COMMON POSITION (EC) No 19/95 adopted by the Council on 29 June 1995 with a view to adopting Directive 95/ /EC of the European Parliament and of the Council of . . . on the protection of consumers in respect of distance contracts (95/C 288/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

1. Whereas, in connection with the attainment of the aims of the internal market, measures must be taken for the gradual consolidation of that market;

2. Whereas the free movement of goods and services affects not only the business sector but also private individuals; whereas it means that consumers should be able to have access to the goods and services of a Member State on the same terms as the population of that State;

3. Whereas cross-border 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 Commission communication to the Council entitled 'Towards a single market in distribution'; whereas it is indispensable for the proper functioning of the internal market that consumers should be able to apply to a business outside their country, even if it has a subsidiary in the consumer's country of residence;

4. Whereas the introduction of new technologies is multiplying the means available to consumers to have knowledge of the offers being made everywhere in the Community and to place orders; whereas some Member States have already taken different or diverging measures to protect consumers in respect of distance selling, with negative repercussions for competition between businesses in the single market; whereas it is therefore necessary to introduce a minimum set of common rules at Community level in this field;

5. 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 policy (4) 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;

6. Whereas paragraph 33 of the Commission communication to the Council entitled 'A new impetus for consumer protection policy', approved by the Council resolution of 23 June 1986 (5), states that the Commission will present proposals regarding the use of new information technologies enabling consumers to place orders with suppliers from their homes;

7. Whereas the Council resolution of 9 November 1989 on future priorities for relaunching consumer protection policy (6) calls upon the Commission to give priority to the areas referred to in the Annex to that resolution; whereas that Annex refers to new technologies involving teleshopping; whereas the Commission has responded to that resolution by adopting a three-year action plan for consumer protection policy in the European Economic Community (1990 to 1992); whereas that plan provides for the adoption of a Directive;

8. Whereas the languages used for distance contracts are a matter for the Member States;

9. Whereas contracts negotiated at a distance involve the use of one or more means of communication at a distance; whereas the various means of communication are used as part of an organized distance sales or service-provision scheme not involving the simultaneous presence of the supplier and the consumer; whereas the ongoing evolution of those 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;

10. Whereas the use of such means of communication 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; whereas the information supplied must also comply with the other relevant Community rules, in particular those in 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 advertising (7);

11. Whereas information disseminated by certain electronic technologies often has an ephemeral character in so far as it is not received on a permanent medium; whereas the consumer must therefore receive written notice in good time of the information necessary for proper performance of the contract;

12. Whereas the consumer is not able in concrete terms to see the product or ascertain the service provided before concluding the contract; whereas provision should be made, where it is appropriate, for a right to withdraw from the contract; whereas it is for the Member States to determine the other conditions and arrangements following exercise of the right of withdrawal;

13. Whereas it is also necessary to prescribe a time limit for performance if this is not specified at the time of ordering;

14. Whereas the promotional technique involving the sending of a product or the provision of a service to the consumer in return for payment without a prior request from or the explicit agreement of the consumer cannot be permitted - unless what it involved is a replacement;

15. 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 the consumer's right to privacy, particularly as regards freedom from intrusion by certain particularly intrusive means of communication should be recognized; whereas specific limits on the use of such means should therefore be stipulated;

16. Whereas Commission recommendation 92/295/EEC of 7 April 1992 on codes of practice for the protection of consumers in respect of contracts negotiated at a distance (8) stipulates that it is desirable that the minimum binding rules contained in this Directive should be supplemented by voluntary self-regulatory arrangements in the form of codes of practice;

17. Whereas non-compliance with this Directive may harm not only consumers but also competitors; whereas provisions may therefore be laid down permitting public bodies, or their representatives, or consumer organizations which, under national legislation, have a legitimate interest in consumer protection, or professional organizations which have a legitimate interest in taking action, to monitor its application;

18. Whereas in the use of new technologies the consumer is not in control of the means of communication used; whereas it is therefore necessary to provide that the burden of proof may be on the supplier;

19. Whereas there is a risk that, in certain cases, the consumer may be deprived of protection under this Directive through designation of the law of a non-member country as the law applicable to the contract; whereas provisions should therefore be included in this Directive to avert that risk;

20. Whereas a Member State may ban, in the general interest, the marketing on its territory of certain goods and services through distance contracts; whereas that ban must comply with Community rules; whereas there is already provision for such bans, notably with regard to medicinal products, under 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 activities (9) and Council Directive 92/28/EEC of 31 March 1992 on the advertising of medicinal products for human use (10),

HAVE 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 distance contracts between consumers and suppliers.

Article 2

Definitions

For the purposes of this Directive:

1. 'distance contract' means any contract concerning goods or services concluded between a supplier and a consumer as a consequence of an organized distance sales or service-provision scheme of the supplier, using, for this contract, exclusively one or more means of communication at a distance up to the conclusion of the contract and including the conclusion on the contract itself;

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

3. 'supplier' means any natural or legal person who, in contracts covered by this Directive, is acting in his commercial or professional capacity;

4. 'means of communication at a distance' means any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the purposes of the conclusion of a contract between those parties. An indicative list of the means covered by this Directive is contained in Annex I;

5. 'operator of a means of communication' means any public or private natural or legal person whose trade, business or profession involves making one or more means of communication at a distance available to suppliers.

Article 3

Exemptions

1. This Directive shall not apply to contracts:

- relating to financial services, a non-exhaustive list of which is given in Annex II,

- concluded by means of automatic vending machines or automated commercial premises,

- concluded with telecommunications operators through the use of public pay-phones;

- concluded for the construction and sale of immovable property or relating to other immovable property rights, except for rental,

- concluded at an auction.

2. Articles 4, 5, 6 and Article 7 (1) and (2) shall not apply:

- to contracts for the supply of foodstuffs, beverages or other goods intended for current consumption supplied to the home of the consumer, to his residence or to his workplace by regular roundsmen,

- contracts for the provision of services with respect to accommodation, transport, catering or leisure, where the supplier undertakes, when the contract is concluded, to provide these services at a specific date or within a specific period.

Article 4

Prior information

1. In good time prior to the conclusion of any distance contract, the consumer shall be provided with the following information:

(a) the identity of the supplier;

(b) the main characteristics of the goods or services;

(c) the price of the goods or services including all taxes;

(d) delivery costs, where appropriate;

(e) the arrangements for payment, delivery or performance;

(f) the existence of a right of withdrawal, except in the cases referred to in Article 6 (3);

(g) the cost of using the means of communication at a distance, where it is calculated at other than the basic rate;

(h) the period for which the offer or the price remains valid.

2. The information referred to in paragraph 1, the commercial purpose of which must be made clear, shall be provided in a clear and comprehensible manner in any way appropriate to the means of communication at a distance used, with due regard, in particular, to the principles of good faith in commercial transactions and those governing the protection of minors.

Article 5

Written confirmation of information

1. The consumer must receive written confirmation of the information referred to in Article 4 (1) (a) to (f), in good time during the performance of the contract and at the latest at the time of delivery, where goods are concerned, unless the information has already been given to the consumer prior to conclusion of the contract in writing or on another durable medium available to him.

In any event the following must be provided:

- written information on the conditions and procedures for exercising the right of withdrawal, within the meaning of Article 6, including the cases referred to in the first indent of Article 6 (3),

- the geographical address of the place of business of the supplier to which the consumer may address any complaints,

- information on after-sales services and guarantees which exist,

- the conditions for cancelling the contract, where it is of unspecified duration or a duration longer than one year.

2. Paragraph 1 shall not apply to services the performance of which is effected by the use of a means of communication at a distance, when they are supplied on only one occasion and are invoiced by the operator of the means of communication at a distance. Nevertheless, the consumer must in all cases be able to obtain the geographical address of the place of business of the supplier to which he may address any complaints.

Article 6

Right of withdrawal

1. For any distance contract the consumer shall have a period of not less than seven days in which he may withdraw from the contract without penalty, without giving any reason.

The period for exercise of this right shall begin:

- for goods, from the day of receipt by the consumer where the obligations laid down in Article 5 have been fulfilled,

- for services, from the day of conclusion of the contract or from the day on which the obligations laid down in Article 5 were fulfilled if they are fulfilled after conclusion of the contract, on condition that this period does not exceed the three-month period referred to in the following subparagraph.

If the supplier has failed to fulfil the obligations laid down in Article 5, the period shall be three months. The period shall begin:

- for goods, from the day of receipt by the consumer,

- for services, from the day of conclusion of the contract.

If the information referred to in Article 5 is supplied within this three-month period, the consumer shall from that moment have available the seven-day period referred to in the first paragraph.

2. Where the right of withdrawal has been exercised by the consumer pursuant to this Article, the supplier shall be obliged to reimburse the sums paid by the consumer. Such reimbursement must be carried out as soon as possible.

3. Unless the parties have agreed otherwise, the consumer may not exercise the right of withdrawal provided for in paragraph 1 in respect of contracts:

- for the provision of services, if performance has begun, with the consumer's agreement, before the end of the seven-day period referred to in paragraph 1,

- for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier,

- for the supply of goods made to measure to the consumer's specifications or clearly personalized or which, by reason of their nature, cannot be returned, or are liable to deteriorate or expire rapidly,

- for the supply of audio or video recordings, records or computer software,

- for the supply of newspapers, periodicals and magazines,

- for gaming and lottery services.

4. The Member States shall make provision in their legislation to ensure that:

- if the price of goods or services is fully or partly covered by credit granted by the supplier,

or

- if that price is fully or partly covered by credit granted to the consumer by a third party on the basis of an agreement between the third party and the supplier,

the credit agreement shall be cancelled, without any penalty, if the consumer exercises his right to withdraw from the contract in accordance with paragraph 1.

Member States shall determine the detailed rules for cancellation of the credit agreement.

Article 7

Performance

1. Unless the parties have agreed otherwise, the supplier must execute the order within a maximum of 30 days from the day following that on which the consumer forwarded his order to the supplier.

2. Where a supplier fails to perform his side of the contract on the grounds that the goods or services ordered are unavailable, the consumer must be informed of this situation and must be able to obtain a refund of any sums he has paid as soon as possible.

3. Nevertheless Member States may lay down that the supplier may provide the consumer with goods or services of equivalent quality and price provided this possibility was provided for prior to conclusion of the contract or when the contract was concluded or when the consumer was informed of the unavailability of his order. The cost of returning the goods following exercise of the right of withdrawal is, in this case, the liability of the supplier, and the consumer must be informed of this. In such cases the supply of goods or services may not be deemed to constitute inertia selling within the meaning of Article 9.

Article 8

Payment by card

Member States shall ensure that appropriate measures exist to allow a consumer:

- to request cancellation of a payment where fraudulent use has been made of his payment card within the context of distance contracts covered by this Directive,

- in the event of fraudulent use, to be recredited with the sums paid or have them returned.

Article 9

Inertia selling

Member States shall take the measures necessary to:

- prohibit the supply of goods or services to a consumer without being ordered by the consumer beforehand, where such supply involves a demand for payment,

- exempt the consumer from the performance of any consideration in cases of unsolicited supply, the absence of a response not constituting consent.

Article 10

Restrictions on the use of certain means of communication at a distance

1. Use by a supplier of the following means requires the prior consent of the consumer:

- automated calling system without human intervention (automatic calling machine),

- facsimile machine (fax).

2. Member States shall ensure that means of communication at a distance, other than those referred to in paragraph 1, which allow individual communications may be used only where there is no clear objection from the consumer.

Article 11

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.

2. The means referred to in paragraph 1 may include provisions whereby public bodies or their representatives or consumer organizations having a legitimate interest under national law in protecting consumers or professional organizations having a legitimate interest may take action under national law before the courts or before the competent administrative bodies to ensure that the provisions of this Directive are applied.

3. (a) Member States may stipulate that the burden of proof concerning the existence of prior information, written confirmation or compliance with time-limits or the consumer's consent can be placed on the supplier.

(b) Member States shall take the measures necessary to ensure that suppliers and operators of means of communication, when they are able to do so, cease practices which do not comply with measures adopted pursuant to this Directive.

4. Member States may provide that voluntary supervision of compliance with the provisions of this Directive entrusted to self-regulatory bodies and recourse to such bodies to settle disputes are added to the means which Member States must provide to ensure compliance with the provisions of this Directive.

Article 12

Binding nature

1. The consumer may not waive the rights conferred on him by the transposition of this Directive into national law.

2. The Member States shall take the measures necessary to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-member country as the law applicable to the contract if the latter has a close connection with the territory of one or more Member States.

Article 13

Community rules

1. The provisions of this Directive shall apply in so far as there are no particular provisions in rules of Community law governing certain types of distance contracts in their entirety.

2. Where specific Community rules on goods or services contain provisions governing aspects connected with:

- information prior to conclusion of the contract,

- written confirmation of the prior information,

- right of withdrawal,

- inertia selling,

- judicial or administrative redress,

- restrictions on the use of means of communication at a distance,

- payment by card,

- performance of the contract,

such provisions shall apply solely to distance contracts in respect of the aspects covered.

Article 14

Minimal clause

Member States may introduce or maintain, in the area covered by this Directive, more stringent provisions compatible with the Treaty, to ensure a higher level of consumer protection. Such provisions shall, where appropriate, include the prohibition, in the general interest, of the marketing of certain goods or services, particularly medicinal products, in their territory by means of distance contracts, with due regard for the Treaty.

Article 15

Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than three years after it enters into force. They shall forthwith inform the Commission thereof.

2. When Member States adopt the measures referred to in paragraph 1, they 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.

3. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field governed by this Directive.

4. No later than six years after the entry into force of this Directive the Commission shall submit a report to the European Parliament and to the Council on the implementation of this Directive, accompanied if appropriate by a proposal for the revision of this Directive.

Article 16

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 17

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(1) OJ No C 156, 23. 6. 1992, p. 14.

(2) OJ No C 19, 25. 1. 1993, p. 111.

(3) Opinion of the European Parliament of 26 May 1993 (OJ No C 176, 26. 6. 1993, p. 95), Council common position of . . . (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No C 92, 25. 4. 1975, p. 1.

(5) OJ No C 167, 5. 7. 1986, p. 1.

(6) OJ No C 294, 22. 11. 1989, p. 1.

(7) OJ No L 250, 19. 9. 1984, p. 17.

(8) OJ No L 156, 10. 6. 1992, p. 21.

(9) OJ No L 298, 17. 10. 1989, p. 23.

(10) OJ No L 113, 30. 4. 1992, p. 13.

ANNEX I

Means of communication covered by Article 2, point 4

- 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 mail

- Facsimile machine (fax)

- Television (teleshopping)

ANNEX II

Financial services within the meaning of Article 3 (1)

- Investment services

- Insurance and reinsurance operations

- Banking services

- Operations relating to pension funds

- Services relating to dealings in futures or options

Such services include in particular:

- investment services referred to in the Annex to Directive 93/22/EEC (1); services of collective investment undertakings,

- services covered by the activities subject to mutual recognition referred to in the Annex to Directive 89/646/EEC (2),

- operations covered by the insurance activities referred to in:

- Article 1 of Directive 73/239/EEC (3),

- the Annex to Directive 79/267/EEC (4),

- Directive 64/225/EEC (5),

- Directives 92/49/EEC (6) and 92/96/EEC (7).

(1) OJ No L 141, 11. 6. 1993, p. 27.

(2) OJ No L 386, 30. 12. 1989, p. 1. Directive as amended by Directive 92/30/EEC (OJ No L 110, 28. 4. 1992, p. 52).

(3) OJ No L 228, 16. 8. 1973, p. 3. Directive as last amended by Directive 92/49/EEC (OJ No L 228, 11. 8. 1992, p. 1).

(4) OJ No L 63, 13. 3. 1979, p. 1. Directive as last amended by Directive 90/619/EEC (OJ No L 330, 29. 11. 1990, p. 50).

(5) OJ No L 56, 4. 4. 1964, p. 878. Directive as amended by the 1973 Act of Accession.

(6) OJ No L 228, 11. 8. 1992, p. 1.

(7) OJ No L 360, 9. 12. 1992, p. 1.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 21 May 1992 the Commission submitted a proposal (1) for a Directive, based on Article 100a of the Treaty, on the protection of consumers in respect of distance contracts.

2. The European Parliament delivered its first-reading opinion (2) on 26 May 1993. Further to that opinion, the Commission submitted an amended proposal (3) on 7 October 1993.

The Economic and Social Committee delivered its opinion (4) on 24 November 1993.

3. The Council unanimously adopted its common position, in accordance with Article 189b of the Treaty, on 29 June 1995.

II. OBJECTIVE

4. The purpose of the Commission proposal is to provide greater protection for consumers as regards distance contracts, particularly through better prior information on the features of the contract, through the introduction of a right of withdrawal and of means of judicial or administrative redress and through provisions governing performance of the contract. In this way the proposal contributes to the establishment of the internal market in this field.

III. ANALYSIS OF THE COMMON POSITION

General comments

5. With a view to the objective outlined above and in the light of the swiftly developing technology and markets addressed by this proposal, the Council set out to ensure a high level of consumer protection by means of a set of provisions that in some cases establish stronger safeguards than those envisaged by the Commission or the European Parliament and that are as precise and easy to implement as possible. The Council accordingly endeavoured to allow the principle of subsidiarity to operate to the extent compatible with the requisite harmonization in this sector and bearing in mind that Member States may adopt more stringent provisions. This desire for workable arrangements prompted the Council to drop the approach based on contract solicitation, which upon scrutiny proved unsuited to the specific manner in which distance contracts are established.

6. On the basis of the above guidelines the Council was able to incorporate into its common position word for word, in substance or in part those European Parliament amendments included by the Commission in its amended proposal - except for amendments 10, 13, 15, 20, 29 (and 6 concerning the related recital) and 32 (and 9 concerning the related recital) - as well as amendment 30, which was not taken up in the amended proposal.

7. Specific comments

(Unless otherwise indicated, references below are to the text of the amended proposal.)

In addition to the reordering of Articles in line with the successive stages leading up to the contract and its performance, the following amendments were made to the Commission's amended proposal by the Council and accepted by the Commission:

(i) The dropping of the approach based on contract solicitation (see point 5) made it necessary to adjust Articles 1, 2, first indent and sixth indent (deletion), 4, 5, 6, 10, 11 (1) and 14 (3) and to adjust the preamble accordingly.

Similarly, since means of communication can be used actually to conclude a contract, the term 'distance contract' should be used throughout the Directive and not just 'contract negotiated at a distance'.

(ii) Article 2

Apart from the above adjustments, the definitions have been rationalized so as to avoid repetition and to align on the phraseology used in Community legislation. The definition of an 'order' has been deleted, with the term being used here in its ordinary sense, that of an 'operator' now covers only persons making means of communication available to suppliers since they are the ones whose practices need to be regulated.

Split performance of a contract is not covered by the text and is therefore, in the absence of any provisions on it, left to national legislation (see amendment 11).

(iii) Article 3

The Council wanted to restrict the extent of the exemptions since only some of the provisions will not apply to contracts for the supply of goods for current consumption or of services 'with reservation' (in particular, as Parliament wished, the right of withdrawal is not available for such services).

While recognizing the importance of consumer protection as regards distance contracts for financial services, the Council took the view, given the specific nature of financial services - which are already covered by Community legislation in many respects - and of immovable property (apart from rental) - where national laws still contain special arrangements - and as contracts for such services and such property are in large part already excluded from the right of withdrawal by the amended proposal (Article 12 (4), second and third indents), that it was better to exclude (5) them from the scope.

The practical arrangements for auction sales and the instant nature of the 'contract' represented by use of public pay-phones also warrant their exclusion from the scope.

(iv) Information (Articles 5, 6 and 11)

Taking the view that consumer information is a key part of consumer protection, the Council wanted to clarify and restructure these Articles so as to distinguish between prior information (Article 4 of the common position) and written confirmation of information (Article 5 of the common position):

- with paragraphs 1 (g) and 2 of the new Article 4 taking over paragraphs 3 (6) and 1 and 2 of Article 5,

- with the new Article 5 taking over Article 11 and clarifying the term 'the supplier's most appropriate place of business' (to which the consumer may address any complaints).

(v) Restrictions on the use of means of communication (Article 4)

Article 10 of the common position makes Article 4 more precise so as not to hold out the illusion of protection that is unenforceable and accordingly applies only to means 'which allow individual communications'.

Taking the view that protection is already available for the telephone (ex-directory numbers) or electronic mail (access codes), that such means can 'be used only where there is no clear objection from the consumer' and that automatic calling machines are already covered by prior consent, the Council did not include the telephone (apart from automatic calling machines) or electronic mail among the means of communication requiring prior consent.

(vi) Provisions relating to performance (Articles 8, 9, 10 and 13)

The time limit for performance is set by Article 7 (1) of the common position more strictly than by the amended proposal (performance within 30 days after the order is forwarded and not performance to begin not more than 30 days after the order is received).

Unavailability of what was ordered and substitute supplies are covered by Article 7 (2) and (3) of the common position.

Article 9 of the common position deals with inertia selling, exempting the consumer from any obligation to the supplier, and excludes altogether goods supplied free of charge as referred to in Article 9 (4) of the amended proposal, the wording of which has therefore not been included.

As regards methods of payment, the Council - like the European Parliament - did not think it advisable to prohibit payment in advance, in view of the risks involved in such transactions for suppliers, and therefore did not include Article 8 of the amended proposal. On the other hand, it has required the supplier to 'reimburse the sums paid by the consumer' in the event of withdrawal (Article 6 (2) of the common position) and of failure to perform (Article 7 (2) of the common position) in line with the objective of amendment 30 while taking the view that the introduction of a guarantee scheme in case of supplier default is a broader issue of relevance to all of the supplier's obligations and should be dealt with as such.

Article 8 of the common position deals with payment by card (Article 13), taking a wider view of any kind of fraudulent use in the context of a distance contract, while leaving open the arrangements for the return of sums repayable; this could in particular allow the operation of a guarantee scheme, which was ruled out by the wording of Article 13 of the amended proposal.

(vii) Right of withdrawal (Article 12)

It became clear to the Council that this Article needed to be clarified so that the provision of information (particularly on the right of withdrawal) could mesh more smoothly with the exercise of the right of withdrawal. The approach followed in the Directive of the European Parliament and of the Council on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of a right to use immovable properties on a timeshare basis proved to be a suitable model for the purpose and resulted in the wording of Article 6 (1) of the common position, based on a three-month period within which missing information can still be supplied and a withdrawal period proper of seven days.

The Council wanted to amend the scope of this Article, which now excludes contracts for:

- services if performance has begun with the consumer's agreement (and not all services if performance has begun),

- immovable property (and not all contracts concluded in the form of an authenticated document),

- audio or video recordings, records or computer software, since these may be copied almost immediately,

- newspapers, periodicals and magazines, since their contents are soon out of date,

- gaming and lottery services, in view of their special manner of operation.

The Council did not, however, think it advisable to exclude products for personal hygiene.

(viii) Judicial or administrative protection (Articles 14, 16 and 17)

In Article 11 of the common position, the Council basically sought to avoid over-specific wording which might not tally with all national systems of law, while retaining the substance of Article 14, in particular the possibility of action by professional or consumer organizations and the possibility of reversing the burden of proof or of self-regulation.

Article 12 (2) of the common position spells out the conditions for enjoying the protection afforded by this Directive to the consumer where the law of a non-member country has been chosen and Article 13 of the common position details the relationship of this Directive to existing Community legislation.

(ix) Final provisions (Articles 18 and 19)

The minimal clause (Article 14 of the common position) comprises inter alia, among the more stringent provisions, the prohibition of the marketing of medicinal products, without confining this to prescription drugs (amendment 36/rev.).

The common position had to set a transposition period as the date laid down in the Commission proposal had passed and it has opted here for a three-year period, comparable to that set for other consumer protection acts.

A reporting and revision clause has also been added (Article 15 (4) of the common position).

(x) Provisions not included

- amendment 20 (Article 7): it is not for this Directive to amend the conditions for implementation of Directive 89/552/EEC,

- amendment 29 (Article 12 (5)): this Directive makes provision only for failure to perform as a result of unavailability of the goods or services ordered,

- amendment 32 (Article 15): firstly, this provision comes under Member States' general duty to inform the public and, secondly, this Directive is not addressed to the 'organizations concerned'.

(1) OJ No C 156, 23. 6. 1992.

(2) OJ No C 176, 28. 6. 1993.

(3) OJ No C 308, 15. 11. 1993.

(4) OJ No C 19, 25. 1. 1993.

(5) It should be noted, however, that credit agreements linked to a distance contract continue to be covered when the right of withdrawal is exercised in respect of the distance contract.

(6) In a tightened-up form since the cost of using the means of communication now has to be stated.