ +++ - +++ Rules on costs 
and reimbursement following withdrawal,  
9 Introducing 
common rules on the content and form of information to be provided to the consumer +++ ++ ++ +++  
10 Introducing an 
obligation for consumers to notify the seller within a reasonable + ++ 0 + Introduction of 
the obligation (Sub-option 1) 
 
EN 35   EN period of a lack 
of conformity 
11 Clarifying rules 
on the order in which remedies may be involved + + 0 + Status quo + 
clarification of the existing rules (Sub-option 2) 
12 Addressing 
online auctions  + + + ++ E-auctions 
excluded from the right of withdrawal but subject to information requirements (Sub-option 2) 
13 Addressing M-
commerce and 
T-commerce 
 0 ++ 0 + Rules on pre-
contractual 
information adjusted to M-commerce and T-commerce 
14 Exemptions 
from the scope of the distance selling directive 
 0 + + + Full exclusions 
(car rentals) combined with partial exclusions. 
15 Exemptions 
from the scope of the doorstep selling directive 
 + 0 + ++ Exclusion of 
emergency services, craftsman services, home-delivery schemes and foodstuffs (Sub-option 2) 
16 Clarifying 
relationships between rules applicable to distance and direct selling 0 0 0 0 Sub-option 1 
(status quo) to be read in combination with the new definitions of distance and off-
 
EN 36   EN  premises 
contracts (see points 2 and 3 above) which clarify the relationships between the two types of contracts.
 Overall 
assessment of this option +++ +++ ++ +++  
The detailed explanations of the content of the legislative changes as well as the detailed 
assessments of its impacts can be found in Annex 5  
5.7. Assessment of PO 5 Maximum legislative changes  
Summary of PO 5 
The fifth Policy option includes PO4 and three additional legislative proposals which would 
both fit into a horizontal inst rument and address some vert ical aspects. Two of those 
additional legislative proposals strengthen the consumer protec tion in relation to faulty 
products, i.e. the extension of the legal gua rantee in the event of recurring defects the 
obligation of the seller to inform the consumer on spare parts. An alternative sub-option mainly based on the status quo complemented by a clarification has also been subject to a 
cost/benefit analysis (see Annex 5). 
The third legislative change aims at improvi ng payment systems possibly by ensuring that 
consumers can obtain refunds when they have paid by cards (the so-called "charge-back" 
rights) for example where the consumer has not received the goods or has exercised his 
right of withdrawal. 
These represent ‘far-reaching’ proposals that ar e subject to high levels of uncertainty in 
terms of impact but where it is assumed th at the costs imposed on business might possibly 
outweigh the benefits for consumers (see tabl e below). As indicated above, this policy 
option is assessed on an incremental basis. As a result, this table assesses exclusively the 
three changes introduced  specifically by PO5.  
 
Nature of the 
"legislative change" Contribution to 
the bette r 
functioning o f 
the IMMinimising t he 
burden of EU legislation fo
r 
businessEnhancing 
consumer confidence Improving the 
quality of 
legislation Comments 
Introducing new rules + + ++ ++ If any defect in 
 
EN 37   EN Nature of the 
"legislative change" Contribution to 
the bette r 
functioning o f 
the IM Minimising t he 
burden of EU legislation fo
r 
business Enhancing 
consumer confidence Improving the 
quality of 
legislation Comments 
with regard to the 
extension of the legal guarantee in the event of recurring defects the goods is not 
remedied the guarantee period would be extended (Sub-option 1) 
Introducing new rules with regard to the obligation of the seller to inform the consumer on spare parts -- -- +++ + New information 
obligation on the availability of after sales services and spare parts (Sub-option 1) 
Improving payment systems / introducing rules to ensure that consumers can obtain refunds ("charge-back" rights) 0 ++ ++ 0  
Overall assessment of 
this option 0 - +++ +  
The detailed explanations of the content of the legislative changes as well as the detailed 
assessments of its impacts can be found in Annex 5  
 
EN 38   EN 5.8. Assessment of PO 6 Full Harmonisatio n with an Internal Market Clause 
Summary of PO 6 
This policy option includes the legislative proposals covered by PO 3 or PO4 and an 
internal market clause applying to the non-fully harmonised aspects. The public 
consultation on the Green Paper showed that this option would be strongly opposed by the 
great majority of Member States and consumer  stakeholders (see supra pages 25 and 26). It 
would also involve a major policy change a few months after the co-legislators adopted the 
Rome I Regulation, which contains a review  clause which allows the Commission to 
evaluate its practic al application.  
Two sub-options have been envisaged but between these two sub-options, many other 
variants and corresponding impacts are possible:  
• In sub-option 1, the Internal  Market clause could apply in combination with PO 
3; in this case, the key aspects of consumer contra ct law would not be fully 
harmonised (e.g. the right of  withdrawal and the pre- contractual information 
requirements) but would be subject to an  Internal Market clause. For such key 
aspects, consumers would be subject to  the law chosen by the trader (i.e. a 
foreign law) and the courts having jurisd iction under the Brussels I Regulation 
(i.e. the courts of the country where the consumer resides) would have to apply 
a foreign law they are unfamiliar with. The same considerations would apply to mediators and enforcement agencies.  
• In sub-option 2, the Internal  Market clause would appl y in combination with PO 
4; in this case, the key consumer contract law aspects would be fully 
harmonised and the Internal Market clau se would apply only to some other 
contract law issues. These issues vary from one national legal system to the 
other; they mainly relate to general contract law matters which usually arise 
only in the case of litigation. Complianc e with such rules normally does not 
require the adaptation of the traders' sta ndard contract terms and therefore is not 
a source of administrative burden for businesses. Examples of these issues are the rules on the formation of contract (e.g. offer and acceptance, mistake or misrepresentation), and the general contra ct law remedies (e.g. termination or 
rescission or damages). These are issues  which are outside the scope of the 
Review of the Consumer Acquis.  
There is no need to assess the co mbination of the Internal Market  clause with PO  5 since, as 
shown in the assessment of this policy option, PO 5 is an inferior regulatory option.  
Sub-option 1: the impacts of the internal mark et clause combined with legislative changes 
brought by PO3 
 
EN 39   EN Nature of the 
"legislative change" Contribution to the 
better functioning of 
the IM Minimising the 
burden of EU 
legislation for 
business Enhancing consumer 
confidence Improving the quality 
of legislation Comments 
Overall assessment 
of this option ++ +++ -- +  
The detailed explanations of the content of the legislative changes brought by PO3 as well as 
the detailed assessments of its impacts can be found in Annex 5 
Sub-option 2: the impacts of the internal mark et clause combined with legislative changes 
brought by PO4 
Nature of the 
"legislative change" Contribution to the 
better functioning o f 
the IM Minimising the 
burden of EU 
legislation for Enhancing consumer 
confidence Improving the quality 
of legislation Comments 
Overall assessment 
of this option +++ +++ + +  
The detailed explanations of the content of the legislative ch anges brought by PO4 as 
well as the detailed assessments of its impacts can be found in Annex 5  
5.9. Comparative assessment of policy options 
Table 5.1 below provides a comparative overv iew of the POs, showing the extent to 
which each of the options is expected to contribute to th e policy objectives and their 
effects on cross-border trade, consumer  protection, on the environment and public 
administration and enforcement costs. Fina lly, the costs of the Policy options are 
compared against those of the Status Quo.  
The comparative assessment below shows th at the Preferred Polic y option is option 4 
(which also includes option 3) . In this table each legislative Policy option is assessed 
as the accumulation of the changes that  are introduced by that option (e.g. the 
assessment of PO 4 covers all the 20  changes introduced by that option). 
Table 5.1 - The cumulative assessment of POs – comparison of the accumulation of changes 
introduced by policy options 
Objective to be 
achieved/ Policy Options (Anticipated impacts rated from ---(highly negative contribution 
to objective) to +++ (high achievement of objective)  
 
EN 40   EN PO
1  PO 2  PO 2 
to 3 PO2  
to 4 PO2 to 
5 PO 6 problem 
addressed  Status quo Non legislative 
approaches Minimum legislative 
changes Medium legislative 
changes 
Maxim
um 
legislati
ve 
changes Minimum 
legislative 
changes (PO3) 
combined with 
an internal 
market clause Medium 
legislative 
changes 
(PO4) 
combined 
with an 
internal 
market clause 
1. Contribution 
to the better functioning of the Internal Market - 0 + +++ +++ ++ +++ 
2. Minimising 
the administrative 
burden of EU 
legislation for businesses - 0 ++ +++ ++ +++ +++ 
3. Enhancing 
consumer confidence 0 + + +++ +++ -- + 
4. Improving the 
quality of legislation - - + +++ +++ + +++ 
Effects on cross-
border trade NA No 
effect Mino
r positive effect Importan
t positive effect Importa
nt positive effect  Important 
positive effect for traders but important negative effect for consumers Important 
positive effect for traders and certain negative effects for consumers 
Effects on the level of consumer protection NA Minor 
positive effect Some 
positive effect Positive 
effect Importa
nt positive effect Possible 
negative effect  Negative 
effect in case of litigation 
Environmental effects NA No 
effect Impor
tant positiPositive 
effect Positive 
effect  Positive effect Positive effect 
 
EN 41   EN ve 
effect 
Employment effects No 
effect Limite
d effect Limit
ed effect Limited 
effect but slightly higher than PO2 or PO3 Limited 
effect but slightly higher than PO2 or PO3 Limited effect 
but slightly higher than PO2 or PO3 Limited effect 
but slightly higher than PO2 or PO3 
Public sector administration/enforcement costs NA Some 
additional costs Some 
additional costs Some 
additional costs Some 
additional costs High additional 
costs for national courts  
and enforcement 
bodies High 
additional costs for national courts and enforcement bodies 
In the table below each legislative Policy option is assessed on an incremental basis (e.g. the 
assessment of PO 4 focuses exclusively on the additional 16 changes in troduced on top of PO 
3, which forms part of PO 4). 
Table 5.2 - The incremental assessment of change s introduced by the specific policy options  
Policy Options (Anticipated impacts rated from --
- (negative contribution to objective) to +++ 
(high achievement of objective)  
PO 1 PO 2 PO 3 PO 4 PO 5 Objective to be achieved/ problem 
addressed  Status quo Non legislative 
approaches Minimum 
legislative 
changes Medium 
legislative 
changes Maximum 
legislative 
changes 
1. Contribution to the better functioning 
of the Internal Market - 0 + +++ 0 
2. Minimising the administrative burden 
of EU legislation for businesses - 0 ++ +++ - 
3. Enhancing consumer confidence 0 + + ++ +++ 
4. Improving the quality of legislation - - + +++ + 
Effects on cross-border trade NA No 
effect Minor 
positive effect Importa
nt positive No 
effect 
 
EN 42   EN effect 
Effects on the level of consumer 
protection NA Minor 
positive effect Some 
positive effect Positive 
effect Importa
nt positive effect 
Environmental effects NA No 
effect Importa
nt positive effect Minor 
positive effect Positive 
effect 
Employment effects No 
effect Limited 
effect Limited 
effect Limited 
effect but slightly higher than PO2 or PO3 Limited 
effect but slightly higher than PO2 or PO3 
Public sector administration/enforcement costs NA Some 
additional costs Some 
additional costs Some 
additional costs Some 
additional costs 
6. M ONETISATION OF IMPACT OF THE PREFERRED OPTION  
6.1. Introduction 
In accordance with European Commission IA guidelines, during the IA process that 
preceded this proposal, data was systemati cally collected in order to quantify the 
expected impacts of the preferred opti on in terms of compliance costs and 
administrative vis-à-vis the baseline scenario. 
For more information on these topics, please refer to Annex 7  
6.2. Administrative burden 
The assessment of administrative costs impos ed by the existing Directives and Policy 
Options 4 and 6 (sub-option 2) all based on full harmonisation of the EU Consumer 
Acquis, followed the method outlined in  Annex 10 of the current Commission’s 
impact assessment guidelines. The data so urces and assumptions, as well as basic 
calculations are further elaborated in Annex 7. 
The calculations include a consideration of the conditions created by the 
fragmentation of rules as a consequence of minimum harmonisation and the Rome I 
regulation. The results are reproduced in  the table on the following page.  
Given the full harmonisation of the propos al, for existing distance sellers the 
additional burden generated by the proposal (the cost of change) is 2153 Euros per 
 
EN 43   EN company. For existing doorstep sellers, th e cost of change is 3653 Euros per 
company. No additional burden is envisaged fo r face-to-face retailers. By incurring 
this cost of change, existing businesse s will comply with the relevant legal 
requirements across the EU and will be able  to trade freely in 27 Member States. 
This will result in a significant reduction of the burden for companies wishing to sell cross-border in the EU.  
For example, a distance seller  already trading in his home country will be able to sell 
to 27 Member States by incurring a co st of 2153 Euros instead of 70.526 Euros. 
Similarly, a doorstep seller al ready trading in his home c ountry will be able to 
expand his operations to 27 countries fo r 3653 Euros instead of the sum of 71.625 
Euros that he would have to incur un der the current, fragmented regime.  
The cost 
for a new company  that complies with the regulations of 27 Member States 
will diminish. For a newly established distance selling business, the burden will be 5526 Euros instead of 70.526 Euros. For a newly established doorstep selling 
business, the burden will be 6625 Euros in stead of 71.625 Euros. Companies that are 
already trading cross-border will have to incur the cost of fragmentation during the interim period between the entry into fo rce of the Rome I Regulation and the 
implementation of the possible legislative proposal on consumer contractual rights.  
Given that according to the 2008 Eurobarome ter, out of 75% of traders who do not 
currently sell cross border using means of  distance communication, almost half 
indicated that they would start doing so if regulat ions were harmonised, the 
significance of these cost reductions is even gr eater. If the number of distance sellers 
trading cross-border were then  to increase by 31% (not factoring in multiplier effects 
that could be present), the impacts on trad ing volumes would be very significant.  
It can thus be anticipated on the basis of this percentage that - without factoring 
multiplier effects – 465.000 di stance sellers would sell  cross-border after the 
harmonisation of the EU Consumer Acquis. This argument of course depends on the 
relative weight of the costs stemming from  the fragmented regulatory framework 
versus other exogenous sources. Such sour ces could be the pan-European macro-
economic environment, fiscal conditions, dom estic market conditions, as well as the 
outlook of individual firms. This IA does not  attempt to rank these factors. But the 
research and analysis conduc ted during the IA, as well as  the data collected from 
stakeholders in the course of  the IA suggests that  the relative significance of the costs 
stemming from the fragmented regulatory framework is quite high. For example, 
60% of respondents to Eurobarometer 2008 rated these costs stemming from the 
legal fragmentation of the EU Consumer Ac quis as being fairly or very important 
and considered that they caused more importa nt obstacles to cross-border trade than 
other costs such as those arising from la nguage differences, cross-border after-sale 
services or cross-border delivery costs. 
Put in simple terms of winners and losers , the most prominent conclusions of the 
foregoing analysis are: 
• Companies currently only trading domestically, but considering cross-border 
expansion will be winners since they will benefit from the much lower costs due 
to full harmonisation 
 
EN 44   EN • Companies currently trading with 1-2 Me mber States but considering expansion 
to more Member States will win in te rms of much lower costs due to full 
harmonisation 
Some of the companies tr ading only domestically with no interest  to expand cross-
border will marginally lose out due to their small one-off costs of adaptation to the regulatory changes. For both dist ance and direct sellers, there will be an adjustment 
cost (one-off cost) at EU level as they will need to adapt to the new directive, familiarise themselves with the obligations  and draw up new standard contract terms 
and, in particular for direct sellers, orde r forms which incorporat e the standard form. 
For face-to-face retailers, a minor additional burden is envisaged for specific types of face-to-face businesses (such as second-hand shops acting as intermediaries of consumers). Other shops, which trade on the basis of goodwill, will not be affected. All the costs involved in this adaptation are one-off costs. However, this is without prejudice of the net effects that will accrue through the si mplification of the existing 
regulatory framework. Furthermore, when the simplification effect of the proposal is 
taken into account, the propos ed policy option produces sign ificant benefits in terms 
of administrative burden.  
No major impacts are expected in terms of administrative burden on public 
authorities. The only administrative cost generated by the proposal would be that 
incurred by the national authorities in order to notify to the Commission then 
national case law on unfair contract terms in the context of a comitology procedure. 
The cost of this reporting obligati on is expected to be negligible. 
 
EN 45   EN   Existing burden Cost of change for existing 
companies Cost for a 
new company wishing to sell in 27 
 
EN 46   EN 7. M ONITORING AND EVALUATION  
It is a requirement of European Commissi on Impact Assessments to indicate the way 
in which the effects and consequences of the preferred policy option should be 
monitored and evaluated. This Section iden tifies potential i ndicators and data 
sources. It is assumed that the preferred option would be subjec t to reporting on the 
progress of transposition by Member States. 
                                                 
28 Assuming all distance sellers decided to trade cross- border in 27 Member States the total burden would 
be approximately 106 bn euro. Member 
States 
Total Per 
company Total Per 
company Per company 
Distance 
Sellers – trading only domestically 8.288.850.000 5526 
Distance 
Sellers – trading with 1-2 additional 
MS 1.113.108.000 9276 
Distance 
Sellers – trading with 3-5 additional MS 1.397.331.000 15.526 
Distance 
Sellers – trading with EU27
28  70.526 2.018.264.027 2153 5526 
Doorstep 
Sellers– trading only domestically 8.811.250 6625 
Doorstep 
Sellers– trading with EU27 95.261.250 71.625 4.857.945 3653 6625 
Store Retailers  2.521.548.750 750 No cost of change 750 
 
EN 47   EN 7.1. Potential indicators and data sources 
At the strategic level the monitoring and evaluation process should focus on: 
• Changes in the costs of legal uncertainty. Legal uncertainty is difficult to measure. 
However, the impacts of the preferred optio n are very sensitive to the changes in 
legal uncertainty that accrue. Research, based upon the experiences of a ‘sample’ 
of B2C traders within the EU would be of value. 
• The numbers (and proporti ons) of consumers experien cing problems of different 
type for different types of sales a nd for different types of products  
• The numbers and proportions percentage of  consumers seeking redress as a result 
of having had a problem, 
• The costs and time needed to achieve redress 
A number of non routine monitoring and evaluation activities could generate 
evidence as to the impact of the option that  will be chosen and insights into whether 
and what further action should be ta ken. They include, in particular: 
• Case studies of particular traders that  increase B2C cross border trade. Such 
systematic case studies should be undertak en over a period of years could provide 
insights into the extent to which the activity reduces price differentials and 
generates social and environm ental costs and benefits.  
• A panel (s) of traders could be establishe d and the costs associated with the option 
that will be chosen peri odically reviewed. The com position of panel should be 
quasi representative of traders involv ed in cross border B2C transactions. 
• Establishing a small ‘legal experts’ group to review evid ence on the legal 
functioning of the option that  will be chosen. Such a group could, if independent 
both provide insights as to wh ether the legislation within  the option that will be 
chosen has functioned as planned an d also comment on proposed updates. 
7.2. Other relevant developments 
The Commission has recently established a Co nsumer Market Watch that could be 
relevant to the future monitoring and eval uation of the prefe rred option. There would 
be merit in monitoring the pr ice differential a basket of  goods that are suitable for 
cross border sales and aspects of the st andard terms and conditions offered by 
traders, such as length of withdrawal period that exceed the harmonised standards. 
An evaluation of consumer protection le gislation for 2016 is planned in SANCO´s 
Multiannual Evaluation Programme (appr oved by the Management Team). The 
provisional title of the ev aluation is "Consumer Protec tion Acquis", and includes the 
four directives under review in addition to other related pieces of legislation.