COR/MISSION OF THE EUROPEAN COMMUNITIES 
C0M(92) 11 final - SYN 411 
Brussels, 20 May 1992 
Proposal for a 
COUNCIL DIRECTIVE 
on the protection of consumers in respect of contracts 
negotiated at a distance (distance selling) 
(presented by the Commission) 
_ 1 _ 
EXPLANATORY MEMORANDUM 
I GENERAL SITUATION 
a) Community policy background 
The Community decided in 1972 to institute a specific policy for 
consumer protection. 
The section relating to protection of consumers' economic interests 
in the preliminary Community programme in this field (Council 
Resolution of 14 April 1975) already mentioned that the consumer 
had to be protected "against demands for payment for unsolicited 
goods and against high-pressure selling methods". 
The second programme (Council Resolution of 19 May 1981) 
incorporated the same wording, adding that a study should also be 
made of the economic implications for the consumer of "the use of 
new data-processing and telecommunications technology". 
Ttie third programme, referred to as "A New Impetus for Consumer 
Protection Policy" (Council Resolution of 23 June 1986) stated in 
section 29 that: "If the common market is to be fully effective, it 
must be made easier for consumers to buy goods in other countries" 
and indicated that the Commission would submit proposals for the 
new systems (videotex, television, telephone) which enable 
consumers to place orders with their suppliers from their homes. 
The fourth Community programme, known as the "Three-year action 
plan 1990-1992" (C0M(90)98 of 3 May 1990) states that: 
"To achieve full benefit from the internal market, it is 
necessary that its citizens be prepared to use that market by 
purchasing goods and services available anywhere in it. 
"Cross-frontier selling by electronic means using television 
and new communications technology, in addition to existing 
mail-order business, will stimulate demand for cross-frontier 
purchasing." 
2 -
In the section describing the action to be taken, this fourth 
programme therefore includes the 
"Proposal of a directive on distance selling (1990)". 
The present text is such a proposal. 
This problem has since been discussed in another Community 
text, the communication (C0M(91)41 final) "Towards a single 
market in distribution". Section 3.2 is headed: "Providing a 
new set of rules for new forms of distribution without 
frontiers". 
It is stated that: 
"An area of obvious potential importance is the small but 
growing multinational market in distance selling based on 
new techniques of multilingual publishing, broadcasting and 
advert is ing". 
b) The economic phenomenon 
New technologies 
Selling at a distance increasingly involves the use of new 
technologies for soliciting custom or for obtaining the consent 
of the consumer. 
The forms of media used in soliciting custom are as follows : 
Wr i tten med ia 
Unaddressed printed matter 
Addressed printed matter 
Standard letter 
Press advert is ing 
Fax 
Auditory media 
Telephone with human intervention 
Telephone without human intervention (automatic calling 
mach ine) 
Radio 
Visual media 
Teletext 
Home computer 
Minitel, Bi Idschirmtext 
3 -
Audiovisual media 
Telev is ion 
Video cassette or video record reader 
Picture phone (videophone) 
Some of these methods, which are interactive, may be used to 
record orders. The most recent innovation is the telephone 
without a human caller: this is a speech computer which records 
the consumer's enquiry. 
Table No 1 in Annex 1 shows the 
technologies. Over 95% of households 
television set. prevalence of certain 
in the Community own a 
A marketing technique may involve the use of several 
technologies. Thus in television selling, the order is placed 
by computer, telephone or mail but cannot (as yet) be conveyed 
via the medium used to disseminate the offer. Similarly, a 
solicitation may make use of several media: a catalogue is 
often followed by a mail shot and sometimes a telephone call. 
Consumers' use of the various methods of ordering is changing 
very quickly. 
The representative of the French trade association, for 
example, estimates that by 1995 only 25% of orders in his 
country will be placed by mail. 
La Redoute, the leading French distance seller, received 21 
million orders in 1990. 27% were made by post; 45% by 
telephone and 14% by Minitel. 
The attached table also shows that there are considerable 
differences between countries. 
Percentage turnover by method of ordering in major distance-selling 
firms 
1990 
Mai I 
Telephone 
Minitel 
Others Belgium 
89 
8.7 
2.3 France 
61 .8 
22.3 
9.5 
6.4 Spa in 
75 
13 
12 Japan 
39.4 
56.7 
3.9 
- 4 -
Attention should also be drawn to the increasing importance of 
credit in distance selling. The attached table shows that in 
France more than 25% of sales involve credit. In Belgium, the 
figure is also 25%. 
Percentage turnover on distance selling in France from cash and 
credit sales 
Cash 
sales 
Credit 
sa les 1980 
82.8 
17.2 1982 
82.8 
17.2 1984 
79.5 
20.5 1986 
78.9 
21 .1 1988 
75.1 
24.9 1990 
73.9 
26.1 
(Source SVPCD October 1991) 
Structure of the market : 
The attached table shows the level of sales by mail-order 
in certain Member States. These figures are provided by 
the European Mail-Order Traders Association. 
The firms belonging to these associations do not represent 
the entire market. In Belgium, for example, the 
Association des Entreprises de Vente a Distance (AEVD) 
estimates that it represents 75% of the market. 
Country 
Germany 
France 
Great Britain 
Italy 
Sweden 
Swi tzerland 
Austr ia 
Nether lands 
Be Ig i urn 
Denmark 
F inland 
Spain Turnover 1990 
(mill. ECU) 
14 278 
5 921 
5 204 
1 026 
1 024 
1 021 
962 
823 
580 
532 
460 
393 Share of 
trade 1990 
4.2 (1) 
2.5 
2.8 
0.5 
2.8 
2.6 
3.9 
1 .6 
1 .1 
2.8 (1) 
1.5 
0.005 Share of non­
food trade 
4.3 
5.1 
4.6 
1 .4 
4.8 
5.0 
-
2.7 
1.8 
4.8 
2.5 
-
(1) 1989 Source: EMOTA 
This table shows that 80% of distance selling of products takes 
place in only three of the Community countries. For these 
three countries, this type of sale represents between 4 and 5% 
of all non-food trade. 
- 5 -
The largest distance selling companies in the world are 
European. As can be seen from the attached table, European and 
American firms Jostle for position in this market. 
Ranking of the 13 largest mail-order firms in the world in 1990 
Firm 
Otto Versand ** 
Que I Ie 
Great Universal stores 
(GUS) 
Sears, Roebuck & Co 
United Automobile 
Association Services 
J.C. Penney 
Time Warner 
Tele-Communicat ions 
Reader's Digest 
La Redoute* 
Bertelsmann* 
GEICO 
Neckermann Country 
FRG 
FRG 
GB 
USA 
USA 
USA 
USA 
USA 
USA 
France 
FRG 
USA 
FRG Turnover in 
m 
7 
6 
4 
4 
4 
3 
2 
2 
1 
1 
1 
1 
1 1 I ion 
$ 
415 
350 
685 
300 
291 
315 
784 
602 
757 
642 
600 
572 
484 Sector 
General 
General 
General 
General of activity 
merchandise 
merchandise 
merchandise 
merchandise 
Insurance 
Genera I 
Pub Iish 
Cable 
Pub Iish 
General 
Pub Iish merchandise 
ing 
ing 
merchandise 
ing 
Insurance 
Genera I merchand ise 
* Turnover 1989 
** Spiegel turnover included (American subsidiary) 
Source: Marketing Logistics INC. 1990 
The distance selling firms have already largely taken on a 
European character. An analysis of the subsidiaries (Table No 
2 in Annex 1) of the Otto-Versand and La Redoute groups clearly 
reveals strategies of establishment throughout the entire 
Community. Even some of the smaller firms succeed in 
establishing a presence in virtually all the Member States 
(Yves Rocher-Damart). 
In the long term, strategies of establishment by means of 
subsidiaries may give rise to problems of market 
compartmentalisation. A recent study carried out for the 
Consumer Policy Service showed that some firms were extremely 
reluctant to send their catalogues to consumers across national 
frontiers. It is essential to the functioning of the internal 
market that the consumer should be able to order from a firm 
outside his country even if that firm has a subsidiary in the 
country where the consumer is resident. However, only very 
large firms can pursue a policy of establishing subsidiaries in 
all the Member States. 
- 6 -
c) Necessity for Community legislative action 
- Position of the consumer in this type of transaction : 
Marketing at a distance is typically a three-stage operation: 
the consumer receives an offer of a product or service: a 
written, visual or oral description, an indication of the price 
and terms etc.; 
on this basis, he places an order; 
subsequently, he receives the product or service. 
The offer has been conveyed to the consumer by a means of 
communication at a distance. The consumer has also used such a 
means of communication to make contact with the trader. 
As a result of this two-fold use of remote communication, the 
consumer and trader are not physically in each others' 
presence. 
The different types of sale may be summarised in the following 
table: 
Simultaneous presence No simultaneous presence 
of consumer/trader of consumer/trader 
Commercial Conventional selling Automated commercial 
premises premises 
Consumer's home Door-to-door selling Distance selling 
Some analysts have tried to break down distance selling into 
several sub-categories: mail-order selling based on an offer 
issued using a written medium, telephone selling in which all 
phases of the selling process are carried out by telephone, 
selling by television etc. Others have taken the view that the 
use of certain methods such as the telephone or television 
brings these forms of sale closer to doorstep selling than to 
ma iI-order selIing. 
- 7 -
Detailed study of the problems encountered by consumers shows 
that the difficulties arising from door-to-door selling are 
quite different from those involved in distance selling. 
Selling by television, for example, cannot be compared with 
doorstep selling, since the consumer can always switch off his 
set. 
While mail remained the principal method of ordering, the order 
took several days to be conveyed. A mail-order purchase is one 
which is contemplated for some time beforehand, and by the time 
delivery is made by the postman, several weeks will have elapsed. 
Having regard to these delays, the time spent filling out the order 
form assumes little importance. 
Today, purchasing at a distance is much more in the nature of an 
impulsive purchase, and the customers' demand for speed is much 
greater. 
The act of purchasing is clearly instigated by the product itself 
and its presentation in the catalogue. However, the method of 
making an order must not be seen as impeding the process. 
Legislative pressure in the Member States 
It is evident from an analysis of the legal provisions of the 
Member States with regard to contracts negotiated at a distance 
that there has been strong pressure since 1987 to take legislative 
action. 1987 was also the year that television shopping arrived in 
Europe. 
It may be observed that the notion of "distance selling" appears 
for the first time in the Member States' texts in 1987. While this 
notion had never previously been used in any legislative 
instrument, it then appeared simultaneously in a Danish text 
(Chapter 4 of the Law of 23.12.1987) and in a French text (Decree 
of 3.12.1987). In the same year, Portugal adopted a general law 
dealing with "mail-order selling", which in fact covers all forms 
of distance selIing. 
- 8 -
Be IgIurn 
In August 1991, Belgium adopted a law concerning "distance 
selling". Its definition is very close to that used by the present 
proposal. It covers goods and services as well as all the means of 
communication at a distance. The public authorities can, by way of 
royal decree, take many forms of action for the purpose of its 
applicat ion. 
Denmark 
Denmark introduced legislation concerning "distance selling" in 
1987. In particular, this text provided for a cooling-off period 
of seven days. It also prohibited telephoning the consumer without 
his prior consent. A law enacted in June 1990 provided for the 
display of prices in distance selling. 
Germany 
In Germany, only the use of Bi Idschirmtext is covered by a specific 
law. 
On the other hand, there have been major court rul ings on telephone 
marketing, which is prohibited. (Decisions of the 
Bundesgerichtshof of 1970-1989-1990). The distribution of 
unaddressed advertising through letterboxes is prohibited by the 
case law (BGH Judgment of 10.12.1988), if the consumer has made his 
object ion known. 
Greece 
Greece regulated mail-order selling by a ministerial decision 
adopted in July 1990. This text was amended in September 1991. 
Spa in 
No national legislation exists in Spain concerning this area, but 
several regions have legislated in the area of distance selling 
(Aragon/1989 - Galicia/1988 - Valencia/1986). There are proposals 
in other regions (Catalonia). 
France 
There is no general text on distance selling in French law, but 
regulatory provisions are to be found in several laws, decrees and 
orders. Thus all types of distance selling are regulated in 
different ways. (Law No 88/21 of 7.1.1988. Law No 89/421 of 
23.6.1989, Law No 87/1008 of 31.12.1989). There is also a law 
dealing specifically with television shopping. 
- 9 -
Ireland 
No specific provision exists in Ireland for distance selling. The 
only relevant provision is the prohibition of inertia selling (Sale 
of Goods Act 1980). 
Italy 
The Law of 29.12.1990 implements the Community directive in the 
matter of door to door selling but extends its field of application 
to mail-order selling and particularly to sales by television. 
Italy is in fact the country where this form of selling is most 
practised. The implementing decree is still under discussion. 
Luxembourg 
Selling by correspondence Is regulated by the Law of 25.8.1983, 
which provides for a cooling-off period of 15 days after receipt of 
the goods. Telephone marketing is prohibited by the law on door to 
door selling. A Grand-Ducal regulation on videotex was adopted in 
February 1991. 
The Nether lands 
No specific law on distance selling exists in the Netherlands. The 
New Civil Code comes into force in January 1992. Inter alia, it 
makes it illegal to demand more than 50 % of the purchase price of 
a product in advance. 
Portugal 
Portugal was the first Member State to legislate in general terms 
for all forms of distance selling : by Decree-Law No 272/87 of 
3.7.1987. This text is very close to the Belgian text. It also 
provides that the consumer cannot be required to make any payment 
in advance. 
United Kingdom 
No legislative provision exists except for inertia selling 
(Unsolicited Goods and Services Acts 1971-1975). All distance 
selling is regulated by codes of conduct adopted under the 
authority of the Office of Fair Trading. There are also several 
other voluntary provisions relating to the protection of deposits 
(Mail Order Protection Scheme). 
- 10 -
I I AIMS 
Marketing at a distance will be one of the areas in which the 
operation of the completed internal market will be most obvious and 
tangible to consumers. 
Free movement of products is virtually complete and the consumer 
buys the products he finds on traders' shelves. The consumer 
benefits from free movement of products but is not actively engaged 
in the process. 
Free movement of services is developing much more slowly. The 
general introduction of mutual recognition is a prerequisite for 
cross-frontier activity. 
Distance selling restores the initiative in cross-frontier 
purchasing to the consumer. It is the consumer who, on the basis 
of a cross-frontier proposal, takes the initiative and approaches a 
firm located in a country other than his own. 
Opening of the frontiers in this field means for example the 
opportunity for a French consumer to purchase from a German 
catalogue via Minitel, for a Spanish consumer to purchase by mail­
order on the basis of an advertisement in the Portuguese press or 
for a Luxembourg consumer to make a purchase by telephone from a 
British teleshopping programme. 
in certain trade circles, it is asserted that, of all the 
distribution systems, distance selling is that which can benefit 
most from open frontiers. The major firms active in this sector 
have long since understood what is at stake and their development 
strategy is entirely geared to all the countries in the Community. 
The major innovation in this market is the widespread use of new 
technologies both to offer products or services and to obtain the 
consumer's order. Among the means used to disseminate the offer 
are the telephone (telephone canvassing), radio, television and 
home computers (Minitel, BiIdschirmtext). 
All the interactive technologies are used to obtain the consumer's 
agreement: telephone, teletext, computers, audiotext. 
- 11 -
An analysis of the use of these new technologies shows that there 
is a specific form of commercial selling, distance selling, which 
is descended from the traditional mail-order trade. Those engaged 
in this sector have been very much aware of this development and 
several of the national trade associations have changed theij; names 
in recent years to include the idea of "distance". 
There are two basic trends: 
distance selling is being used for products or services which 
were formerly not sold in this way (foodstuffs, services); 
more and more firms are marketing their products or services 
directly by these new methods. 
Many Member States have reacted to this technological explosion and the 
relative insecurity to which it gives rise in legal terms, by enacting 
rules. A State-by-State analysis of the situation clearly shows that 
there were scarcely any legislative provisions for this field until 
1987 but that the number of texts has increased sharply since. It is 
the Commission's Job to avoid such fragmentation. The Directive 
therefore proposes a general framework for contracts negotiated at a 
distance, to be supplemented by self-regulatory measures as proposed by 
the Recommendation. 
The first aim is to provide legal safeguards for the consumer. Today, 
the consumer may place an order by telephone and be answered by a 
"voice-response computer". The consumer is hardly aware that he is not 
communicating with a human being but with a machine. What kind of 
contract has Just been concluded? With whom has the consumer made a 
contract? What information does the consumer receive7 What proofs are 
there in the event of litigation? What law applies to the contract? 
What replaces the signature? These legal safeguards will also allow 
firms to develop their activities throughout the community within an 
homogeneous framework. 
The second aim is to safeguard the consumer's right of choice. The 
right of choice first of all means that it must be possible not to 
receive certain types of solicitation of custom such as automatic 
telephone calls or faxes. There are various ways of establishing the 
consumer's right to freedom from intrusion and respect for his privacy. 
The right of choice also encompasses the quality of the information the 
consumer receives before the transaction and while it is being carried 
out. The basic principle is that the use of new technologies must not 
lead to a reduction in the information provided. 
- 12 -
Since the famous mail-order catalogue "Bon-Marche" was first published 
in 1865, certain traders have allowed the consumer the right to cancel 
the contract when he receives the goods. The comparative study shows 
that this practice is more or less generally followed throughout the 
Community, on a mandatory basis in seven Member States and on a 
voluntary basis in the other five (see Table No 3 of Annex 1). 
A further aspect of the right of choice is the prohibition of inertia 
selling and the principle that failure of a consumer to reply to a 
solicitation does not constitute agreement. 
The third aim is to ensure repayment to the consumer in the case if 
non-performance of the contract. Consumers who pay in advance for a 
product or service must be sure that they will recover their money if 
the product is not delivered or the service not rendered. The American 
distance selling market currently suffers from widespread fraudulent 
practice of this type, to such a degree that consumers in the United 
States have set up a league to combat fraud in telephone selling. On 
the European market, too, there is malpractice by a number of firms 
which take advantage of the fact that different regulations apply in 
different Member States. The risk is particularly important when the 
firm is difficult to identify and locate.These practices harm the 
consumer, but also the trade as a whole. The directive therefore 
includes a provision relating to certain types of payment by card. The 
Recommendation urges the trade to seek ways of guaranteeing consumers' 
deposits if advance payment is required. 
- 13 -
III REACTIONS 
The proposal which is presented is the result of several months of 
discussion. It has largely taken account of remarks and criticisms 
made in response to previous versions. Therefore all the opinions 
received are based on these older projects. 
In April 1991, a discussion document was drawn up under the title 
"Discussion paper for a directive on distance selling". This text 
was disseminated by two channels: 
to the trade, via the Committee on Commerce and Distribution, a 
consultative body which advises DG XXIII; 
to consumers, via the Consumers' Consultative Council, which 
advises the Consumer Policy Service. 
In the light of all the comments received, a preliminary draft 
proposal was drawn up in July 1991. 
The Committee on Commerce and Distribution and the Consumers' 
Consultative Council were once again consulted. 
In its opinion of 13 September 1991 relating to the discussion 
document distributed in April 1991, the Committee of Commerce and 
Distribution argued that the text should be either a recommendation 
or a 
"(limited) framework directive, leaving sufficient room for 
manoeuvre for traders and their professional associations to work 
out self-regulatory provisions". 
In it's final opinion of 16th January 1992 concerning the proposal 
of July 1991, the CCD stated clearly that "after careful 
consideration and discussion of the reasoning behind the draft 
proposal, the CCD is not convinced about the need for such an all 
embracing directive . .. and rejects the Commission's arguments" 
and maintains it's opinion of 13th September 1991. 
With regard to the Articles, several of which were criticised by 
the Committee, particularly the provisions concerning the guarantee 
fund, the national observers, the legal and administrative means of 
recourse, and the inclusion within the scope of the application of 
the directive of services such as the reservation of hotel rooms, 
restaurant tables and other equivalent services. 
In it's opinion dated the 16th January 1992, the CCD stated that it 
was in favour of a European code of good practice. 
Numerous associations and professional organisations have made 
their opinions known. Among others, CECD/FEWITA/GEDIS representing 
the European trade note that a recommendation in the matter of 
distance selling is sufficient and that a directive seems 
premature. Moreover, the European Association of Mail order 
considered that the proposed Directive should be abandoned and that 
recommendation supplemented by self-regulatory rules would be 
sufficient. 
- 14 -
On the other hand, the European Direct Selling Federation hoped for a 
maximum amount of harmonisation and welcomed the fact "that the 
Commission had drafted a text designed to protect consumers in respect 
of contracts negotiated at a distance". 
The Eurochambres and the Comite des Associations Europeennes du 
Commerce de Detail also stated that they were against the draft 
directive and that they supported CCD's opinion. Several distance 
selling firms also conveyed their commentaries on the draft 
directive, criticising several provisions of the draft. 
The British "Mail Order Protection Scheme", which is an 
organisation set up by the advertising profession in Britain for 
the purpose of safeguarding advance payments, "totally supports 
the principle of this Directive". 
In a very detailed opinion (19 pages) unanimously adopted at its 
plenary meeting on October 1991, the Consumers' Consultative 
Council gave full support to the initiative, even though it thought 
it inadequate in certain respects (lotteries and other promotional 
techniques were not covered). The opinion particularly emphasised 
the practical problems encountered by consumers in the conclusion 
and execution of contracts negotiated at a distance and stressed 
the existence of cross-frontier fraud. 
It welcomed the broad approach of the proposal, which it described 
as "the only answer for a sector which is constantly changing". It 
supported the principle of rules applicable to all contracts 
negotiated at a distance, together with some specific rules 
applicable to certain types of contract. Finally, the opinion 
states that 
"Experience has shown repeatedly that the adoption of non-
compelling measures, such as recommendations, does not afford 
consumers any guarantee of compliance with the consumer 
protection principles they contain. Any self-regulatory 
initiative can only take place in the context of pre-existing 
regulations and it is precisely this regulatory framework that 
should be provided by the Directive". 
The opinion of the CCC is nevertheless critical of the guarantee 
fund. The prohibition or restriction of payments in advance 
appears to it to be a formula which is more protective of 
consumers. 
The experts from the Member States consulted at the end of August 
all favoured the idea of a Commission initiative in this field, but 
substantial differences of view emerged, since some States thought 
the Commission's text did not afford sufficient protection to 
consumers, while others thought virtually everything could be 
regulated by codes of good practice. 
- 15 -
IV COMMENTARY ARTICLE BY ARTICLE (Directive and Recommendation) 
The aims of these instruments (legal safeguards, financial 
safeguards and right of choice) were discussed in section II. 
A general definition of the concept of a "contract negotiated at a 
distance" is given in the section on the position of the consumer 
in this type of transaction (Ic). In view of the range of problems 
arising, it would have been possible to envisage enacting a 
specific instrument for each means of communication (one instrument 
for television sales, one for Minitel-type home computers etc.) or 
Instruments for the various types of product or service. 
On further consideration, this was seen to be a fragmented 
approach: it is much simpler to lay down general rules for all 
forms of distance selling, even if adjustments are required for 
certain specific cases. 
The Directive is therefore structured as follows: 
Object and definitions (3 articles) 
Rules governing solicitation (4 articles) 
These are general rules applying to all types of solicitation 
of custom irrespective of the means of communication used. 
Rules governing contracts (4 articles) 
Litigation and contract law (3 articles) 
Final provisions (2 articles) 
Standard clauses common to all directives 
Since this text is directly linked with the operation of the 
completed internal market (the internal market in distance 
selling), the legal basis chosen is Article 100a. 
This section of the memorandum is a simple presentation of each 
article in turn. 
- 16 -
Article 1; Oblect 
This article briefly indicates the scope of the instrument. The 
various terms used are defined in Article 2. Preparatory acts are all 
the commercial techniques used to convey the solicitation of custom to 
the consumer. This does not include games and lotteries, although they 
are frequently used in distance selling, since they are not specific to 
this form of sale and will probably be regulated separately. 
Nonetheless, the Recommendation encourages the trade to develop its own 
rules in this field. 
Article 2: Definitions 
- A contract negotiated at a distance has three distinctive features, 
the third being a logical consequence of the first two: 
solicitation of custom by a means of communication at a 
distance; 
a response by the consumer using a means of communication at a 
distance; 
the fact that the trader and the consumer are not physically in 
each other's presence. 
If a consumer receives a catalogue but goes to the supplier's 
premises in order to form a contract, the contract is not concluded 
"at a distance". 
When the consumer signs a long-term contract which is performed in 
stages, such as subscription to a book club, only the initial 
contract is covered and not the operations involved in performing 
it. 
The definitions of the "consumer" and "supplier" are the same as in 
the directive on contracts negotiated away from business premises 
(door-to-door selling). These definitions have been validated by 
various Judgements of the Court of Justice, the most recent being 
the Judgement in the Di Pinto case on 14 March 1991. 
- A list of the means of communication at a distance which may be 
used is attached as Annex 1, since a reader who has only the 
document published in the Official Journal must be able to find out 
quickly what is to be understood by a means of communication. 
"Classified advertising" is not included in this list since as a 
general rule it concerns only relations between consumers. 
The concept of an "operator" covers television channels, 
newspapers, postal or telephone services. 
- 17 -
The "solicitation" is made by the supplier. This term has been 
chosen because of the differences in the meaning of the term 
"offer" (invitation to treat) in national law. 
The solicitation is one element of an organised selling process. 
With the information provided by the trader, the consumer must be 
able to order the product or the service at a distance. For 
example, a communication designed to set up a meeting or direct a 
consumer to a shop is not a solicitation within the meaning of this 
text. For a contract negotiated at a distance to arise, the 
response from the consumer (the order) must constitute a 
contractual arrangement. The range of advertising techniques used 
by small and medium sized enterprises to make themselves known to 
their consumers are not therefore solicitations within the meaning 
of this text. 
Article 3: Exemptions 
As explained in the economic analysis section, the concept of "distance 
selling" covers sales away from business premises. It is therefore 
necessary to exclude automatic vending machines located in business 
premises. The most common example is that of ticket machines in 
stations or airports. All vending machines which immediately dispense 
the product to consumers also give rise to a different set of problems. 
It has been considered necessary to exclude certain products or 
services from the scope of this Directive although they may be marketed 
by distance selling. As a general rule, orders for made-to-measure 
products represent a considered decision by the consumer. 
Services involving a reservation, i.e. a fixed date of performance, are 
a special case since the trader must make arrangements for execution on 
the specified date (air tickets, hotel rooms, etc.). A list is 
attached as Annex 2 to the Directive. 
The directive concerning door-to-door sales provides for a derogation 
for contracts for "foodstuffs or drinks or other goods of current 
household consumption" (Article 3.2.b). This derogation is repeated 
here, and is particularly aimed towards home supplies made by small 
traders. It is extended to services of current consumption. The idea 
of this exception is to not introduce a supplementary constraint on the 
suppliers of services who are not obliged by their national 
legislation to convey to the consumer a written document containing all 
the indications provided for by Article 10: house maintenance 
(repairs), personal services (medical services, ...). This exception 
only of course concerns cases where there is a contract : simply making 
an appointment with a hairdresser or a doctor is not a contract 
negociated at a distance in the sense of this text. 
- 18 -
Article 4: Restrictions on the use of certain means of communication at 
a distance 
As stated in recital 8 and in this Article, soliciting of custom must 
be carried out with due regard for the privacy of the consumer. 
This constraint may take two different forms: prior consent or refusal. 
Prior consent means that the consumer has given his agreement to the 
supplier in advance, either directly or using another means of 
communicat ion. 
A major retail outlet may wish to bring its special offers to the 
attention of its regular customers at intervals using an automatic 
calling machine. In such cases, on some occasion when the customer 
makes a purchase, the supplier will ask him to fill out a form with his 
telephone number indicating that he agrees to receive this sort of 
telephone call. If a customer should complain, the trader will have no 
difficulty in proving that the consumer had given his agreement. 
Refusal means that it is possible for the consumer to indicate that he 
no longer wishes to receive certain types of solicitation. Such 
arrangements exist for mail: the "Mail Preference Service" in the 
United Kingdom or "Stop Pubiicite" in France. The consumer conveys his 
wishes to these bodies. Firms which send material by post consult 
these lists in order to delete the names of such consumers from their 
own lists. In March 1991, the representatives of five such national 
bodies signed an agreement with a view to placing the various systems 
on a Community-wide basis. The choice between "prior consent" and a 
"statement of refusal" will depend on the degree of nuisance or 
intrusion suffered by the consumer. This question of course arises only 
with regard to solicitations of custom on an individual basis : a 
consumer can always turn off his radio, change the television channel 
or not buy a newspaper. 
Since systems for refusal already exist and are managed by the trades 
concerned, such an option is feasible. 
Article 5: Presentation 
The first two paragraphs of this Article are modeled on part of Article 
2 of the Direct Marketing Code of the International Chamber of 
Commerce, adopted on 1 October 1991. This article, under the heading 
"Integrity and honesty" states that no direct marketing offer should be 
represented to the consumer as being a form of market research. 
The requirement to indicate that the consumer must pay does not mean 
that the exact price must be stated. It is not possible to know the 
cost of a telephone call in advance. On the other hand, it is possible 
for the consumer to be told whether a call Is free, local, long­
distance, international or at an added value. 
- 19 -
Article 6: Content of solicitations 
This Article lists the details which a consumer must be given in order 
to make a fully informed decision to place an order. Certain media 
(television, computer, radio) do not enable the consumer to keep a 
record of the information. This Article is to be read in conjunction 
with Article 10, concerning information on the content of the contract. 
Article 7: 
This Article provides for specific rules on : "direct offers to the 
public for the sale, purchase or rental of products or for the 
provision of services in return for payment" (Directive 89/552/CEE of 
3rd October 1989, Article 1.6). 
This directive of 1989 provides for a general rule on the duration of 
broadcasts for sales by television (Article 18). On the other hand, it 
does not take a position on the nature of this type of broadcast 
advertising or television broadcast. By reason of this fact, all of 
the rules concerning advertising provided for by the text do not apply 
to solicitations for television sales. This directive contains 2 
articles relating to the protection of minors : Article 16 in the case 
of advertising. Article 22 in the case of broadcasts. 
Article 7 chooses Article 22 in order to respect the choice of the 
Community legislator when it decided in 1989 not to assimilate 
advertising and sales by television. 
Article 8; Inertia selIinq 
Virtually all the Member States have specific provisions forbidding 
"inertia selling" "sending of unsolicited goods and services" etc. 
(See the analysis of the situation in the various Member States.) 
Nonetheless, such practices exist and it is therefore necessary to make 
the national rules more precise to ensure that the consumer can keep 
the product received. 
In many Member States, techniques have appeared for selling products or 
services to the consumer on the basis of a failure to reply: 
"If we receive no reply from you, we shall assume that you agree to 
our proposal". 
In order to ensure that consent is not extorted in this way, the 
Article states that failure by the consumer to reply shall not 
constitute consent. 
Article 9: Performance 
This Article Is intended to provide a general rule for delivery periods 
when these are not stipulated. The thirty-day period is customary 
practice in Europe. In the United States, this provision is included 
in the federal law on mail-order trading. The laws of the Member 
States determine the legal consequences of failure to comply with this 
rule. 
- 20 
Article 10: Information on the content of the contract 
Until the time of performance, the transaction may have taken place 
without any written document. 
it is therefore important that the consumer should be properly Informed 
of his rights at the time of performance, and this is the purpose of 
this Article. 
This information must be provided in writing. Unlike many other 
Community instruments, this text stipulates that the language used 
shall not be that of the country in which the consumer is resident but 
that in which his custom was solicited. 
A French consumer replying to an advertisement in an English-language 
newspaper or a German-language teleshopping programme cannot expect to 
receive all the information in the language of the country in which he 
is resident. If the medium is disseminated outside its own language 
area and the consumer decides to place an order, the language rule must 
not be an obstacle to this type of cross-frontier contract. 
Certain services can be supplied at a distance (information, banking 
data, ...). The consumer does not receive any written document. The 
invoicing is done by an intermediary of the telecommunication operator. 
Article 9(2) deals with this particular type of service. 
Article 11: Right of withdrawal 
In all Member States, there is a period for withdrawal from contracts 
negotiated at a distance, sometimes referred to as a "money back 
guarantee". In seven Member States, this period is required by law 
(see Table No 3 of Annex 1), while in the other five it is left to the 
discretion of the traders. This practice is widespread in conventional 
mail-order selling, but not always in the other sectors using the new 
technologies (television, telephone), and the practice must therefore 
be made the general rule. Provision must, of course, be made for the 
cases in which this measure cannot apply, and this is done in section 
4. 
Article 12: Payment by telephone 
A method of payment which is increasingly used in transactions 
concluded at a distance is payment by quoting the number of a payment 
or credit card, e.g. over the telephone. (This could be referred to as 
"cardless payment by card".) This practice Is very convenient for the 
consumer and should not therefore be prevented. It is also the most 
promising method of payment at a distance. 
It is, however, necessary for clear rules to be laid down for 
liabilities in the event of litigation. Since this is not an 
electronic method of payment, it is not covered by the Recommendation 
of November 1988 on electronic payment systems. 
The text therefore takes over a provision which is already to be found 
in the interbank rules of the major card payment systems: the risk of 
fraud is not borne by the consumer. 
- 21 -
Article 13: Judicial or administrative redress 
This Article is based on the Directive on misleading advertising 
(84/450/EEC). However, one point has been added, for the reasons 
indicated in recital 15: the possibility of cross-frontier legal action 
by bodies competent to take action against unfair competition or for 
the protection of consumers. This is the only way of putting an end to 
malpractice by firms which engage in no activity in their country of 
origin but operate by making use of the freedom to provide services. 
While the Brussels Convention (1968) recognises that any consumer who 
is the victim of malpractice may take action against a firm before the 
court at the place where the firm has its registered office, this does 
not happen, since the consumer does not have the necessary financial 
resources or expertise given the small amount of money at issue. The 
right to bring an action must therefore also be given to the 
representatives of consumers' interests and the interests of 
competitors. These are the only bodies which can act to put an end to 
malpractice on behalf of the small consumer or small competitor. 
Nevertheless, certain Member States do not allow this possibility to 
their associations. That is why this possibility is only available 
when the State from where the litigation originates (location of the 
firm) allows this procedure. 
Article 14: Contract law 
This Article is identical with Article 6 of the Directive on contracts 
negotiated away from business premises (85/577/EEC). 
Article 1$: Community rules 
The purpose of this Article is to stipulate that where there is a 
specific instrument which gives more extensive rights to the consumer, 
that text will apply. For life insurance, Community legislation 
provides for a cooling-off period of 30 days. This Article indicates 
that it is the 30-day period provided for in the specific text, and not 
the seven-day period prescribed in the general text, that applies. 
On the other hand, the instruments regulating non-life insurance do not 
provide for a cooling-off period. In principle, the general rule 
applies and the consumer is entitled to the cooling-off period 
mentioned in Article 10. Under paragraph 4 of that Article, however, 
there is no cool ing-off period if the contract has to be performed 
immediately. 
Articles 16 and 17 
The usual provisions on transposition. 
- 22 -
The Recommendation consists of four sections and an annex 
The first section contains a proposal that the minimum set of basic 
rules represented by the Directive should be supplemented by codes of 
practice. The Directive lays down general rules applying to all 
products and services, and for all means of communication. These 
general rules need to be adapted, in particular to the various means of 
communication. This can be done by self-regulation in the form of codes 
of practice. The text stipulates that codes should be drawn up by 
"trade organisations". This will ensure a high degree of uniformity 
and wide application of the codes. 
The second section sets out the subjects which the Commission thinks 
should be covered by such codes. 
In the third section, the trade associations are asked to ensure proper 
compliance with these codes by all their members, to reinforce the 
credibility of this type of code. 
In the fourth section, the trade associations are asked to inform the 
Commission of the existence and content of such codes. This does not 
imply that the Commission in any way endorses the various codes, but 
provides the Commission with information on how its Recommendation is 
being implemented. The Commission will afterward evaluate the impact of 
this step and will present if necessary new initiatives. 
- 23 -
ANNEX 1 
TABLE 1 
PREVALENCE OF TECHNOLOGIES 
1 1 1 I 
| COUNTRY | NUMBER OF | I OF HOUSEHOLDS WITH | 
| | HOUSEHOLDS IN | , 1 1 1 
| | IN MILLIONS | TELEVISION | VIDEO | TELETEXT j CABLE | 
|| || CASSETTE j INTERACTIVE j j 
|| || READER j OR NOT j j 
j AUSTRIA j 2.8 j 99 j 42 j 15 j 20 j 
j BELGIUM j 3.9 j 98 | 46 j 17 j 86 j 
j DENMARK j 2.3 j 96 j 43 j 30 | 36 j 
| FINLAND j 1.9 j 95 j 52 j 26 j 35 j 
j FRANCE j 21.1 j 96 j 47 | 19 | 2 j 
j GERMANY j 32.8 | 96 | 47 j 14 j 31 j 
j GREECE j 3.2 j 94 j 38 j j - j 
j IRELAND j 1.03 j 95 j 53 j 6 j 35 j 
j ITALY | 19.1 j 97 j 25 j 15 | - j 
j LUXEMBOURG j 0.14 j 98 j 59 | 9 | 71 j 
j NETHERLANDS j 5.8 j 97 j 49 j 32 j 81 j 
j NORWAY | 1.9 j 95 j 57 j 37 j 26 | 
j PORTUGAL j 3.1 j 94 j 31 j I - I 
| SPAIN j 11.0 j 98 j 45 j 5 | - j 
j SWEDEN | 3.9 j 97 j 68 j 39 j 38 | 
| SWITZERLAND j 2.5 | 94 j 51 j 25 j 65 j 
| U.K. j 22.1 j 97 j 67 j 32 j 2 j 
(-: none or less than 0.5%). 
Source: CIT Research 199) (1991 figures) 
reproduced frou SPECTRUM, revle* of the "Independant Television CowHsslon". Autuan 1991 
- 24 -
ANNEX 1 
TABLE 2 
SUBSIDIARIES OF THE FOUR LARGEST EUROPEAN GROUPS 
1 1 
| Country | 
| Austria 
| Belgium 
| France 
| Germany 
j Italy 
| Portugal 
| Spain 
j United 
| Kingdom 1 
N° 1 In Europe | 
OTTO VERSAND (FRG) 
Karsten n° 3 
Ohler n° 6 
3 Pagen 
Moden 
Muller n° 1 
3 Suisse n° 1 
Unlgro n° 4 
3 Suisse n° 2 
Blanche Porte n° 4 
Becquet n° 10 
VItrine Magique n° 15 
Otto n° 2 
Schwab n° 6 
Heine n° 9 
3 Pagen n° 15 
CIA n° 5 
Uno Nova 
Helvetica n° 3 
Nenta 
Catalogo n° 1 
| Rainbow Home 
| Shopping i 
N° 2 In Europe 
LA REDOUTE (FR) 
Redoute Benelux n° 5 
La Redoute n° 1 
Duscon n° 7 
Malson de Valerie n° 8 
Vert Baudet n° 12 
Cyrlllus n° 25 
| La Redoute n° 1 
j Empire Stores n° 2 I 
N* 3 In Europe | 
QUELLE (FRG) 
Quelle n° 2 
Quelle n° 3 
Quelle n° 5 
Quelle n° 1 
SchbpftIn n° 7 
Peter Holm n° 2 l 
N° 4 In Europe | 
GUS (GB) j 
Gus n° 1 | 
| Gus n° 1 | 
J_ 
Source: Libre Service ActualIte, 7 June 1990. 
The table is to be read as follows: 
Rows - the various countries with the rankings; 
Columns - subsidiaries of the four largest groups. 
Example: Ohler N° 6 on the Austrian market Is a subsidiary of OTTO-VERSAND. 
ANNEX 1 
TABLE 3 
COOLING-OFF PERIOD 
Belgium 
Denmark 
France 
Germany 
Greece 
re I and 
Italy 
Luxembourg 
Netherlands 
Portuga 
Spain 
United Kingdom NATURE 
Mandatory 
M 
M 
M 
M Voluntary LENGTH 
7 working 
days 
7 days 
7 days 
14 days 
7 working 
days 
15 days 
8 days 
7 working 
days 
14 days BASIS 
Law of 14.7.1991 (Moniteur beige, 29.8.1991) 
Art. 79 9 2 
Law n* 886, 23.12.1987 - Art. 11 9 2 
Law 88.21, 6.1.1988 - Art. 1 
Law 1961/91, 3.9.1991 - Art. 31 (7 days from 
confirmation of order or delivery) 
Law of 25.8.1983 - Art. 7 
Decree-Law n' 272/87, 3.7.1987 - Art. 11 
specific provisions in certain regions to 
- 26 -
ANNEX 2 
THE SITUATION IN THE MEMBER STATES 
Belgium 
A "Law on trade practices and on consumer information and protection" 
was published in the Moniteur Beige of 29 August 1991. The text 
consists of 124 Articles and will enter into force on 29 Feburary 1992. 
Articles 77 to 83 form Section 9 under the heading "Distance selling". 
Article 77 starts by defining distance selling : 
"...Distance selling is selling which occurs without the seller and 
the consumer being physically in each other's presence and 
following an offer of sale made as part of a sales system employing 
a means of communication at a distance". 
This definition is very general, covering both products and services 
and all means of communication at a distance. Nonetheless, the rules 
laid down In Articles 78 to 82 relate only to sales of products. 
Provision is made for a Royal Decree on services : 
"Article 83 (1) - The king may : 
...3) Determine the services or categories of service to be subject 
to this sect ion". 
The extent of which the provisions are to apply to services is thus 
left to the discretion of the government. Since the law is very recent, 
no implementing decree has yet been enacted in this area. 
Article 78 institutes a cooling-off period of seven working days from 
the time of delivery and stipulates that the contract is not complete 
until this period has expired. Seven days must therefore elapse after 
delivery before the contract is concluded. This is perhaps the most 
distinctive feature of Belgian law, since it gives the consumer a great 
deal of latitude: as long as the contract has not been concluded, the 
consumer can cancel the purchase at any time. 
- 27 -
Similarly, since the contract has not been concluded, no deposit or 
payment of any kind may be demanded of the consumer. This point was 
discussed at length during the preparatory work, since the initial text 
prohibited the accepting of advance payments. This prohibition has been 
relaxed to the extent that payments may be collected by the postman on 
delivery. Under Belgian law, the trader thus cannot require advance 
payment or even the payment of a deposit. The consumer is not obliged 
to pay until seven days after receipt of the goods. 
Article 79 (1) deals with the content of the "distance selling offer". 
Paragraph 2 lists the information to be contained in the document 
supplied to the consumer at the time of delivery. There are special 
provisions for the withdrawal clause, which must be printed: 
"In bold characters in a box separate from the text on the front of 
the first page". 
If this clause is not complied with, the case is regarded as one in 
which the goods or services are unsolicited, i.e. a case of "inertia 
selling". The consumer is "not obliged to pay for the product supplied, 
nor to return it". 
Article 80 states that the burden of proof in disputes is to be borne 
by the seller, and such proof may not consist of presumptive evidence. 
Article 81 seeks to regulate a number of practical problems : 
If the seller cannot supply the product within the agreed period he 
must inform the consumer in writing before the period has expired. 
Products are always sent at the seller's risk. 
If the consumer withdraws from the contract, no costs or 
compensation may be demanded except for any costs of collection or 
return. However, In certain cases (late delivery, lack of 
information, product not in conformity with the description), such 
costs may have to be borne by the seller. 
- 28 -
Article 76 of the same law on trade practices deals with "inertia 
selling". The wording of the text is as follows : 
Sect ion 8 
Inertia selIing 
Article 76 
"It is forbidden to supply any product to a person without prior 
request and to ask him to purchase this product against payment of 
its price or alternatively to return it to the sender, even free of 
charge. 
"It is also forbidden to render any service to a person without 
prior request and to ask him to accept this service against payment 
of its price. 
"The Minister may grant exemptions from these prohibitions for 
offers made for charitable purposes. The number of the 
authorisation granted and a statement to the effect that "The 
recipient is under no obligation either to pay for the goods or to 
return them" must be legibly, conspicuously and unambiguously 
marked on the documents relating to the offer. 
"In no event shall the addressee be obliged to pay for the service 
rendered or the product sent nor to return the product sent, even 
if it has been stated that tacit acceptance of the service or 
purchase will be assumed." 
There are no rules for canvassing by telephone, fax or other means. It 
should merely be mentioned that the law on doorstep canvassing applies 
even if the caller has obtained the consumer's agreement in advance by 
an "offer to call made by telephone". 
The question of television selling has been investigated and the 
Conseil national de la Consommation has rendered an opinion. Under 
Article 83 of the section on distance selling in the trade practices 
law, the public authorities can, if they so wish, issue a decree 
regulating this type of sale. 
- 29 -
Denmark 
The regulations relating to distance selling in Denmark are laid down 
in the amended Consumer Contract Act, which Is published as the 
Lovbekendtgtfrelse n' 886 dated 23 December 1987, and which deals with 
the regulation of doorstep selling, distance selling and the continuous 
provision of services, and Bekendtgtfrelse n* 887, concerning the 
provision of information on the right to cancel contracts concluded 
away from business premises. Neither of these instruments is available 
in an authorised translation. The translations made for the purposes 
of this review thus have no official standing. 
Fundamental principle of the Danish Act 
The Danish legislation is based on the fundamental principle that a 
trader may not, without prior request, contact a consumer in person or 
by telephone at his residence, place of work, or other place not 
accessible to the general public, for the purpose of obtaining, 
immediately or at a later date, an offer or acceptance with a view to 
the conclusion of a contract, see § 2, subsection 1. 
The effect of breaching the principle is that the consumer is not bound 
by the contract, §3. 
Effective protection against receiving unsolicited goods is provided by 
§ 4, which stipulates that where a supplier sends or delivers a product 
to a consumer without his prior request and where this is not due to an 
error, the consumer may keep the product free of charge. 
There are some exceptions in subsection 2 to the principle laid down in 
§ 2, subsection 1. There is no prohibition on the making of unsolicited 
offers in person or by telephone regarding the ordering of books, 
subscriptions to newspapers, magazines and periodicals and the taking 
out of an insurance policy or subscriptions to rescue or ambulance 
services. It is also permitted to peddle certain natural products. 
The Consumer Contract Act was amended for the purpose of implementing 
Council Directive 85/577/EEC, and Chapter 4 of the Act, which related 
to the right to cancel mail-order contracts, was also amended. This 
amendment was proposed by certain opposition parties. The amendment 
which was included under this Chapter of the Act refers to offers made 
and contracts concluded by means of electronic media devices. The 
regulations were also expanded to cover orders made as a result of 
lawful contacts by telephone. With this background in mind, the term 
"mail-order selling" was changed to "distance selling". In the well 
respected Danish Law Commentary : Karnovs Lovsamling, 12th edition, 
p 3754, note n" 102, relating to the term "distance selling" states 
that "electronic media data" should be taken to include tele-tv, 
teledata and cable services etc. 
- 30 -
The right of cancellation in relation to distance selling contracts 
Chapter 4, § 10, subsection 1, sentence 1, of the Consumer Contract Act 
regulates a consumer's right to renounce a contract for goods ordered 
on the basis of a catalogue or an advertisement, in circumstances where 
the supplier has offered to deliver the goods which were ordered by the 
consumer by telephone, letter or other method in writing. 
The provisions relating to distance selling also apply if the supplier 
has, without previous request, contacted the consumer by telephone and 
the consumer has, during or as a result of this call, ordered goods, or 
taken out a subscription or insurance policy, see § 10, subsection 1, 
sentence 2. 
The scope of the regulations is restricted to the above situations. 
Subsection 2 provides that the consumer has the right to renounce the 
contract in accordance with the specific regulations in §§ 11-13. 
Exceptions to the right to cancel 
According to §10, subsection 3, the right to cancel does not apply to 
the purchase of 
1. goods which are manufactured or tailored to the individual needs of 
the purchaser, and 
2. foodstuffs or other goods for consumption in the household. 
Execution of the right to cancel 
In § 11, first subsection, it is stated when, how and against whom the 
purchaser of goods may invoke this right to cancel the contract. The 
general rule is that the purchaser may within one week of receipt of 
the goods, or the first batch of the goods, cancel the contract by 
returning the goods to the supplier. § 11, subsection 1, also provides 
for some exceptions to this general rule, see also § 17. 
Subsection 2 lays down certain conditions relating to the condition and 
quantity of the goods at the time they are returned to the supplier, 
which must be complied with by the purchaser in order for him to 
maintain his right of cancellation. Subsection 3 relates to 
circumstances where the seller is obliged to return payment, if any, to 
the purchaser once the latter has cancelled the contract. Subsection 4 
states that costs relating to the return of the goods lie with the 
purchaser. 
- 31 -
§ 12 states when, how and to whom the purchaser must notify a 
cancellation of a contract in circumstances where the supplier has 
accepted responsibility for collecting the goods. It is provided that 
special regulations (some of them stemming from Chapter 3 of the Act 
relating to contracts concluded away from a trader's business premises) 
apply to these situations. 
§ 12(a) stipulates when the consumer is entitled to cancel in a 
situation where he takes out a subscription or an insurance policy, see 
§ 10, subsection 1, sentence 2. The general rule is that the consumer 
may, within one week from receipt of the conditions of insurance, the 
subscription contract or the first delivery, cancel the contract, see 
also § 17. It is also provided that special regulations (stemming from 
Chapter 3 of the Act relating to contracts concluded away from a 
trader's business Dremises) apply to these situations. 
Obligation of the trader to provide information regarding the r jcjh t Jto 
cance I 
§ 13, first subsection, provides that the supplier must, at the time of 
the delivery of the goods to the purchaser, give clear information in 
writing on the right to cancel the contract. Subsection 2 provides in 
relation to the taking out of a subscription or an insurance policy 
that within three days at the latest after receiving an order by 
telephone, the supplier must send written confirmation of the contract 
to the purchaser which must include clear information on the right of 
canceI I at ion. 
Subsection 3 provides that if the abovementioned items of information 
are not given in accordance with subsections 1 and 2 the consumer is 
not bound by the contract. Subsection 4 empowers the Minister of 
Justice to make regulations relating to the form and content of the 
information. This power has been exercised by the issuing of the 
aforementioned BekendtgdreIse n" 887, which lays down the technical 
aspects of when and how the information relating to the cancellation of 
the contract should be given by the supplier to the consumer. § 1 , §§ 
4-9 and Annexes 3-6 (prescribing the texts to be used by the supplier 
in different types of distance selling contracts) are particularly 
relevant in this regard. 
§ 16 of the Act states that the foregoing rules cannot be deviated from 
in a manner which would be detrimental to the consumer's interests. 
§ 9 of the BekendtgcJre Ise should also be referred to in this regard. 
(Note : this paragraph contains a typographical error resulting in the 
omission of § 6 of the BekendtgdreIse as the text mentions only § 1-5.) 
- 32 -
Federal Republic of Germany 
Distance selling does not yet form a legal category under German law 
and the term thus has no particular meaning. 
In practice four areas are of major concern to consumers: 
The mail-order business 
Unsolicited sending of goods and advertising 
BiIdschirmtext (BTX) and 
Teleshopping 
The mail-order business is well established. It is built into the 
civil law system and benefits from consumer protection rules on the 
clauses of consumer credit contracts. A voluntary right to return the 
products within 14 days compensates for the lack of a mandatory 
cooling-off period. 
Advertising law: 
UnsoIi c i ted send i ng of goods and advertising is an endless source of 
consumer complaints and litigation. Here questions on the 
applicability of the German advertising law arise. Criminal law may 
come into play in cases where the firms operate outside Germany, 
although usually in vain. 
No special rules in this area are laid down in German law, so solutions 
have to be found in civil law rules and rules on unfair marketing 
practices. The sending of unsolicited goods is unlawful in principle. 
There is an exception only if two prerequisites are fulfilled. The 
first is that the addressee is informed that he has no duty to send the 
goods back, and secondly, that the goods only have an insignificant 
value. 
With regard to direct mail advertising, the Jurisprudence is based on 
the general clauses of the act prohibiting unfair competition (UWG). 
By virtue of this, the courts are in a position to deal with social 
changes without the intervention of the legislator. 
- 33 -
There are two general clauses enacted in the UWG: 
s.1: the "major" general clause, which prohibits unfair 
pract ices and, 
s.3: the "minor" general clauses, prohibiting misleading 
advert ising. 
However, the UWG can only be invoked by the firms and organisations 
concerned. In 1965, the scope was extended to consumer organisations 
and businesses which have the right to seek injunctions. 
As mentioned above, the application of the UWG means the application of 
the case law based on the general clauses of the UWG. 
In one case concerning direct mail advertising, the Bundesgerichtshof 
(Federal High Court) made a decision in which it took a very critical 
approach with regard to mailbox advertising. Mailbox advertising is 
unlawful when a person fixes a label to his letterbox which reads that 
he wishes to receive no advertisements or leaflets, and that those 
failing to respect his wishes will be prosecuted. 
The BGH gave the claimant in this case the right to seek an injunction 
against a firm whose distributors had engaged in direct mailbox 
advertising despite a label on the mailbox to the contrary. Whilst it 
was, however, considered that such case law would not be applicable to 
the distribution of mass advertising by the postal service, the 
situation has also changed in this respect since 1 July 1991. The new 
"General conditions of supply of service" of Deutsche Bundespost, 
adopted under an act amending the Poststrukturgesetz, provide that the 
postal service will henceforth respect "opting-out labels" on 
maiI boxes. 
According to the Federal High Court (BGH) in the Telefonwerbung cases 
l-lll (Telefonwerbung I, BGH 19/6/1970 NJW 1970, 1738/Telefonwerbung 
II, BGH 8/6/1989 NJW 19899, 2820/Telefonwerbung III, 8/4/1989 NJW 1990, 
359) it is quite clear that advertising by telephone is unlawful, 
because it is considered to be unfair competition if it is made without 
the prior consent of the recipient of the telephone call. 
The decision was based on the general right to privacy. The stricter 
approach taken for telephone advertising rather than for mailbox 
advertising is Justified by the fact that printed matter can be thrown 
away without being read, whereas a telephone advertisement must at 
least be partially heard, before the person called is able to decide 
whether he wishes to continue the telephone call or not. This is the 
basis of the decisions: the freedom to make one's own decision and not 
the extent to which one takes note of a particular advertisement. 
- 34 -
BiIdschirmtext (BTX): 
The most important new technique of distance selling in Germany is BTX, 
because it permits direct communication between the contracting parties 
in contrast with teleshopping, where the consumer must use the 
telephone or write a letter. 
In the field of BTX, a new piece of legislation has been enacted, the 
Staatsvertrag fur BiIdschirmtext (18 March 1983, revised version 1991). 
With regard to the applicability of the Staatsvertrag a distinction 
must be made between mass communication and individual communication. 
Mass communication is mainly subject to the Staatsvertrag. Individual 
communication is subject to the rules of German civil law. So long as 
an individual supplier and an individual consumer have not entered into 
contractual negotiations, all the rules of the BTX-Staatsvertrag apply, 
which means that the supplier is obliged to indicate his name and 
address on the screen, to show whether he is merely supplying 
information or advertising, and to clearly state at which point in time 
the consumer is entering into individual communication for which he 
must pay (Article 5). 
The Staatsvertrag obliges suppliers from outside Germany to indicate in 
their title the name and the address of a BTX-agent. This BTX-agent 
must however be domiciled in the Federal Republic of Germany. The 
Staatsvertrag therefore puts the BTX-agent on an equal footing with the 
supplier. This is an approach which could place the BTX-agent in a 
difficult situation if he is held responsible for a service which the 
supplier has provided from abroad. 
This obligation to be domiciled in the Federal Republic does however 
create difficulties under EC law, because under EC law, a supplier is 
given a right to choose whether he wants to make use of his right of 
establishment and settle in another Member State, or whether he relies 
on his freedom to provide services, and supplies his service from 
outside the Federal Republic (Article 59 EEC Treaty). 
The German Staatsvertrag regulates the conditions under which a 
supplier of services has access to television facilities. The 
Staatsvertrag is of importance for distance selling because it lays 
down rules on the admissibility of advertising which must be observed 
by the suppliers. The principle of separation between broadcasting and 
advertising is laid down in section 8 of the Staatsvertrag. It is also 
part of the federal law on unfair competition (case law based on 
section 1 UWG). 
- 35 -
In one case concerning BTX, it arose that a provision in the 
Staatsvertrag, under which advertising had to be labelled "W" did not 
apply to the electronic mailbox. 
A user had to actually see the advertisement on the screen, before he 
was able to decide whether he wished to take note of i t or not. This 
situation has since changed. An advertisement can now be deleted, 
without first being seen on the screen. Under these circumstances it 
is doubtful whether advertising in a BTX system still constitutes 
unfair competition. To use the "delete" button of a computer is the 
the technical equivalent of throwing away paper. 
Therefore in principle, the filling of an electronic mailbox with 
advertising may be lawful where the user is able to block his 
electronic mailbox from advertising (the equivalent of a label on a 
maiI box). 
Teleshopp ing 
Similar problems with regard to access to television facilities for BTX 
arose when teleshopping was introduced as a method of distance selling. 
A decision had to be made as to whether the television set could be and 
should be used as a marketing instrument. 
Teleshopping is not yet subject to new legislation. It is regulated by 
the existing telecommunications law, thereby widening the meaning of 
the term "broadcasting" in the context of Article 5 of the German Basic 
Law. 
Article 5 covers the information element of broadcasting but does not 
cover teleshopping. Similarly, information reports have the benefit of 
constitutional protection whereas advertising does not. In practice, 
the constitution has been interpreted in a manner which adapts Article 
5 to the needs of the broadcasting stations. 
With regard to limits on the freedom to broadcast, the question arises 
whether teleshopping can be regarded as a permitted form of 
broadcasting. Advertising and information broadcasting must be kept 
separate. 
Teleshopping should therefore bear a label which makes it easy to 
distinguish it from other broadcasting services. 
- 36 -
The LSnder have not pursued this path. They treat teleshopping as a 
permitted programme form and place It within the concept of 
advertising. The limits on the extent of permitted shopping are taken 
from the relevant Lander legislation, the Federal legislation 
(section 1 UWG), the Staatsvertrag and the EEC Directive. 
The following rules apply: "Advertising must be kept separate from the 
rest of the programme and must be identified by way of an acoustical 
signal and an optic label. Advertising must not exert influence on the 
rest of the programme, only block advertising is allowed and it may 
constitute no more than 20% of the daily broadcasting time". 
Exceptions to the rules are provided for where particular broadcasting 
services are sponsored. In practice, however, labelling has not proved 
to be very efficient (a solution could be to devote a specific channel 
to teleshopping in order to exclude any overlapping with permitted 
broadcast ing). 
However, as currently practised, teleshopping creates problems because 
it violates the principles of separation by mixing editorial and 
advertising elements. 
Legal aspects of distance selling 
The crucial element to be noted with regard to new communication 
techniques using the television screen as a medium between a seller and 
a purchaser lies in its transformation as a marketing instrument. 
The consumer has to rely on the statements presented to him by the 
supplier to advertise the product. However, the presentation of the 
product is generally interpreted as an "invitatio ad offerendum" i.e. 
an invitation to treat which does not bind the supplier. 
With regard to the conclusion of the contract, different problems arise 
where both parties are not present at the same time. The moment of 
receipt is important because from that moment the offer becomes 
effective and it also defines the deadline in respect of which the 
consumer may be entitled to withdraw his offer. Therefore, as long as 
the offer has not reached the supplier, the consumer has an opportunity 
to withdraw. 
- 37 -
The Landgerlcht Bielefeld in 1990 insisted that the supplier of 
standard contract terms is under a legal obligation to inform the 
consumer of the costs of the product or service he wishes to order. 
This decision has given rise to the criticism that it was excessive to 
require a supplier to give full information on the costs in his 
standard contract terms. A recent amendment of the Staatsvertrag 
follows the interpretation made by the Landgerlcht. 
A further question of liability arises where a consumer telephones the 
number on the screen and engages in direct telephone contact with the 
broadcasting station which is working on behalf of the supplier. If 
such a person leads the consumer to believe that he is authorised to 
give competent information concerning the product but in fact is not, 
the supplier will be bound to the consumer on the basis of what has 
been negotiated between the consumer and the broadcasting station. 
Another delicate question is whether the broadcasting station can be 
held liable in the case of the supplier being declared bankrupt or 
such I ike. 
German law contains the right to withdraw from doorstep selling 
contracts. There has been some discussion on the applicability of this 
law to the new techniques of communication. An extension of the 
doorstep selling law in this respect was rejected in a parliamentary 
debate, because the law was deemed to regard legal transactions 
concluded by phone as less dangerous for consumers. 
Mail-order firms and the teleshopping industry have conferred on 
consumers a voluntary 14 days' right to withdraw from contracts. 
However, this has been found not to work very well in practice. The 
situation could only be clarified by a statutory obligation, as in 
Austria, where a seven-day cooling-off period is under considation. 
- 38 -
Greece 
The principal form of distance selling currently practised in Greece is 
mail-order by advertisement and direct marketing. No form of 
teleshopping exists in Greece as yet, but a public videotex system will 
shortly commence operating. 
Greece transposed the Community Directive concerning contracts 
negotiated away from business premises into domestic law by Ministerial 
Decision F159 of 16 July 1990, which included some provisions on 
distance selling, and which has now been repealed and replaced by Law 
No 1961/91 dated 2 September 1991. This law is of horizontal effect, 
providing for the general protection of consumers' interests, and 
represents the first legislative attempt to provide such general 
protection in Greece. 
The text of the Ministerial Decision concerning contracts negotiated 
away from business premises and contracts negotiated at a distance has 
been repeated in the new Law of 1S91 in an amended form. Chapter 6 of 
the Law deals with such agreements concludec "outside the trading 
place" specifically in Article 31: 
"in the case that a contract has been concluded from a distance (by 
correspondence, telephone, telegram or in another way) the supplier 
is aiso obliged to compile the documents provided for in Article 29 
and send them together with the contract renunciation form to the 
consumer. The renunciation time-limit provided for in Article 30 
runs from the time the consumer has received the document". 
The documents referred to in Article 29 are as follows: 
a) a copy of the contract, which must contain the full name, trading 
name and address of the supplier (a box number is insufficient); 
the date and place of contracting; a description of the goods; 
delivery and payment terms; the rate of real interest and maximum 
interest (where applicable); the tax registration number of the 
suppIier, and 
b) a specimen contract renunciation form. 
- 39 -
In addition, Article 29 provides that any such contract which fails to 
inform the consumer of his right to renounce a contract is rendered 
invalid. 
The text also provides that the provisions of the Chapter do not apply 
to a contract the price of which does not exceed 12 000 drachmas 
(53 ecus), nor to contracts relating to property, the supply of food or 
other goods for current domestic consumption which are frequently or 
regularly supplied. 
Article 30 reinforces the right to renounce the contract within the 
coollng-off period and provides that such right may be exercised by 
sending notice to the supplier within 10 working days from receipt of 
the contract unless a longer period is provided for. 
It may be observed that the new Law does not make any provision with 
regard to the sending of unsolicited goods, although there had been an 
implicit provision in the previous Ministerial Decision to the effect 
that if the goods were sent to the consumer without previous request, 
the contract would be "declared in favour of the consumer", indicating 
that he need not pay the price. There are also no provisions in the 
law regarding the sending of unsolicited mail and the right of refusal, 
nor for a mail-order bonding scheme. There are no mailing or telephone 
preference services operating in Greece at present. 
Spain 
Since the Constitution was adopted in 1978, the division of legislative 
powers between the State and the Autonomous Regions has given rise to a 
great deal of discussion and case law. 
In the field of consumer protection in respect of distance selling, the 
situation is roughly as follows. 
When a region has enacted legislation, that legislation applies to 
the extent that it is in conformity with the national legal 
provisions. 
When a region has no specific legislation, national legislation 
applies. 
It is therefore necessary to study both the regional and the national 
legislat ion. 
3) 
- 40 -
Spain consists of 17 regions (15 mainland regions plus the Canary and 
Balearic Islands). 
- Six regions have specific legislation for consumer protection, and 
of these four use the expression "distance selling". 
The definitions given in these four laws are of interest: 
Aragon 
Article 31 of the Law of 5 October 1989 regulating commercial activity 
(Law No 9/1989) gives the following definition: 
"Distance selling transactions are those in which the offer is made 
by the seller to the buyer using any means of communication, the 
buyer being asked to place his order at a distance, using the same 
or another means of communication, and in general terms all types 
of sale which do not involve the presence of the buyer and seller." 
Article 32 - Among the provisions for distance selling is the 
requirement that offers must be clear and complete, containing at least 
- information making it possible to identify the firm making the 
offer; 
- a description of the product or service offered; 
the prices and terms of payment; 
the guarantees, time limits for dispatch, and any costs to be borne 
by the consumer. 
Catalonia 
Article 11 of the preliminary draft law regulating domestic trade, 
published in July 1991, is worded as follows: 
"Distance selling means all sorts of commercial retail selling 
accomplished by an order initally conveyed between two persons by 
any means of communication without their being physically in each 
other's presence, or by any means of social communication and 
electronic transmission which indicates how consumers should place 
their orders". 
- 41 -
Article 12 - All distance selling offers must contain the following 
information in a clear and unambiguous form. 
b) The product or service offered must be described in quantitative 
and qualitative terms, as must the mode of use, so that it can be 
easily ident if led. 
c) The total price to be paid must be in conformity with Article 8 of 
this law, the expenditure must be shown separately from the costs 
of carriage, if these are borne by the consumer, and the refund 
arrangements must be indicated. 
d) The cooling-off period within which the consumer may return the 
product and recover the deposit he has paid must not be less than 
seven days. 
Art icle 13 
13.2 - The sale of a product or the rendering of a service which has 
not been previously requested by the consumer or user is prohibited in 
all cIrcumstances. 
GaI icia 
Article 32 of the Law of 20 July 1988 regulating commercial activities 
(Law No 10/88) defines distance selling as follows: 
"Distance selling means all forms of retail selling in which the 
trader offers consumers an opportunity to place orders by mail, 
telephone or any other means of graphic or audiovisual 
communication for products offered for sale in catalogues, 
magazines, periodicals, newspapers or other means of 
commun icat ion." 
Va lencia 
Distance selling is defined by Article 23(1) of the Law of 29 December 
1986 regulating trade and commercial establishments: 
"For the purposes of this Law, distance selling means the system of 
distribution consisting in offering products for sale by mail and 
asking the consumer to order by mail, telephone or another means of 
communIcat ion." 
- 42 -
Section 4 of the same Article states that: 
"Products or samples may not be sent for commercial purposes to the 
home of any person who is not a trader without proof of a request 
by that person. If items are so sent, the recipient shall be under 
no obligation to pay for, keep or return them." 
At national level, there is a business ethics code for distance 
selIing. 
It includes the following provisions: 
Chapter IV: arrangements for performance of orders 
"In order to ensure maximum customer satisfaction with the manner 
in which their orders are fulfilled, firms must comply with the 
following rules: 
'4.5 Return and refund 
"Conditions for the return of the ordered items for exchange or refund 
must be stated in the offer and in the delivery order showing the 
standard terms of sale or by all other means convenient to the firm." 
France 
The concept of a "contract negotiated at a distance" entered French law 
by virtue of a Ministerial Order of 3 December 1987 on price 
information for the consumer. 
Article 14 of this text is worded as follows: 
Art icle 14 
"The price of any product or service proposed to the consumer using 
a means of communication at a distance must be precisely indicated 
to the consumer, by any means admissible as proof, before the 
contract is concluded. 
"Means of communication at a distance within the meaning of this 
Order are all means enabling the consumer to order a product or 
request a service while at a place other than those in which 
customers are normally received. 
"Means of communication at a distance include, in particular, 
electronic data transmission, telephone, video transmission, mail 
and the distribution of printed matter." 
Distance selling is regulated by Law No 88-21 of 6 January 1988. This 
text was originally concerned with television selling but also contains 
general provisions applying to all distance selling. 
- 43 -
The trade association of mail-order and distance selling traders 
(SVPCD) has drawn up a "code of practice" setting out the main ethical 
rules by which firms engaging in this type of distributive trade are 
expected to be guided. 
I Contract formation 
The concept of distance is difficult to define. The distance referred 
to in the Law of 6 January 1988 is geographical distance, and telephone 
selling is thus included. 
1. The catalogue 
The catalogue must be written in French even if it relates only to 
foreign products (Article 1 of the Law of 31 December 1975 on the 
use of the French language). 
It must contain a description of the product and a definition of the 
nature of the contract. The price must be stated before the contract is 
concluded (Order of 3 December 1987 on the provision of price 
information to the consumer). If the firm offers a discount, both 
prices must be indicated. For credit sales, the offer must comply with 
Law No 78-22 of 10 January 1978. 
The catalogue must also state what stocks are available. 
2. Inert ia selIing 
Inertia selling is prohibited. The consumer must keep the object 
with a view to returning it, but is not obliged to send it back 
(Article R 40-12 of the Penal Code). 
The text is worded as follows.-
Art icle R.40 
"The following shall be punished by imprisonment for a period 
of ten days to one month and a fine of FF 1 200 to FF 3 000 or 
by one of these penalties only: 
" 12 (Decree No 61-138 of 9 February 1961, Article 1) 
'Persons who, without any prior request from the addressee, 
have sent him any object accompanied by an intimation that he 
may accept it on payment of a stipulated price or return it to 
the sender, even if the object can be returned without cost to 
the addressee'". 
- 44 
Telephone canvassing 
Telephone canvassing is regulated by Article 1-11 of the Law of 
23 June 1989. It is incorporated as Article 2 bis into Law No 72-
1137 of 22 December 1972 (on consumer protection in respect of 
canvassing and doorstep selling). 
This article is worded as follows. 
Art icle 2 bis 
(Law No 89-421 of 23 June 1989, Article 1-11) 
"Following an approach by telephone or by any comparable 
technical means, the trader must provide the consumer with 
confirmation of the offer made. The consumer shall not be bound 
except by his signature. He then benefits from Articles 1 and 
3, paragraph I, of Law No 88-21 of 6 January 1988 on the 
operations consisting of television advertising with an offer 
of sale and known as 'teleshopping'". 
Any firm using this technique must send the consumer confirmation 
of the offer it has made him. 
4. Mail 
There is no legislation regulating the distribution of advertising 
material via letterboxes. The consumer may use the "Stop publicite" 
system: to do so, he need only write to the trade association of 
mail-order and distance selling traders. He can also ask the post 
and telecommunications service to remove his name from the lists 
derived from the telephone directories which are marketed by France 
Telecom. He will then be placed on a suppression list - the "orange 
I ist". 
5. Advert is ing by fax 
The same type of list exists for fax and is known as the "saffron 
list". This list is provided for by Article 10 of Law No 89-1008 of 
31 December 1989. 
This text contains the following provisions: 
Art icle 10 
"Natural or legal persons may indicate that they do not wish to 
be canvassed by telex or fax by having their names placed on a 
public register of persons who are unwilling to receive such 
communications. Inscription in this register shall be free of 
charge. 
- 45 -
"Arrangements for the organisation and operation of the register 
mentioned in the preceding paragraph and for the penalties for 
failure to comply with this Article shall be laid down by decree". 
6. Teleshopping (television selling) 
In French law, the expression "teleshopping" (teleachat) is used 
for selling by television. 
France is the only Community country to have a special law in this 
area: Law No 88-21 of 6 January 1988. Article 2 of this Law relates 
specifically to teleshopping and stipulates: 
"In the month following enactment of this Law, the Conseil 
Superieur de I'Audiovisuel shall make rules for the scheduling, 
by the radio and television broadcasting services authorised 
under the terms of Law No 86-1067 of 30 September 1986 on 
freedom of communication, of broadcasts wholly or partly 
devoted to the presentation or promotion of objects, products 
or services offered directly for sale." 
The scheduling rules were therefore laid down by a decision of the 
independent audiovisual media authority on 4 February 1988. These 
rules apply to television broadcast by radio waves. Although 
broadcast by radio waves, the channel CANAL + is not covered by 
these regulations but is covered by the Law. Programmes of this 
type are prohibited on the two public channels (A2 and FR3). 
The minimum length of such a programme is 15 minutes, the maximum 
duration being 90 minutes per week. The programmes must be broadcast 
within specified times (between 8.30 and 11.30 a.m. and at night, once 
the channel's other programmes have ended). 
Art icle 2 
"Teleshopping programmes on television services distributed by 
terrestrial broadcasting or satellite shall last not less than 
15 minutes and in total shall not exceed 90 minutes per week. 
They may be broadcast only between 8.30 and 11.30 a.m. or at 
night after the end of the other programmes of the channel, and 
may not be broadcast on Sundays." 
The programme presentation and content are also regulated (special 
announcement, no interruption by advertising spots). 
- 46 -
Art icle 4 
"Teleshopping programmes shall be clearly announced as such 
and, on television, shall be programmed in dedicated screens, 
without any possibility of interruption, in particular by 
advertising screens. They shall be so presented that they 
cannot be confused with other programmes and may not be the 
subject of trailers or preparatory programmes." 
Teleshopping practice differs from catalogue selling in that the 
make and name of the manufacturer may not be mentioned on the air. 
At most, they may be indicated on the contract. 
Article 7 
"The make, the name of the manufacturer or distributor of an 
object or product and the name of the party rendering a service 
offered for sale shall not be shown, mentioned or indicated on 
the airwaves or be advertised or published in connection with 
the programme by any other means. The make, if appropriate, 
shall be stated at the time of the order, as must the name of 
the manufacturer or the distributor providing the guarantee." 
Infringement of any of these rules is punished by a fine of between 
FF 6 000 and FF 500 000. 
Article 3-11 (Law of 6 January 1988) 
"II. Any de Jure or de facto manager of a radio or television 
service as defined in Article 2 of this Law who schedules a 
programme infringing the rules made pursuant to this same 
Article and has it broadcast or distributed shall incur a fine 
of FF 6 000 to FF 500 000." 
Automatic calling machines 
New regulations for this means of communication are under 
considerat ion. 
The working party of the Conseil National de la Consommation has 
delivered an opinion and made recommendations on automatic calling 
machines (on 15 March 1990). The recommendations are as follows. 
- 47 -
"Conclusion 
"The Working Party, being aware of 
the need to follow closely the development of these 
systems; 
the immediate European environment and the discrepancies in 
the regulations applying within it; 
the limitations of self-regulatory measures, which cannot 
be'applied to potential 'cowboys', 
recommends that the Government should devise regulatory 
measures in this area with the aim of: 
giving the consumer a right of refusal; 
imposing a strict framework on the use of such techniques: 
content of the messages, identification, liability etc.; 
encouraging self-regulatory measures to fill out the 
details of this framework. 
"It also urges the Government to promote discussion of these 
matters at Community level." 
The texts were submitted for opinion to the members of the CNC at 
its plenary meeting on 3 July 1990 and were unanimously approved by 
both sections. 
8. SelIing by Minitel 
Selling by Minitel is covered by Article 43 of the Law of 
30 September 1986, which instituted a system of prior announcement. 
Article 43 
"The requirement for prior announcement applies to the 
following: 
... Advertising material distributed by the services mentioned 
in this Article must be presented as such. 
"The service supplier is required to make known to the users: 
1. The items mentioned in Article 37 of this Law 
2. The rates applying if there a charge for the service 
- 48 
Section V.2 of the Circular of 17 February 1988 (implementing 
Article 43 of the Law) regulates Minitel sales advertising: 
"Under the terms of Article 43 of the Law of 30 September 1986, 
advertising material shall be presented as such, i.e. announced 
by a visual or audible signal. 
"It shall comply with the laws, regulations and trade practices 
applying." 
Apart from this text, there is no specific regulation of selling by 
Minitel. 
11 Performance of the contract 
A distinction must be made between the order and the obligations of the 
part ies. 
A The order 
The order pertains both to contract formation and to contract 
performance. The contract is formed on the date of the order. 
If the order is sent by post, the relevant date is that on which 
the consumer posts it. 
If the order is placed by telephone or by electronic data 
transmission, the sale is concluded at the moment of the call. 
If the customer hands in the order at a catalogue station, the 
relevant date is the date on which he does so. 
The order form must contain certain information, especially with 
regard to price. It must indicate whether or not the delivery costs 
are included in the price. 
If the consumer is a minor, the order form must be signed by his 
legal guardian. 
Once the sale has been concluded, obligations arise for the 
part ies. 
Obiigat ions 
1. Seller's obligations 
The seller must deliver an object which corresponds to that ordered 
by the customer. If the object does not correspond to the order, 
the consumer may demand a new delivery, an exchange or cancellation 
of the order and the refund of any moneys paid. 
The seller must deliver the object ordered within a reasonable 
period. If delivery does not take place in good time, the buyer may 
avail himself of Article 1610 of the Civil Code: 
- 49 -
Article 1610 
"If the seller fails to deliver within the time agreed between 
the parties, the purchaser may, at his own discretion, apply 
for rescission of the sale or an order for possession, if the 
delay is caused solely by the seller." 
A court ruling of 13 December 1973 introduced the concept of a 
"reasonable period" within which delivery must take place (civ 3e, 
10 avril: Bull III, n 274, p. 198). 
In the event of non-delivery, the seller must reimburse the buyer 
if stocks are exhausted. If the package was dispatched but not 
delivered, he must provide proof that this is the case and send a 
second package if he cannot provide such proof. 
The seller must respect the buyer's right to return the goods. 
Article 1 of the Law of 6 January 1988 grants the buyer the right 
to return goods within seven clear days. 
Article 1 
"In all distance selling transactions, the buyer of a product 
shall have a period of seven clear days from delivery of the 
order within which he may return the product to the seller for 
exchange or reimbursement, without incurring any penalty other 
than the cost of return." 
Any seller who refuses a buyer this right incurs a fine, which is 
laid down in Article 1 of Decree No 88-539 of 5 May 1988. 
Buyer's obligations 
The buyer must take delivery of the item and pay for it. Payment 
may be made at different times. The buyer has a choice of various 
modes of payment. 
The two modes which give rise to problems are payment "cash on 
delivery" (he may be obliged to pay for the entire order when he 
has received only part) and payment by credit or debit card (risk 
of theft, use of the number without the owner's consent, in which 
case the seller must reimburse the customer). 
The customer may also pay by cheque or charge card, in which case 
he does not benefit from the seven-day period prescribed by the 
instrument on consumer credit. 
The place of contract formation is regulated by Article 46 of the 
Civil Procedures Code. 
It is either the place of delivery or the buyer's place of 
residence. 
- 50 -
Ireland 
The practice of distance selling operates in Ireland on a significantly 
lesser scale than in the United Kingdom and there are no methods of 
distance selling existing in Ireland which do not exist in the United 
Kingdom. There is also a great deal of similarity between Irish and 
British law, particularly in the area of contract law, which is the 
area most central to distance selling. Little legislation has been 
enacted on contract law and the rules and principles which comprise and 
shape contract law in Ireland do not in the main radically differ from 
those developed by the English Judiciary at Common Law. There are the 
same Judge-made requirements as to formation of contract, notice and 
other such rules on interpretation of ambiguous clauses as exist in the 
law of the United Kingdom, together with the acceptance of the doctrine 
of fundamental breach. 
Substantive rules as a means of protecting consumers are now contained 
in three pieces of legislation, the Consumer Information Act 1978, Sale 
of Goods Act 1980 and the Data Protection Act 1988, each of which 
mirrors similar legislative provisions in the United Kingdom. 
The 1980 Act contains the only provision in Irish law which relates 
specifically to distance selling. Section 47 of Part VI of the Act 
deals with the subject of the sending of unsolicited goods, or "inertia 
selling", and essentially states that a person who receives such goods 
may keep them without payment in the following circumstances : 
a) at the end of six months, provided the consumer has not 
unreasonably prevented the supplier from collecting them (during 
this period the consumer should not use the goods and should take 
reasonable care of them); or 
b) 30 days after the consumer gives written notice to the sender of 
the fact that goods are unsolicited, the name and address of the 
consumer and the place where the goods can be collected. 
It may be an offence to demand payment for unsolicited goods in such a 
way as to imply that the sender has a right to payment. It is also an 
offence to threaten legal action or other dire consequences without 
reasonable cause. 
The 1980 Act also lays down certain mandatory provisions relating to 
consumer transactions and defines the fairness and reasonableness of 
contract terms by reference to certain criteria in the Act's schedule. 
- 51 -
The Consumer Information Act 1978 provides protection for consumers 
against deceptive sales practices and renders it an offence of strict 
liability to apply a false trade description to any goods. The Act 
also contains a general clause prohibiting advertisements in relation 
to the supply or provision of goods, services or facilities in the 
course of or for the purposes of a trade, profession or business if it 
Is likely to mislead and thereby cause loss, damage or injury to 
members of the public to a material degree. 
The 1978 Act also established the Office of Director of Consumer 
Affairs, who has certain supervisory, informative and enforcement 
responsibilities in respect of both the 1978 Act and the 1980 Act. The 
Director may take action by way of prosecution or otherwise in respect 
of contracts which infringe the legislative rules. Consumers will now 
have a more effective means of enforcing their legislative rights under 
a new small claims courts system recently established by the Courts 
Acts 1991 on the lines of that operating in the United Kingdom, albeit 
on a pilot scheme basis for the time being. 
The Data Protection Act 1988, giving effect to the Council of Europe 
Data Protection Convention, is very similar in scheme to that of the 
1984 UK legislation. The Act gives a right to every individual 
irrespective of nationality or residence to establish the existence of 
personal data, to have access to any such data relating to him and to 
ensure that the data kept are collected fairly, are accurate and up-to-
date, are kept for lawful purposes and are not used or disclosed in any 
manner incompatible with those purposes. 
The Act also requires both data controllers and processors to protect 
the data they keep, and imposes on them a special duty of care in 
relation to the data subjects. For the purposes of the Act, the word 
data means information in a form in which it can be processed 
automatically, and applies to data regarding an individual only and not 
a corporation. The Act does not extend to personal information kept on 
manual files but does apply to information kept on every kind of 
computer. 
The Act establishes the office of Data Protection Commissioner, who is 
appointed by the Government and whose essential function is to 
supervise and monitor the working of the Act. The Irish Act opts for a 
system of selective registration under which only certain selected 
categories of persons have to register. The particulars to be included 
in the register include the purposes for which the personal data is 
kept or used, description of the data and the persons to whom the data 
may be disclosed. 
- 52 -
As regards specific provisions in the legislation relating to distance 
selling, the following points should be noted: 
1) In the definitions, direct marketing is defined as including 
direct maiIing. 
2) In relation to subject rights, an individual has the right to 
have his details removed on written request from a direct 
marketing list within 40 days. 
There is no mailing preference service available in Ireland as 
yet, but such a service is being actively considered by the 
industry. 
3) In relation to registration, those whose business consists 
wholly or mainly of direct marketing are among those who have 
to register their particulars in the public register described 
above. 
The Irish Act envisages self-regulation through the development of 
sectoral codes of practice and there Is provision in the Act for such 
codes to be given the force of law. No such codes have yet been 
adopted but the Data Protection Commissioner has selected direct 
marketing as one of two sectors for initial attention in this regard 
and has had a number of preliminary meetings with the Irish Direct 
Marketing Association to discuss the possibility of their adopting such 
a code of practice in their sector. 
Italy 
The Law of 29 December ("Community Law 1990"), passed by the Parliament 
in order to clear "the backlog in the implementation of Community law" 
from which Italy still suffers, provided for powers to be delegated to 
the government to implement a large number of Directives within a year 
by means of "decreti delegati" (ministerial orders). 
In the field of consumer protection, Article 41 is concerned with 
implementation of Directive 84/450/EEC (misleading advertising) and 
Article 42 provides for an order implementing Council Directive 
85/577/EEC, stipulating that this order is to regulate not only 
contracts negotiated away from business premises but also certain forms 
of distance selling ("selling by television or other means of 
audiovisual communication"). 
With a view to exercising these delegated powers, the government has 
prepared a preliminary draft order, which was discussed at a meeting 
with the trade and consumer organisations on 13 June 1991. The purpose 
of this preliminary draft, as formulated in Article 1, is to regulate 
contracts negotiated away from business premises and mail-order sales, 
but Article 8 provides that: 
- 53 -
"The right of withdrawal shall also apply to sales by television or 
by other means of audiovisual communication, including sales by 
means of data processing and electronic data transmission systems". 
(Doorstep selling and certain forms of distance selling are thus 
dealt with together in the same text.) This right obtains for a 
period of seven days (Article 5). 
The concern of the Italian Parliament and government is all the more 
understandable since there has been an upsurge in selling by television 
in Italy, which is unmatched in any other European country. There are 
several hundred commercial television stations, most of which are small 
stations with a local audience, operating entirely without supervision. 
(This "Wild West" was not brought under control and a full inventory 
ordered until Law No 233 - the "MAMMI Law" - was enacted on 
9 August 1990. The Inventory should be complete by the end of 1991, but 
the rules do not include any provisions for television selling.) 
There has so far been no follow-up to the Government's preliminary 
draft: there is thus no specific regulation at present for distance 
selling. The provisions applying are therefore those of the Civil Code 
and case law. They may be outlined as follows. 
1. Def ini t ions 
The Civil Code does not refer to the "consumer" but only to the 
"buyer". However, the difference between a purchase made in the course 
of an occupational activity and a purchase made for a use unconnected 
with such activity may be very important in court rulings when the 
point at issue is the application of the rules of good faith in the 
negotiation (Article 1337), the interpretation (Article 1336) and the 
performance (Article 1375) of contracts. 
The "contract negotiated at a distance" is also undefined, even though 
distance may be important as a source (or contributory cause) of 
factual error, thereby rendering the contract void under certain 
conditions (Articles 1427 et seq.). 
- 54 -
2. Solicitation 
With regard to soliciting for the sale of securities, Law No 216 of 
7 June 1974 (which set up the National Stock Exchange Supervisory 
Commission - CONSOB) and Law No 77 of 23 March 1983 (which introduced 
investment trusts to Italy) provided for rules governing all "public 
solicitation for saving" (including advertising). 
All contract solicitation Is covered by Article 1337 of the Civil Code, 
which is worded as follows: 
"During the negotiation and formation of the contract, the 
contracting parties must act in good faith". (This "pre-
contractual" responsibility may give rise to liability for damages 
and interest.) 
On the other hand, there are no rules in the Civil Code to safeguard 
the consumer's privacy against solicitation by telephone or by means of 
data transmission systems, and Article 660 of the Penal Code, which 
creates an offence of "Molestie Telefoniche" (creating a nuisance by 
telephone) could apply only in extreme cases. 
3. Right of withdrawal 
With regard to the sale of securities, Article 18 of Law No 216/1974 
stipulates that: 
"The validity of contracts signed as a result of canvassing is 
suspended for a period of five days. During this period, the 
consumer, without incurring any penalty, may intimate by 
telegram that he is withdrawing from the contract." 
For any other sale, there is the possibility of "annullamento" or 
"risoluzione" (voidance or rescission), but there is no right of 
"ripensamento" (withdrawal). Under Article 1427 of the Civil Code, 
the buyer may ask for a contract which has already been concluded 
to be declared void if there has been an "essential" error: 
according to Article 1428 (sections 2 and 3) errors are "essential" 
if they concern the quality of the object to which the contract 
relates or the identity or status of the seller (these are 
conditions which may well be satisfied in distance selling). It 
should be emphasised that, in this connection, Article 1431 refers 
to contract "circumstances" and to the "status of the contracting 
parties" as a basis for establishing whether the seller could be 
"aware of the error". Court rulings may thus attach great 
importance to the (non-occupational) "status" of the buyer/consumer 
and to the place where the contract was concluded (distance 
selling) in order to establish that the error was an essential one 
and that the seller could be aware of it. 
- 55 -
It should also be mentioned that, given the lack of legislative rules, 
certain trade bodies have established voluntary supervision systems. 
The AIDIM (Italian Direct Marketing Association) has established a 
"Code" for telemarketing. 
The ANVED (Italian Distance Selling Association) has drawn up a 
"Code of business ethics for distance and mail-order selling", 
infringement of which may in theory lead to expulsion (following a 
decision by a disciplinary board). This Code also provides for a 
right of withdrawal, within a period of seven days from receipt of 
the product. 
The IAP (Self-Regulatory Advertising Standards Institute) includes 
in its "Self-regulating code for the advertising industry" specific 
rules requiring fuller information (Article 18) for advertising in 
connection with mail-order selling and prohibits all advertising in 
connection with the sending of unsolicited goods (Article 19). The 
"Codes" and supervisory procedures of the trade bodies are 
obviously binding in civil law on their members only. 
Luxembourg 
Luxembourg law contains one legislative provision concerning distance 
selling. This is Article 7 of the Law of 25 August 1983 on legal 
protection of the consumer, and is worded as follows: 
"Article 7 - In contracts concluded by correspondence between a 
supplier who is a trader and a final consumer who is a private 
individual, the latter may, within seven days of the order or the 
commitment to purchase and within fifteen days of receipt of the 
goods, withdraw from the contract by means of a registered letter 
with a form for advice of receipt. Any clause in the contract by 
virtue of which the customer renounces his right of withdrawal 
shall be null and void. 
"in the event of any dispute with regard to the date of order or 
commitment to purchase or of the date of receipt of the goods, the 
burden of proof shall be borne by the supplier/trader". 
The distinctive feature of the Luxembourg legislation is the 
institution of two periods for withdrawal from the contract: 
7 days from the order or commitment to purchase; 
15 days from receipt of the goods. 
- 56 -
This withdrawal must be notified in writing by means of a registered 
letter with a form for advice of receipt. Under Luxembourg law, the 
contract is formed when the consumer returns the order form, but the 
sale is finalised when the second cooling-off period has expired. 
The text also states that any contract clause which would have the 
effect of invalidating the right to withdrawal, even with the 
consumer's consent, is null. 
Finally, the text reverses the burden of proof in ail matters 
concerning the dates of the order, the commitment to purchase or 
receipt of the goods. 
When this bill was under discussion, the government was considering a 
system of administrative authorisation of traders seeking orders by 
correspondence. This proposal has been dropped. 
Canvassing by telephone is prohibited, but the manner in which this 
prohibition is imposed is somewhat indirect. Article 8 of the Law of 
5 March 1970 on hawking states that: 
"It is prohibited to solicit retail or wholesale orders from 
persons who do not trade in goods ...". 
Solicitation by telephone, and apparently also the use of fax to 
approach consumers, are not permitted. 
"Article 14-1 - Contracts concluded in contravention of this Law 
are null. However, only a final consumer who is a private 
individual may avail himself of this provision." 
It may thus be deduced that a contract concluded as a result of a 
telephone call (solicitation) from the trader may be rendered void if 
the consumer so requests. 
Article 16 nonetheless lays down penal sanctions for infringement of 
Article 8 (one to seven days' imprisonment and a fine of Lfrs 2 000 to 
Lfrs 30 000). 
The Law of 25 August 1983 does not define the terms "contracts 
concluded by correspondence" (Article 7) and "contracts concluded by 
home canvassing" (Article 8). It may be deduced that a contract 
concluded by a call made on the trader's initiative is covered by 
Article 8 and a contract concluded by a call made at the consumer's 
initiative is covered by Article 7. 
Luxembourg law has no provisions for inertia selling. 
The Law of 27 November 1986 "regulating certain trade practices and 
penalties for unfair competition" includes provisions which make it 
possible to bring actions against unfair advertising and render all 
intermediaries involved in its dissemination responsible. Article 18 
reads as follows: 
- 57 -
"Article 18 - Al I commercial advertising promoting an act which is 
to be regarded as an act of unfair competition within the meaning 
of this Law is prohibited. 
"Only the advertiser may be held responsible for this infringement. 
"However, if the latter is not domiciled in the Grand Duchy, the 
injunction proceedings may also be brought against the publisher, 
printer or distributor of the disputed material and against any 
person who contributes to its effects." 
Luxembourg also has detailed regulations on videotex (Grand-Ducal 
Regulation of 29 October 1986 on the public videotex service) dating 
from 8 November 1986. This text also covers electronic mailboxes. In 
this context, it is possible to establish "closed groups of users" 
(Article 5.3). Article 5.3.32 states that "before including a user in 
his closed group or groups, the supplier must, however, have obtained 
that user's explicit consent". 
The Netherlands 
I Selling by telephone (telemarketing) 
There are no specific legal provisions with regard to distance selling 
by telephone in the Netherlands. 
The Industry itself, however, has adopted a code concerning 
telemarketing, the so-called "Telemarketing Code". This code contains 
rules regarding the use of telephones, protecting consumers against 
misleading information provided over the telephone. For example: 
"The person who initiates the phonecall must introduce himself and 
say on whose behalf he is calling. He must also mention the reason 
for the conversation. 
"When the call is not convenient for the consumer at that 
particular time, the conversation must be ended immediately. 
- 58 -
"Information about the goods and services offered by phone has to 
be clear and exact and the consumer has to be informed of his 
rights and obligations. 
"The agreement made over the telephone has to be confirmed in 
writing and the consumer has the right to cancel the transaction 
within seven days after the receipt of the confirmation." 
Companies which belong to the Dutch "Postorderbond" are bound by their 
membership to the rules of the "Telemarketing Code". 
Telemarketing is a "booming business" in the Netherlands. Last year 
(1990) total sales in telemarketing reached a level of 2.2 billion 
Dutch guiIders. 
Selling by telefax is not yet practised on a large scale. Selling 
between business and consumer is rare, mainly because most consumers do 
not own a telefax. In business to business communication the use of 
telefax is growing. However, there have been complaints about the 
misuse of the telefax, especially concerning unsolicited junkmail. 
I I Selling by videotex (videoshopping) 
In the Netherlands there have been some experiments with videotex. 
Since 1980 it has been possible to shop from home. 
The best-known system is Videotex Nederland (Videotex NL). It was 
established in 1988. It is the first large-scale open videotex system 
which is operational all over the Netherlands. It has been established 
to function as an umbrella organization for all videotex systems in the 
future and is therefore partly financed by the Dutch Department of 
Economic Affairs. In March 1991 the total number of consultations was 
411 000, four times as many as in March 1990. 
There is also no specific legislation concerning videoshopping in the 
Netherlands, probably because it has so far not taken place on a very 
large scale, and in practice there has therefore been no demand for 
legislat ion as yet. 
The Dutch "Postorderbond", however, has developed a code concerning 
advertising by way of videotex. This code contains a rule which 
guarantees that the consumer has the right to return the goods within 
seven days after the transaction without any further obligations. 
59 -
I I I Selling by television 
The "Mediawet 1987" is the law concerning radio and television 
programmes. Some of its rules concern advertisement on TV (Dutch 
advertising code). For example: "The advertisements may not take 
longer than 5% of the total transmission time. Commercials must be 
recognisable and separated from the other programmes. They may not 
interrupt a programme and are prohibited on Sundays". 
The national broadcasters are not allowed to send out commercials, only 
the "Stichting Etherreclame", a separate legal person, has this right. 
Cable suppliers are not allowed to send out commercials which do not 
comply with the above-mentioned conditions, unless the messages are not 
specifically meant for the Dutch public. 
Neither the "Stichting Etherreclame" nor the cable suppliers can be 
held responsible for delivery or guality of the products. 
The "Direct Marketing Institute" in the Netherlands expects television 
selling to become an important selling tool over the next years. 
IV SelIing by ma iI 
Nowadays consumers can use all kinds of new media to order goods from a 
mail-order company, for example telephone, personal computer, etc., but 
also by way of direct response advertising by mail, which means that 
the advertisement is published in the paper and the consumer can call a 
telephone number or send back a coupon. Another form is "direct mail", 
i.e. all mail that tries to attract the attention of the addressees. 
in Holland there are about 350 mail-order houses. Most of them still 
use the catalogue but a few houses have introduced new ordering systems 
such as automatic voice-response computers or videotex services. Most 
distance selling transactions concern non-food sales, however at 
present about 15 000 to 20 000 households in the Netherlands buy 
foodstuffs at a distance and this figure is expected to rise quickly in 
the coming years as well as the volume of direct response advertising 
by mail and direct mail. 
- 60 -
V Legal aspects and distance selling in summary 
At present, no specific legal provisions are available with regard to 
distance selling in the Netherlands. In principle, the existing rules 
for legal transactions and sales contracts based on the more classical 
form of sale are applicable to distance selling methods. 
Rules of Dutch contract law are laid down in Books 3 and 6, Title 5 of 
the New Civil Code, which will replace the old books of the Civil Code 
on 1 January 1992. 
Consensus between the contracting parties is essential for a contract, 
which has to be declared in a written, verbal or electronic way. The 
contract is concluded once the offerer acknowledges the acceptance, or 
could reasonably have acknowledged the acceptance. 
Legal conditions for the establishment of a valid contract under Dutch 
law are: 
- having the capacity to conclude a contract 
a defined subject 
a lawful case 
- consensus between the contracting parties. 
When dealing with distance selling it is not always easy to determine 
whether these conditions are fulfilled. 
Selling by telephone, television, videotex or mail-order means that an 
agreement is made between seller and consumer to deliver goods or to 
render a service. 
The distinctive features of most distance selling methods are that the 
transaction is paperless and that the parties are not physically 
present during the process of concluding the contract. Nevertheless, 
the contract can be agreed upon and legally exists, according to the 
rules of contracting law, without parties being physically in each 
other's presence. 
The consumer, having less knowledge of a product or service, is 
entitled to be correctly informed about the contents of the product or 
service. 
The new section of the New Civil Code seeks to protect the consumer, 
as the weaker party in the process of contracting. The provisions 
cover matters such as delivery, price, risk and time and place of 
delivery. In consumer sales, the risk will transfer from the seller to 
the consumer at the moment of delivery "de facto". 
- 61 -
Article 26 of the New Civil Code contains a provision about payment in 
advance. Normally the payment has to be made at the time and place of 
delivery. In consumer transactions there can be a request for payment 
in advance. This however can never be more than 50% of the total price 
of any goods. The Netherlands is the only Member State which has such 
a provision in its Civil Code. 
A derogation in standard terms which is disadvantageous for the 
consumer is regarded as unfair and can be annulled. There is also a 
list of standard terms which are definitely regarded as unfair to the 
consumer (black list) and a list of terms presumed to be unfair (grey 
Iist). 
Another form of protection of the consumer concerns unsolicited goods. 
A consumer who receives these goods has the right to keep them or to 
return the goods at the expense of the seller. 
It is very difficult for a consumer to prove that, for example, the 
wrong quantity of goods has been delivered. Similarly, the problem of 
proving that the product has not been delivered is not an easy one to 
solve. 
To determine who bears the burden of proof, Dutch law applies the 
principle: "The party who asserts a fact has to prove it" (Article 177 
of the Code of Civil Procedure [RV]). This provision, however, also 
allows the Judge the option of disregarding this rule. If its effects 
are unfair, parties are in principle free to stipulate who bears the 
burden of proof. For the consumer who uses distance selling methods, 
it means that he will have the burden of proof when he disputes a 
delivery which was not ordered, unless the supplier and the consumer 
have agreed otherwise, which will not often be the case. 
The fact that the consumer as contracting party has no influence at all 
on the outcome of the electronic transaction makes it even more 
difficult to provide evidence. He may actually be right, but since he 
bears the burden of proof, he may be unable to produce the required 
evidence and may therefore fail in his legal action. 
In January 1992, rules on consumer sales (Section 7.5 of the New Civil 
Code) and general conditions laid down in the NCC will give the 
consumer some means of protection. Articles 6: 236-238 (black and grey 
list) are only applicable to contracts with the consumer as contracting 
party. These provisions were specifically drawn up to give the 
consumer more protection. In some cases the Supreme Court has already 
pre-empted these articles by applying Section 6.5.3. 
- 62 -
General rules on misleading advertising are set out in the New Civil 
Code, which is adjusted to the restrictions and prohibitions laid down 
in the minimum EEC Directive on misleading advertising, which gives a 
minimum standard of protection. Member States are entitled to have a 
higher standard of consumer protection in their national legislation. 
Selling by telephone is not regulated under Dutch law. In order to 
protect the consumer against aggressive sales methods the law on door-
to-door sales came into force in 1975. On 3 July 1989 this law was 
changed due to the obligations laid down in the EEC Directive on 
contracts negotiated away from business premises. One of the essential 
elements of this law is the fact that the agreement concluded between 
both parties has to be in writing and that each party has to receive a 
copy. If this condition is not fulfilled, the contract will not be 
vaI id. 
The consumer is also entitled to a cooling-off period of eight days in 
which he can decide whether or not to undo the bargain. 
During the adjustments to the directive, selling by telephone was not 
included in the rules. The legislator thought that the pressure put on 
the consumer to buy goods or services in the case of selling by 
telephone was less than for door-to-door sales. The telemarketing 
industry, however, has developed a code of conduct for telephone 
contracts. 
In order to control the use of personal data and its registration, 
movement and storage, the Privacy Act (Wet Persoons Registratie) came 
into being in the Netherlands in 1990. It gives the individual the 
right to inspect and correct the data registered about him and the 
right to know to which persons or organisations data are given. It is 
forbidden to make use of this data for purposes other than that for 
which they were registered. Control of the proper implementation of 
the Act is the responsibility of an independent institute, the 
"Registratiekamer" (Registration Chamber). 
Portugal 
Portugal appears to have been the first Member State of the Community 
to introduce general regulations for all forms of distance selling. The 
basic text on protection of Portuguese consumers is Law No 29/81 of 
22 August 1981. 
An instrument implementing this text has been enacted: Decree-Law 
No 272/87 of 3 July 1987 on doorstep selling (Chapter I), mail-order 
selling (Chapter II) and inertia selling (Chapter 111). 
- 63 -
I. Mai 1-order selIIno 
Chapter II of the Decree covers not only mail-order selling but also 
all forms of distance selling. 
This Chapter consists of five articles with the following content. 
1) Definition 
Article 8 of the Decree seeks both to define distance selling and 
to delimit the scope of the instrument. 
The first paragraph of the text is worth reproducing in full. 
Article 8 
Definition and scope 
"1. For the purposes of this text, mail-order selling means the 
mode of retail distribution in which the consumer is offered 
the facility of placing an order by post, telephone or any 
other means of communication for goods or services presented in 
catalogues, magazines, newspapers, printed matter or via any 
other graphic or audiovisual media." 
2) Content of the offer 
Article 9 emphasises the need for the offer to be clear and to contain 
certain items. 
It contains a list of items which it is mandatory to include in the 
offer made to the consumer. 
Article 9 
Content of the offer 
Offers for mail-order sales shall be clear, complete and so 
worded that there can be no doubt as to the nature, 
characteristics and price of the goods or services or about the 
terms of payment. 
In accordance with the foregoing paragraph, the offer shall 
include: 
a) a description of the goods or services, indicating those 
characteristics which are necessary to enable them to be 
fully identified; 
b) the price of the goods or services and the mode and terms 
of payment; 
c) any other charge to be borne by the consumer; 
d) the period within which the goods will be dispatched or 
performance of the service begun, from the date of receipt 
by the seller of the consumer's request; 
e) the guarantee and after-sales service arrangements, when 
Justified by the nature of the goods; 
- 64 -
f) the name, address and details permitting identification of 
the selling firm and an indication of the place to which 
the consumer may address orders or requests for 
information; indication of a post-office box alone or any 
other indication which does not allow the seller or his 
representatives to be immediately located is not permitted. 
"3. For the purposes of the foregoing paragraphs, general 
advertising which does not include any specific proposal for 
the purchase of goods or the rendering of a service is not 
regarded as an offer of sale." 
3) Form and content of the contract 
Article 10 requires the seller to give the consumer a document 
containing the items mentioned in Article 9 (section 1). 
This document is not required when the order form is an integral part 
of the medium used for the sales offer (section 2). 
The contract must be in writing when the sum to be paid is Esc 9 000 or 
more (section 3). This figure was increased to Esc 20 000 (i.e. 115 
ecus) by an Order of 20 June 1991. 
Article 10 
Form, content and value of the contract 
"1. Once the consumer has notified the seller of his acceptance of 
the offer, the latter shall, either before or at the time of 
dispatch of the goods or rendering of the service, provide him 
with a document containing the items mentioned in the foregoing 
Article. These items must correspond with the terms of the 
initial offer. 
"2. The document mentioned in the preceding paragraph is not 
required when the order form is an integral part of the medium 
used for the sales offer. 
"3. In mailorder sales, contracts in the sum of Esc 20 000 or more 
shall always be made in writing." 
4) Withdrawal from the contract and obligation to provide information 
This right and obligation are regulated in Articles 11 and 12. Article 
11 gives the consumer the right to withdraw from the contract subject 
to certain conditions. 
Article 11 
Right to withdraw from the contract 
and obligation to provide information 
1. The consumer may withdraw from the contract within seven 
working days following receipt of the goods. 
- 65 -
"2. Before conclusion of the contract, the consumer must be 
informed in writing by the other contracting party of the right 
mentioned in the preceding paragraph. 
"3. The time limit mentioned in paragraph 1 may be extended by 
agreement between the parties. 
"4. Mail-order sales are subject to the provisions of Article 4 (4) 
to the effect that the right to withdraw from the contract 
cannot be renounced and that the exercise of this right may not 
give rise to penalties, and to the provisions of Article 6 
stating that advance payment may not be demanded and 
stipulating the nature of any such payment." 
Art icle 4 
"4. Clauses by which the right stipulated in the preceding 
paragraph are renounced shall be void, as shall clauses 
providing for indemnities or penalties of whatever nature in 
the event of the consumer's exercising his rights." 
Article 4 (4) makes it virtually impossible for the buyer to 
renounce this right. 
Article 6 
Advance payment 
"1. No payment may be demanded from the consumer before receipt of 
the goods or performance of the service. 
"2. Any sum paid by the consumer before expiry of the periods 
mentioned in Article 4 is regarded as proof of the contract and 
as an instalment on the agreed price." 
Article 12 
Mode of withdrawal from the contract 
"Subject to agreement between the parties as to the mode and 
consequences of exercising the right to withdraw from the contract, 
the provisions of Article 5 apply, mutatis mutandis, to mail-order 
sales." 
11. Inert ia selIing 
Two articles of the Decree regulate this type of practice. 
1) Article 14 defines and prohibits inertia selling. 
Article 14 
Definition and prohibition of inertia selling 
"1. Trade practices in which a consumer's failure to reply to an 
offer or proposal made to him are considered as tacit 
acceptance may not be used to promote retail distribution of 
goods or services. 
- 66 -
"2. The consumer shall in no case incur any obligation as a result 
of the practices mentioned in the preceding paragraph even if 
the offers or proposals expressly stated that failure to 
respond within a certain time would be regarded as tacit 
acceptance." 
2) Article 15 is concerned with non-solicited goods. A consumer who 
receives a product which he has not ordered or requested may keep 
it free of charge. 
If he returns it, he is entitled to reimbursement of the costs of 
doing so. 
Article 15 
Unsolicited goods 
"1. Without prejudice to Article 62 of Decree-Law No 28/84 of 
20 January 1984, the addressee receiving a product which has 
not been requested or ordered or which does not represent the 
performance of some valid contract is not required to return it 
or pay for it but may keep it free of charge. 
"2. If, notwithstanding the provisions of the preceding paragraph, 
the addressee returns the product, he is entitled to 
reimbursement of the return costs within 30 working days of his 
do i ng so." 
United Kingdom 
Current distance selling practices in the United Kingdom reflect an 
increasingly large proportion of sales of goods and services taking 
place at a distance. Whilst traditional distance selling techniques 
such as mail-order remain popular, the industry is taking advantage of 
modern technology to develop new selling methods, and the use of 
videotex and teleshopping is becoming more prevalent. It is of interest 
to note that the turnover of the catalogue mail-order trade constitutes 
more than 3 X of the total retail trade in the UK. It is also relevant 
to note that the growth of distance selling transactions has .been 
encouraged by the increased availability of credit cards and debit 
cards. 
Legal regulation of distance selling transactions in the UK consists in 
the main of the basic principles of English contract law at common law. 
Consumer transactions are also generally subject to legislative rules 
particularly in the area of consumer credit and financial services, but 
the notable feature of the current regulation of distance selling is 
the amount of "soft" law in the form of self-regulatory codes of 
practice which dominate this field. The matter is further complicated 
by the large number of organisations involved in the self-regulatory 
process. 
- 67 -
An important point to note in respect of these codes of practice is 
that some are issued subject to specific statutory authority and have 
the force of law, although most of them are non-binding, but may well 
be referred to by the courts as representing good practice. Many of the 
codes have been introduced in co-operation with the Director-General 
for Fair Trading, who has a duty under the Fair Trading Act 1973 to 
encourage trade associations to prepare and disseminate codes of 
practice. Part 3 of the 1973 Act gives the Director-General of Fair 
Trading a general power to act against any person carrying on business 
who persists in conduct detrimental to the interests of, or is unfair 
to, consumers. The Director-General has powers of investigation, and 
may seek assurances from businesses that they will refrain from the 
conduct giving rise to the complaints, and he may ultimately bring 
proceedings in the restrictive practices court or in the county court, 
as may be required. The traders' associations operating codes of 
practice which where drawn up in consultation with the Office of Fair 
Trading will generally report to the Director-General on an annual 
basis on the operation and effectiveness of the codes. 
Consumer distance selling contracts at common law require for their 
validity the basic components of offer, acceptance, consideration and 
intention of the parties to contract. Advertisements by distant sellers 
are in fact classified as invitations to treat, which invite offers. 
When a consumer places an order, he is making an offer to the supplier 
who, in the context of distance selling techniques, usually accepts the 
offer by the act of dispatching the goods. The terms of the contract 
are normally agreed between the parties but there are some terms 
implied by Statute. The Sale of Goods Act 1979 implies conditions into 
consumer contracts that the seller has the right to sell the goods; 
that the goods must, if they are sold by description, correspond with 
that description; that the goods are merchantable and fit for the 
purpose as is reasonable to expect having regard to their description 
and circumstances of the case; that the goods must be reasonably fit 
for a required purpose which had been made known to the seller; and 
that where goods are sold by sample, they must correspond with that 
sample. 
Goods can only be rejected by the consumer after delivery if any of the 
aforementioned conditions have been broken or if there is an express 
right to do so in the contract. The Code of Practice of the Mail-order 
Traders' Association recommends its members to supply goods on approval 
for 14 days, and in general, consumers are given the benefit of this 
recommendation subject to their returning the goods undamaged. 
- 68 -
The Consumer Credit Act 1974 provides for a five-day cooling-off period 
in respect of consumer credit agreements and the Consumer Protection 
(cancellation of contracts concluded away from business premises) 
Regulations 1987 provides for a seven-day cooling-off period for other 
contracts but only where the contract was preceded by oral 
representations made in the debtor's presence, thus not applying to 
"pure" distance sales. 
The Unfair Contract Terms Act 1977 restricts the effectiveness of 
contract terms which seek to exclude or limit liability for breach of 
contract or negligence. Liability for personal injury or death caused 
by negligence can never be excluded and liability for other loss 
similarly caused can only be excluded if it is reasonable to do so. A 
supplier who deals under standard written contract terms is not 
entitled to restrict or exclude liability for breach of terms, for 
example, by changing the mode of performance of the contract in a 
distance sales transaction. 
Advertising as an important feature of distance selling is regulated 
both by legislation and codes of practice. The Trade Descriptions Act 
1968 renders it an offence of strict liability in the course of a trade 
or business to apply a materially false trade description to goods. The 
Consumer Protection Act.1987 prohibits misleading price indications in 
advertisements and requires consumers to be provided with the aggregate 
sum required to be paid by them including ail ancillary charges. 
Codes of Practice in this area such as the British Code of Advertising 
Practice 1988 contain a general rule that advertisements should be 
legal, decent, honest and truthful as well as non-exploitative of 
consumers' lack of knowledge and experience. The British Code of Sales 
Promotion Practice 1990 applies the same rule to promotional goods. 
The consumer is required to be given accurate details of price, 
quality, and terms of business, as well as facilities to enquire and 
inspect goods. 
Direct marketing by mail and telephone are two particularly common 
methods of distance selling in the UK. The Unsolicited Goods & Services 
Acts 1971 and 1975 provide that a person who receives unsolicited goods 
can treat them as an unconditional gift at the expiration of six months 
from their receipt when the seller has made no attempt to retrieve 
them, or when a period of 30 days has expired from the date on which 
the consumer notified the supplier that they are unsolicited goods. It 
is a criminal offence to demand payment for such goods. The relevant 
codes of practice require mailing lists to be accurate, up-to-date, and 
- 69 -
confidential. A mailing preference service exists whereby members of 
the public can submit personal applications indicating their wish to be 
included or excluded from current mailing lists. This "MPS Consumer 
File" is maintained and applied by members of the service to all 
consumer lists. Those persons who wish to have their names excluded are 
placed on a suppression list as opposed to having their names deleted 
ent irely. 
There is little provision in UK law regulating the marketing of goods 
and services through unsolicited telephone calls except in the area of 
the financial services industry. Under § 56 Financial Services Act 
1986, there are restrictions amounting in effect to a ban on cold 
calling whether by telephone or personal visit. Investment agreements 
made as a result of such solicitations are rendered unenforceable, but 
there are exceptions to the rule. The Branch Systems General Licence 
Condit ions under which private telephone systems operate in the UK 
provide that a subscriber must comply with a written request from a 
person who wishes not to receive further marketing calls. 
No telephone preference service as yet exists but it is being actively 
considered by the industry at present. The direct marketing industry's 
codes of practice have provisions regarding telephone marketing to the 
effect that calls should be honestly made and within reasonable hours, 
that no high pressure sales tactics should be used nor should 
solicitation occur under the guise of a survey or research. The 
identity of the caller and purpose of the call should be made clear and 
a seven-day cooling-off period should apply to oral contracts formed in 
this manner. The recipient of the call should be entitled to terminate 
the call at any point. 
The issue of payments in distance sales transactions has also been the 
subject of self-regulatory control. In the UK, there has been a 
considerable increase in the use of credit cards and direct debit 
payment cards. The Mail-Order Protection Scheme Code of Practice 
prohibits "forward trading", that is, the use of prepayments to finance 
other orders received. The scheme may require from advertisers an 
indemnity in the form of a stakeholders account until the goods are 
dispatched, or a bank guarantee. The scheme also offers an indemnity to 
consumers who lose their money through the insolvency of the seller and 
where the advertisement required payment in advance. In relation to 
payment by credit card, such method of payment creates a three-way 
contract between consumer, supplier and card issuer: under 575 
Consumer Credit Act 1974. a consumer can equally claim against the card 
issuer in the event of a breach of contract, which is particularly 
useful in the case of the suppliers' insolvency. However, liability in 
such a case is limited to cases where each single item exceeds £ 100. 
- 70 -
The general rule at common law regarding delivery of goods is that 
unless a time is agreed upon in the contract, there is an implied term 
that delivery should take place within a reasonable time. The Mail 
Order Protection Scheme requires advertisers to state the delivery 
period, which should not exceed 28 days, and that in the case of undue 
delay, the consumer should be notified of this fact and be given the 
right to cancel the contract. Risk of damage or loss of goods should 
usually rest on the seller according to the Mail Order Traders' 
Association Code of Practice. 
Various mechanisms exist for the handling of complaints by consumers 
relating to distance selling. Formal litigation is possible immediately 
but the contracts may provide that settlement by arbitration or 
otherwise must first be attempted. The Consumer Arbitration Agreements 
Act 1988 provides that an arbitration agreement is enforceable only If 
the consumer agrees to submit to arbitration after the dispute has 
arisen. Usually disputes are adjudicated in the County Courts. Claims 
with a value of less than £ 1 000 fall within the Jurisdiction of the 
Small Claims Court, which operates informal procedures. 
Generally, the industry's codes of practice contain provisions for the 
independent investigation of complaints of breaches of codes of 
practice. The advertiser will usually be asked to amend, or withdraw 
the offending advertisement. Formal reprimands may be issued and, 
ultimately, a member expelled. 
- 71 -
Proposal for a 
COUNCIL DIRECTIVE 
on the protection of consumers in respect of contracts 
negotiated at a distance (distance selling) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European Economic 
Community, and in particular Article 100a thereof, 
Having regard to the proposal from the Commission1, 
In cooperation with the European Parliament2, 
Having regard to the opinion of the Economic and Social Committee3, 
1. Whereas measures must be taken for the gradual establishment of the 
internal market by 31 December 1992; whereas the internal market is to 
be an area without internal frontiers within which the free movement of 
goods, persons, services and capital is assured; 
2. Whereas cross-frontier distance selling could be one of the main 
tangible results of the completion of the internal market for 
consumers, as noted inter alia in the Communication from the Commission 
entitled "Towards a single market in distribution"4; 
3. Whereas the development of new technologies is multiplying the 
means available to consumers to have knowledge of the offers being made 
everywhere in the Community and for placing orders-, whereas there is a 
need to introduce a minimum set of common rules, before each Member 
State takes different or diverging measures to protect consumers, with 
negative repercussions on competition between businesses in the single 
market; 
1 
2 
3 
4 COM(91) 41, 11.3.1991 
- 72 -
4. Whereas paragraphs 18 and 19 of the Annex to the Council Resolution 
of 14 April 1975 on a preliminary programme of the European Economic 
Community for a consumer protection and information policy5 point to 
the need to protect the purchasers of goods or services against demands 
for payment for unsolicited goods and against high-pressure selling 
methods; 
5. Whereas the Communication from the Commission to the Council 
entitled "A new impetus for consumer protection policy" and approved by 
the Council Resolution of 23 June 19866 states in paragraph 33 that 
the Commission will present proposals regarding the use of new 
information technologies enabling consumers to place orders with 
suppliers from their homes; 
6. Whereas the Council Resolution of 9 November 1989 on future 
priorities for relaunching consumer protection policy7 calls upon the 
Commission to give priority to the areas referred to in the Annex to 
the Resolution; whereas that Annex refers to "new technologies 
involving teleshopping"; whereas the Commission has responded to this 
Resolution by adopting a three-year action plan for consumer protection 
policy in the EEC (1990-92)8; and whereas that plan provides for the 
adoption of a Directive; 
7. Whereas contracts negotiated at a distance involve the use of one 
or more means of communication at a distance and whereas the ongoing 
evolution of these means of communication does not allow an exhaustive 
list to be compiled but requires the definition of principles valid 
even for those that are still little used; whereas it is necessary to 
establish clearly the difference between advertising and solicitation; 
whereas there is solicitation from the time the consumer possesses the 
elements necessary to contract; 
5 OJ No C 92, 25.4.1975, p. 1. 
6 OJ No C 167, 5.7.1986, p. 1. 
7 0J No C 294, 22.11.1989, p. 1. 
8 COM(90) 98, 3.5.1990. 
- 73 -
8. Whereas the principles set out in Articles 8 and 10 of the European 
Convention for the Protection of Human Rights and Fundamental Freedoms 
of 4 November 1950 apply; whereas all matters relating to the 
collection, storage and processing of personal data fall under Council 
Directives No ... and No ... of [on the protection of 
individuals in relation to the processing of personal data and the 
protection of privacy]9; whereas the consumer's right to freedom from 
intrusion should be recognized and provision made for possible 
restrictions on the use of certain means of communication and in 
particular restrictions deriving from the above Directives; 
9. Whereas the consumer's custom is solicited via a variety of means 
of communication; whereas such solicitations must be clearly identified 
as commercial propositions; whereas this information must comply with 
the other relevant Community rules, in particular Council 
Directive 84/450/EEC of 10 September 1984 relating to the approximation 
of the laws, regulations and administrative provisions of the Member 
States concerning misleading advertising10; 
10. Whereas the use of such technologies must not lead to a reduction 
in the information provided to the consumer; whereas It is therefore 
necessary to determine the information that is required to be sent to 
the consumer whatever the means of communication used; 
11. Whereas the promotional technique involving the sending of a 
product or the provision of a service to the consumer in return for 
payment may not be permitted without a prior request from or the 
explicit agreement of the consumer; 
Whereas it is necessary to prescribe a time limit for performance if 
this is not specified at the time of ordering; 
9 
10 OJ No L 250, 19.9.1984, p. 17. 
- 74 -
12. Whereas information disseminated by certain electronic technologies 
often has an ephemeral character insofar as it is not received on a 
permanent medium; whereas the consumer must therefore receive written 
notice of the content of the contract and of all Information necessary 
to its proper performance, not later than at the time of the delivery 
of the good or the supply of the service; 
13. Whereas the consumer is not able to see in concreto the product or 
ascertain the service provided at the moment when his custom is 
solicited; whereas the consumer should be permitted to cancel the 
contract after receiving the product or service; whereas, if this right 
is to be more than formal, the costs borne by the consumer when making 
use of it must be limited to the charges for return; whereas Council 
Directive 85/577/EEC of 20 December 1985 to protect the consumer in 
respect of contracts negotiated away from business premises11 is to be 
amended later to ensure harmonization, in particular of the method for 
calculating the period during which the contract may be cancelled; 
14. Whereas this Directive should not prejudice the free movement of 
radio and television broadcasts, as guaranteed by Articles 59 and 60, 
third paragraph, of the EEC Treaty, nor the application of the rules 
of Council Directive 89/552/EEC of 3 October 1989 on the coordination 
of certain provisions laid down by law, regulation or administrative 
action in Member States, concerning the pursuit of television 
broadcasting activities12; 
15. Whereas non-compliance with this Directive may harm not .only 
numerous consumers but also competitors; whereas there is therefore a 
need for provisions permitting trade and consumer organizations to 
monitor its application in transborder transactions; whereas to the 
extent authorized by the legislation of the Member States concerned, 
these organizations should also be allowed to act in the State from 
where the conflict originates, 
11 0J No L 372, 31.12.1985, p. 31. 
12 0J No L 298, 17.10.1989, p. 23. 
- 75 -
HAS ADOPTED THIS DIRECTIVE 
Article 1 
Object 
The object of this Directive is to approximate the laws, regulations 
and administrative provisions of the Member States concerning contracts 
negotiated at a distance between consumers and suppliers and the 
soliciting of custom and preparatory acts with a view to such 
contracts. 
Art icle 2 
Def ini t ions 
For the purposes of this Directive: 
"Contract negotiated at a distance" means any contract concerning a 
product or service concluded after solicitation of custom by the 
supplier: 
without the supplier and the consumer being simultaneously 
present and 
using a means of communication at a distance to convey the 
contract solicitation and the order. 
This concept does not include arrangements, orders, agreements or 
individual acts of performance within an overall contract, in 
particular a contract to be performed by a series of separate 
operations over a period of time. 
- 76 -
"Consumer" means a natural person who, in transactions covered by 
this Directive, is acting for purposes which can be regarded as 
outside his trade or profession. 
"SUPDIier" means a natural or legal person who, for the transaction 
in question, acts in his commercial or professional capacity, and 
anyone acting in the name or on behalf of a supplier. 
"Means of communication at a distance" means any method permitting 
the exchange of the information required for the negotiation and 
conclusion of a contract between a consumer and a supplier not in 
the presence of one another; a non-exhaustive list of the means 
covered by this Directive is contained in Annex 1. 
"Operator of a means of communication" means any public or private 
natural or legal person making the various means of communication 
at a distance available to suppliers and/or consumers. 
"Contract solicitation" means any communication at a distance 
including all the necessary elements to enable the recipient to 
enter directly into a contractual commitment, simple advertising 
being excluded. 
"Order" means the expression by the consumer of his intention to 
enter into a contractual commitment. 
- 77 -
Article 3 
Exempt ions 
This Directive shall not apply to: 
automatic vending machines, 
automated commercial premises, 
- made-to-measure products, 
services with reservation (a list of the services in question 
is attached as Annex 2), 
contracts for the supply of: 
foodstuffs, beverages or other goods intended for current 
consumption in the household; 
services for current consumption; 
Article 4 
Restrictions on the use of certain means 
of communication at a distance 
Member States shall take the necessary measures to ensure that means of 
communication at a distance are used to solicit custom from consumers 
only under conditions of fair competition and with due regard for the 
consumer's privacy, particularly pursuant to Article 17 of Directive 
../../... [concerning the protection of individuals in relation to the 
processing of personal data and privacy in the context of the public 
digital telecommunications networks]. 
Article 5 
Presentation 
(1) Member States shall take the necessary measures to ensure that all 
contract solicitations shall be designed and presented in such a 
way as to comply with the principles of good faith in commercial 
transactions, and those for the protection of minors. 
- 78 -
(2) All contract solicitations shall make their commercial purpose 
clear. 
(3) Where the cost of using a means of communication at a distance to 
place the order or perform the service must be borne by the 
consumer, he shall be informed of this fact if it is not evident. 
Art icle 6 
Content of contract solicitations 
At the time when his custom is solicited, the consumer shall be 
provided with clear and unambiguous information in any way appropriate 
to the means of communication, comprising in particular: 
the identity of the supplier; 
the main characteristics of the product or service; 
the price and quantity of any transport charges if not included; 
the payment, delivery and performance arrangements; 
the period for which the solicitation remains valid. 
Art icle 7 
Contract solicitation by television 
In the case of solicitation by television: 
the presentation within the meaning of Article 5 of this Directive 
must exclusively observe the provisions relating to the protection 
of minors in Article 22 of Directive 89/552/EEC; 
the supplier must ensure that the information set out in Article 6 
is conveyed in writing no later than the moment when direct contact 
is made between the supplier and the consumer. 
- 79 -
Art icle 8 
Inert ia selIing 
(1) Member States shall take appropriate steps to ensure that consumers 
are not supplied with products or services which they have not 
ordered beforehand and asked either to purchase them or to return 
them, even at no cost. 
(2) These steps shall at least include a provision to the effect that 
if products or services have been so supplied the consumer shall 
have the right to do as he pleases with them unless there has been 
an obvious mistake, in which case he shall merely hold them at the 
disposal of the supplier for a reasonable period and provided 
their nature so permits. 
(3) Failure to reply shall not constitute consent. 
(4) This Article shall not apply to the sending of samples or 
promotional gifts provided it is made clear that they are 
completely free of charge with no obligation for the consumer. 
Art icle 9 
Performance 
If no time limit for performance is stipulated in the contract 
solicitation, the order shall be performed not more than thirty days 
after it is received by the supplier. 
Article 10 
Information on the content of the contract 
(1) Not later than at the time of delivery, the consumer shall receive 
the following information in writing and in the language used in 
the contract solicitation: 
- 80 -
the identity of the supplier and the address of one of his 
places of business; 
main features of the product or service; 
price and quantity; 
payment arrangements, including credit terms, or terms for 
payment by instalments; 
right of withdrawal within the meaning of Article 11; 
arrangements for exercising this right. 
Where a contract is open-ended, and in particular if it is to be 
performed by means of repeated operations, the conditions under 
which it can be terminated must be indicated. 
(2) Paragraph 1 shall not apply to services supplied directly by 
telematic means, precisely the performance of which is effected by 
the use of means of communication at a distance, when they are 
supplied only on one occasion. Nevertheless, the operator of a 
technique of communication shall be obliged to indicate to the 
consumer, on demand, the location of the supplier. 
Article 11 
Right of withdrawal 
(1) For any contract negotiated at a distance, the consumer shall have 
a period of not less than seven days starting from the receipt of 
the product or service in which he may cancel the contract without 
penalty. The only costs payable shall be the direct return 
charges, if appropriate. 
For services, this period shall begin when the consumer receives 
documentation expressing the explicit agreement of the supplier. 
- 81 
(2) The consumer must be able to provide a document as evidence of 
return. 
(3) Where a product or service is purchased on credit, Member States 
shall provide for cancellation of credit agreements concluded with 
the supplier when the right of return is exercised; if the credit 
has not been provided directly by the supplier, Article 11 of 
Council Directive 87/102/EEC13 on consumer credit shall apply. 
(4) The present Article shall not apply to: 
services, if an essential part of performance is begun or 
should have begun before the end of the seven day period; 
transactions concerning securities and other products or 
services the price of which is dependent on fluctuations in the 
financial market which cannot be controlled by the supplier; 
contracts concluded in the form of an authenticated document; 
unless otherwise stipulated, to products: 
which can be immediately reproduced; 
for personal hygiene; 
which by reason of their nature cannot be returned. 
Article 12 
Payment by card 
If the owner of a payment card questions the validity of any operation 
in which the number of the card has been recorded without presentation 
or electronic identification of the means of payment, the operation 
shall thereby be cancelled. The supplier's bank account shall then be 
debited and the owner's account shall be recredited as quickly as 
possible, without prejudice to any claim for damages in the event of an 
operation's being disputed improperly. 
13 OJ No L 42, 12.2.1987, p. 48 
- 82 -
Article 13 
Judicial or administrative redress 
(1) Member States shall ensure that adequate and effective means exist 
to enforce compliance with this Directive in the interests of 
consumers and competitors. 
(2) To this end, Member States shall make provision, among others, for 
trade and consumer organizations which can, according to their 
national legislation, demonstrate a legitimate interest in the 
matter, to be entitled, if it is recognized by the Member State of 
the conflict, to take legal action and/or bring complaints before a 
competent administrative body. 
(3) Member States shall, as necessary, empower the courts and/or 
administrative authorities, in the event of litigation, to require 
the supplier to provide proof, in particular of the content of the 
solicitation, the existence of a prior request, the consumer's 
consent and compliance with time limits. 
(4) This Directive shall not exclude voluntary supervision of 
compliance with its provisions by self-regulatory bodies and 
recourse to such bodies by the persons or organizations referred to 
in paragraph 2, if procedures involving such bodies exist in 
addition to the court or administrative procedures referred \f> in 
this Art icle. 
Article 14 
Binding nature 
The consumer may not waive the rights conferred on him by this 
Direct ive. 
- 83 -
Article 15 
Community rules 
Nothing in this Directive shall preclude the application of provisions 
specific to techniques, products or services under other Community 
instruments. 
Article 16 
Implementat ion 
Member States shall bring into force the laws, regulations and 
administrative provisions necessary to comply with this Directive not 
later than 31 December 1994. 
When Member States adopt these measures, these shall contain a 
reference to this Directive or shall be accompanied by such reference 
on the occasion of their official publication. The procedure for such 
reference shall be laid down by Member States. 
Member States shall communicate to the Commission the text of the 
provisions of national law which they adopt in the field governed by 
this Direct ive. 
Article 17 
This Directive is addressed to the Member States 
Done at Brussels, For the Council 
The President 
- 84 -
ANNEX 1 
Examples of means of communication at a distance covered by this 
Direct ive: 
unaddressed printed matter 
addressed printed matter 
standard letter 
press advertising with order form 
catalogue 
telephone with human intervention 
telephone without human intervention (automatic calling machine, 
audiotext) 
radio 
videophone (telephone with screen) 
videotex (microcomputer and television screen, with keyboard or 
touch screen) 
electronic ma iI 
fax (facsimile machine) 
television (teleshopping) 
- 85 -
ANNEX 2 
Services with reservation within the meaning of Article 3 
transport; 
accommodat ion; 
cater ing-, 
entertainment. 
- 86 -
IMPACT ASSFFfMEwr TTBM 
THE IMPACT OF THE PROPOSAL ON BUSINESS 
with special reference to small and medium-sized 
enterprises (SMEs) 
Title of proposal: Protection of consumers In respect of contracts 
negotiated at a distance (distance selling) 
Reference number: SPC/171/91 Rev. 4 
The proposal 
1. Taking account of the principle of subsidiarity, why is Community 
legislation necessary in this area and what are its main alms? 
Traditional mail-order selling involves the use of a catalogue to 
present the products and a letter to order them. The proliferation 
of new technologies (telephone, television, computer) has 
completely transformed this activity, which will in future 
increasingly be conducted on a cross-frontier basis. It is 
necessary to establish a minimum Community base before each Member 
State adopts its own legislation, which might hinder the 
functioning of the internal market. 
The Communication "Towards a single market in distribution has 
already stated (p.17): 
"Because of the multinational character of the market the principle 
of subsidiarity may lead to the conclusion that if some sort of 
regulatory framework is needed, then it should from the outset be 
at Community level." 
- 87 -
In this communication , the Commission advocates the development of 
self-regulatory systems provided they are accepted by all parties 
concerned. Consequently, the proposal for a directive is 
accompanied by a Recommendation which is specifically aimed at 
establishing codes of practice. 
The main aims are to ensure legal safeguards for the consumer and 
his right of choice in contracts negotiated at a distance. 
The impact on business 
2. Who will be affected by the proposal? 
Firms which market products and services using means of 
communication at a distance and the operators of such means of 
commun i cat ion. 
Traditional mail-order selling is carried out by a fairly limited 
number of firms. New technologies could give rise to the creation 
of new firms specialised in certain of these techniques 
(television, Minitel) or enable small producers to market their 
products directly (particularly by home delivery). 
3. What will businesses have to do to comply with the proposal? 
Six Member States already have general laws covering all forms of 
distance selling (Portugal, Greece, Denmark, Belgium, Luxembourg 
and France). 
In the other Member States, there are provisions giving partial 
coverage. 
The provisions of the present text mirror provisions contained in 
national laws. In certain Member States, some of these provisions 
or similar provisions are found in the codes of conduct of trade 
associations. These codes apply only to the members of the 
associat ions. 
- 88 -
The directive fixes certain minimum conditions regarding the 
presentation, the content of a solicitation and the written 
information on the contract which must follow. The directive fixes 
the period for delivery at 30 days, unless otherwise agreed, and 
provides for a period of at least 7 days within which the right of 
withdrawal may be exercised. The directive also provides that 
professional and consumer organisations will, if it is allowed by 
the Member State of the conflict be able to take legal action to 
ensure the correct implementation of the directive, and that the 
reversal of the burden of proof will be possible in appropriate 
cases. 
4. What economic effects is the proposal likely to have? 
- on employment 
- on investment and creation of new businesses 
- on the competitive position of businesses 
The text establishes Community rules which will have particular 
effects on the use of new technologies in distance selling. This 
may lead to these techniques being used more often by consumers in 
the internal market and consequently may have the effect of 
increasing employment and investment in these activities. The 
transborder possibilities may lead to an intensified 
competitiveness in retail business. 
5. Does the proposal contain measures to take account of the specific 
situation of small and medium-sized firms (reduced or different 
requirements etc.)? 
There is no differentiation according to the size of the business. 
However, some activities which are excluded from the scope of the 
directives' application, particularly the supply of day-to-day 
household goods and services, are usually engaged in by small 
businesses. 
- 89 -
Consultation 
6. List the organisations which were consulted about the proposal and 
outline their main views. 
In April 1991 a discussion document was drawn up under the title 
"Discussion paper for a Directive on distance selling". This text 
was disseminated by two channels : 
to the trade, via the Committee on Commerce and Distribution, a 
consultative body which advises DG XXIII; 
to consumers, via the Consumers' Consultative Council, which 
advises the Consumer Policy Service. 
In the light of all the comments received, a preliminary draft 
proposal was drawn up in July 1991. This text was disseminated 
through the same channels. 
In its opinion of 13 September 1991 on the discussion paper, the 
Committee of Commerce and Distribution argued that the text should 
be either a recommendation or a : 
"(limited) framework Directive leaving sufficient room for traders 
and their professional associations to work out self-regulatory 
provisions". 
The CCD in it's opinion of 16 January 1992 based on the draft 
proposal for a directive of July 1991, criticised several articles 
and stated clearly that : 
" the CCD is not convinced about the need for such an ail 
embracing directive ... and rejects the Commission's 
arguments". 
90 -
Several professional associations, including CECD/FEWITA/GEDIS, 
Eurochambres, European Association of Mail order and the Liaison 
Committee of Retail Trade Associations expressed themselves as not 
being in favour of the proposed directive, based on the texts 
presented during the second half of 1991. This was also the 
opinion of the other professional associations in the trade sector 
and of individual trade firms, particularly those In distance 
selling, who maintained that the provisions of the text should 
simply be contained in codes of practice. 
The SPC received about 50 opinions on the two documents (Discussion 
Document and Draft Directive, 1991 versions). These opinions came 
from consumer associations, professional associations other than 
those involved in distance selling, different operators of means of 
communication (televisions, newspapers, etc.), the banks and firms 
in the tourism sector. 
The large majority of those opinions recognised the necessity of 
community action in the matter of contracts negotiated at a 
distance and were not totally opposed to the draft directive. The 
principle criticism rested on the financial safeguard systems 
(guarantee funds), a subject which is now dealt with by the 
recommendat ion. 
Taking account of the discussions and comments, following the 
distribution of the first draft of July 1991, the Commission also 
presents the text of a recommendation, which is intended to promote 
codes of practice in the matter of distance selling and indicate 
the points which can be dealt with by these codes. 



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