COMMISSION NOTICE

Guidance on the interpretation and application of Directive 2011/83/EU of the European Parliament and of the Council on consumer rights

(Text with EEA relevance)

(2021/C 525/01)

CONTENTS

INTRODUCTION 5

1. Scope of application 6

1.1. The notions of ‘trader’ and ‘consumer’ 6

1.2. The notion of ‘contract’ 7

1.3. Contracts covered 8

1.4. Mixed purpose contracts 9

1.5. Distinction between digital services and online digital content 10

1.6. Contracts against payment and contracts where the consumer provides personal data 12

1.6.1. Contracts against payment 12

1.6.2. Contracts where the consumer provides personal data 13

1.7. Contracts to which the Directive does not apply 14

1.7.1. Rental contracts and building contracts 14

1.7.2. Package travel 15

1.7.3. Contracts established by a public office-holder 16

1.7.4. Contracts for goods intended for current consumption 16

1.7.5. Passenger transport 16

1.7.6. Automated sales 17

1.7.7. Certain contracts related to electronic communications 17

1.8. Possible exemption of low value off-premises contracts 18

1.9. Rules for public auctions 19

2. Off-premises contracts 19

2.1. Contracts concluded outside the trader’s business premises 19

2.2. Contracts concluded after addressing the consumer outside the business premises 20

2.3. Contracts concluded during an excursion organised by the trader 21

3. Consumer information 22

3.1. General requirements 22

3.1.1. Introduction 22

3.1.2. Clarity of the information and link to the UCPD 22

3.1.3. Information ‘already apparent from the context’ 23

3.1.4. Information requirements in other EU legislation 23

3.1.5. Imposition of additional information requirements 24

3.1.6. Exemption of ‘day-to-day’ transactions 25

3.1.7. The binding nature of pre-contractual information 25

3.1.8. Additional language requirements 25

3.1.9. Burden of proof 26

3.2. Common requirements for on-premises and distance/off-premises contracts 26

3.2.1. Main characteristics 26

3.2.2. Trader’s identity and contact details 27

3.2.3. Price 30

3.2.4. Delivery and performance of the contract 31

3.2.5. Arrangements for payment 32

3.2.6. Guarantees and after-sales services 32

3.2.7. Duration and termination of the contract 34

3.2.8. Functionality, compatibility and interoperability 34

3.3. Additional requirements for off-premises and distance contracts 36

3.3.1. Personalised price 36

3.3.2. Cost of using distance means of communication 36

3.3.3. Deposits and financial guarantees 37

3.3.4. Out-of-court redress mechanisms 37

3.4. Additional requirements for online marketplaces 38

3.4.1. Ranking criteria 38

3.4.2. Status of the other contractual party 40

3.4.3. Information about non-applicability of EU consumer law 40

3.4.4. Allocation of responsibilities for the contract 41

3.4.5. Possibility to impose additional information requirements 41

4. Special requirements for distance contracts 42

4.1. Definition of a distance contract 42

4.2. Pre-contractual information 43

4.2.1. Information to be presented directly before placing the order 43

4.2.2. Order confirmation button 44

4.2.3. Information on delivery restrictions and means of payments 44

4.2.4. Contracts concluded over means of distance communication with limited space or time 45

4.3. Contracts concluded by telephone 46

4.4. Confirmation of the contract 47

5. The right of withdrawal 49

5.1. Calculation of the right of withdrawal period 49

5.1.1. Introduction 49

5.1.2. Starting point of the withdrawal period 50

5.2. Information about the right of withdrawal 51

5.3. Exercise of the right of withdrawal 52

5.4. Consequences of the withdrawal concerning the data 53

5.5. Right of withdrawal in respect of goods 54

5.5.1. Multiple or defective goods 54

5.5.2. Return of the goods 54

5.5.3. Reimbursement of the payments received from the consumer 55

5.5.4. Consumer’s liability for mishandling of the goods 56

5.5.5. Risk when returning the goods to the trader 58

5.6. Right of withdrawal from contracts for services and public utilities 58

5.6.1. Consumer’s consent to immediate performance 58

5.6.2. Consumer’s compensation obligation 60

5.7. Right of withdrawal from contracts for online digital content 61

5.8. Consequences of failing to inform about right of withdrawal 62

5.8.1. Consequences regarding the goods 63

5.8.2. Consequences regarding services and public utilities 63

5.8.3. Consequences regarding online digital content 64

5.9. Termination of the contract following the exercise of the right of withdrawal 64

5.10. Ancillary contracts 65

5.11. Exceptions from the right of withdrawal 65

5.11.1. Goods or services for which the price is dependent on fluctuations in the financial market 65

5.11.2. Goods made to the consumer’s specifications or clearly personalised 66

5.11.3. Goods liable to deteriorate or expire rapidly 67

5.11.4. Goods sealed for health protection of hygiene reasons 67

5.11.5. Goods that get inseparably mixed with other items 68

5.11.6. Contracts with a specific date or period of performance 68

5.11.7. Repairs requested by the consumer 69

5.12. Regulatory choices in case of unsolicited visits or excursions 69

5.12.1. Introduction 69

5.12.2. Extension of the right of withdrawal period 70

5.12.3. Derogations from the exceptions from the right of withdrawal 71

6. Delivery 71

7. Passing of risk 72

8. Fees for the use of means of payment 73

8.1. Introduction 73

8.2. Definition of ‘fees’ 73

8.3. Definition of the ‘cost’ borne by the trader 74

8.3.1. The Merchant Service Charge and other direct costs 74

8.3.2. General costs of running a business 74

8.3.3. Eligible costs justifying a fee for the use of means of payment 74

8.4. Payments in foreign cash 75

9. Communication by telephone 76

10. Additional payments 77

11. Enforcement 77

11.1. Public and private enforcement 77

11.2. Application to third country traders 78

11.3. Penalties 79

11.3.1. Criteria for the imposition of penalties 79

11.3.2. Penalties in the context of CPC coordinated enforcement actions 80

ANNEX 82

INTRODUCTION

The purpose of Directive 2011/83/EU of the European Parliament and of the Council (1) on consumer rights (hereinafter referred to as ‘CRD’ or ‘Directive’) is to achieve a high level of consumer protection across the EU and to contribute to the proper functioning of the internal market by approximating certain aspects of Member States’ laws, regulations and administrative provisions concerning contracts concluded between consumers and traders (2).

The purpose of this Guidance Notice (hereinafter referred to as ‘Notice’) is to facilitate the effective application of the Directive. The Notice also aims at increasing awareness of the Directive amongst all interested parties, such as consumers, businesses, the authorities of the Member States, including national courts, and legal practitioners, across the EU. It covers the amendments introduced by Directive (EU) 2019/2161 of the European Parliament and of the Council (3) as regards the better enforcement and modernisation of Union consumer protection rules that enter into application from 28 May 2022. Accordingly, a part of this guidance reflects and discusses the rules that have not yet entered into application as of the date of issuance of this Notice. The relevant sections and points are clearly indicated.

The Notice reflects the case law of the Court of Justice of the European Union (hereinafter referred to as ‘CJEU’ or ‘the Court’) on the Directive since its entry into application on 13 June 2014. From its date of application, the Directive replaced Council Directive 85/577/EEC (4) to protect the consumer in respect of contracts negotiated away from business premises and Directive 97/7/EC of the European Parliament and of the Council (5) on the protection of consumers in respect of distance contracts. CRD retained certain provisions of the former Directives 85/577/EEC and 97/7/EC. Therefore, the relevant case law of the Court related to the interpretation of those Directives is also referred to in this document where applicable.

The Notice does not analyse the application of the Directive in the individual Member States, including the decisions of national courts and other competent bodies. In addition to different information sources available in the Member States, information on the national provisions transposing the Directive, on case law and on legal literature is available in the Consumer Law Database accessible via the E-justice portal (6).

This Notice is addressed to the EU Member States and to Iceland, Liechtenstein and Norway as signatories of the Agreement on the European Economic Area (7) (EEA). References to the EU, the Union or the Single Market should therefore be understood as references to the EEA or to the EEA market.

This Notice is intended purely as a guidance document – only the text of the EU legislation itself has legal force. Any authoritative reading of the law has to be derived from the text of the Directive and directly from the decisions of the Court. This Notice takes into account rulings of the Court published until October 2021 and cannot prejudge further developments of the Court’s case law.

The views expressed in this Notice cannot prejudge the position that the European Commission might take before the Court. The information contained in this Notice is of a general nature and does not specifically address any particular individuals or entities. Neither the European Commission nor any person acting on behalf of the European Commission is responsible for any use that may be made of the following information.

As this Notice reflects the state of the art at the time of drafting, the guidance offered may be modified at a later date.

1. Scope of application

1.1. The notions of ‘trader’ and ‘consumer’

As laid down in its Article 1, the CRD applies to ‘contracts concluded between consumers and traders’. Therefore, for a contract to be covered by the Directive, it is necessary to establish that one party thereto is a trader, as defined in Article 2(2), and the other party a consumer, as defined in Article 2(1).

According to Article 2(1), ‘consumer’ is any natural person who, in contracts covered by the Directive, is acting for purposes which are outside his/her trade, business, craft or profession. It follows from that provision that two cumulative conditions must be satisfied in order for a person to fall within the scope of that concept, namely that: (i) the person is a natural person, and (ii) the persons acts for non-professional purposes.

As explained in Recital 13, Member States may maintain or introduce national legislation corresponding to the provisions of the Directive in relation to contracts that fall outside the scope of the Directive, for example, by extending the application of national rules also to natural persons who are not consumers within the meaning of Article 2(1) or to legal persons, such as non-governmental organisations, start-ups or small and medium-sized enterprises.

In this respect, in case C-329/19 Condominio di Milano (8), the Court confirmed that the concept of ‘consumer’ can be expanded by national case-law in such a way that its protective rules also apply to a contract between a trader and a subject of the law, which is not a natural person, such as the ‘condominio’ (co-owners’ association) in Italian law.

Furthermore, the Court held that the concept of ‘consumer’ refers to an individual not engaged in commercial or trade activities (9). This second criterion should be interpreted in light of Recital 17, which introduces the qualification of ‘predominant use’: ‘[…] in the case of dual purpose contracts where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract that person should also be considered as a consumer’.

Thus, a natural person who, in contracts covered by this Directive, is acting for purposes which are primarily outside of his trade, business, craft or profession would also fall under the definition of ‘consumer’. Such classification should be based on a case-by-case assessment (10).

‘Trader’ is defined in Article 2(2) as a natural or legal person acting ‘for purposes relating to his trade, business, craft or profession’ or in the name or on behalf of a trader. Not only privately owned, but also publicly owned persons can be qualified as a trader.

In case C-105/17 Kamenova (11) , the Court noted that the concept of ‘trader’ is defined almost identically in both the CRD and the Unfair Commercial Practices Directive 2005/29/EC of the European Parliament and of the Council (12) (hereinafter referred to as ‘UCPD’) and thus must be interpreted uniformly. Relying on the case law developed under the UCPD, the Court interpreted the notion of ‘trader’ broadly considering that it must be determined in relation to the related but diametrically opposed concept of ‘consumer’. In relation to a trader, the consumer is in a weaker position, and he/she must be deemed to be less informed, economically weaker and legally less experienced than the other party to the contract. Classification as a ‘trader’ requires a case-by-case assessment of the, taking into account the following indicative criteria:

(i) whether the sale was carried out in an organised manner;

(ii) whether that sale was intended to generate profit;

(iii) whether the seller had technical information and expertise relating to the products which they offered for sale which the consumer did not necessarily have, with the result that the seller was placed in a more advantageous position than the consumer;

(iv) whether the seller had a legal status which enabled them to engage in commercial activities;

(v) to what extent the sale was connected to the seller’s commercial or professional activity;

(vi) whether the seller was subject to VAT;

(vii) whether the seller, acting on behalf of a particular trader or on his/her own behalf or through another person acting in his/her name and on his/her behalf, received remuneration or an incentive;

(viii) whether the seller purchased new or second-hand goods in order to resell them, thus making that a regular, frequent and/or simultaneous activity in comparison with their usual commercial or business activity;

(ix) whether the goods for sale were all of the same type or of the same value; and

(x) whether the offer was concentrated on a small number of goods.

The CJEU emphasised that these criteria are neither exhaustive nor exclusive, and, in principle, compliance with one or more of the criteria is not sufficient, by itself, to classify that person as a ‘trader’. The mere fact that the sale is intended to generate profit or that a natural person publishes, simultaneously, on an online platform a number of advertisements offering new and second-hand goods for sale cannot suffice, by itself, to classify that person as a ‘trader’ (13).

In situations where an intermediary (such as an online marketplace) or a trader representing another trader is involved, these different traders should make it clear to the consumer which trader is the contractual party for the consumer and what the respective roles and responsibilities of the different traders are. This question is further addressed in section 3.2.2.1.

In this respect, Directive (EU) 2019/2161 amended the CRD, introducing a requirement for the providers of online marketplaces to inform the consumer whether the third party supplier is acting as a ‘trader’ or ‘non-trader’ (peer-consumer), on the basis of a declaration by the third party supplier to the provider of the online marketplace. The information requirements for online marketplaces are addressed in section 3.4.2.

1.2. The notion of ‘contract’

The triggering factor for the application of the Directive is the offer to conclude a contract between a trader and a consumer. The Directive does not define ‘the contract’ and does not determine the circumstances when a contract to which the Directive applies is deemed to have been concluded. It is for the national courts and enforcement authorities in the Member State concerned to assess whether a legal relationship constitutes a ‘contract’. According to its Article 3(5):

Article 3 5. This Directive shall not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated in this Directive.

For example, the Directive is without prejudice to national contract law rules on the transfer of contractual rights and obligations from one consumer to another.

It should be noted that a single contract can cover multiple items, both goods and digital content items. For example, depending on its terms, a single subscription contract may cover the supply of a range of digital content. If covered by a subscription contract, each supply of individual digital content under that contract would not, accordingly, constitute a new contract for the purposes of the Directive.

In C-922/19 Stichting Waternet (14) , the Court dealt with the question whether the continued supply of water to a dwelling in the case of change of occupancy without the new occupant’s express request constitutes ‘inertia selling’ in the meaning of point 29 of the UCPD Annex I (‘blacklist’), resulting in a right for the consumer not to pay for such supply in accordance with Article 27 of the CRD. The case required, inter alia, a determination whether a contract may be regarded as concluded between a water supply company and a consumer, in the absence of that consumer’s express consent.

The Court recognised that the supply of water may not always require the existence of a contract. It is also possible for the legal relationship between the respective supplier and consumer to be regulated entirely by national legislation, concerning both the supply of water by [that] trader and the costs associated with that supply payable by the consumer (15).

In such a case where there is no contract, the Directive would not apply to the relationship between the supplier and consumer. In any event, it remains decisive whether the respective relationship is regarded as ‘contract’ under the applicable national law.

1.3. Contracts covered

The Directive regulates certain aspects of contracts between a trader and a consumer. First, it distinguishes between different contracts according to the circumstances of their conclusion:

(1) contracts concluded outside the trader’s business premises (off-premises contracts);

(2) contracts concluded using distance means of communication – over the internet, including on online marketplaces, by telephone etc. (distance contracts); and

(3) contracts other than distance or off-premises contracts (typically these are contracts concluded in regular brick-and-mortar shops, hereinafter referred to as ‘on-premises’ contracts).

The Directive further distinguishes between the following types of contracts based on the subject matter:

(1) sales contracts;

(2) service contracts, including contracts for digital services;

(3) contracts for the supply of digital content which is not supplied on a tangible medium (‘contracts for online digital content’); and

(4) contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume of set quantity, or of district heating (‘contracts for the supply of public utilities’).

Sales contracts and service contracts are defined in Article 2(5) and (6) of the Directive. Contracts for online digital content and for the supply of public utilities are not expressly defined but Recital 19 explains that, for the purposes of the Directive, they are not classified as sales or as service contracts.

Although many provisions of the Directive apply generally to all four types of contracts, there are rules that apply only to a specific type of contract. In particular, different contracts (see Article 9) have different rules on calculating the period during which the right of withdrawal can be exercised (see also section 5 on the right of withdrawal).

Recital 19 also clarifies that the Directive considers as ‘goods’ digital content supplied on a tangible medium. It refers to digital content supplied on CD or a DVD as examples but the same approach applies also to digital content supplied on other carriers or on a smart device, such as a gaming console with pre-installed games. Regardless of the type of the tangible medium (16), the contract for such digital content falls under the rules of the CRD on the right of withdrawal applicable to sales contracts (17).

Since the definition of the sales contract (see below) refers to the transfer of ownership of goods by the trader to the consumer (i.e. business-to-consumer contracts), the Directive does not apply to contracts under which it is the consumer who transfers goods to the trader, for example, a second-hand car or jewellery.

1.4. Mixed purpose contracts

Article 2 (5) ‘sales contract’ means any contract under which the trader transfers or undertakes to transfer ownership of goods to the consumer, including any contract having as its object both goods and services; (6) ‘service contract’ means any contract other than a sales contract under which the trader supplies or undertakes to supply a service, including a digital service, to the consumer;

In practice, many contracts concluded between traders and consumers, to which the Directive applies, contain elements of both services and goods. In these cases, the last part of the definition under Article 2(5) is relevant since it defines a sales contract also as ‘any contract having as its object both goods and services’.

According to the definition under Article 2(5), the criterion for classifying a contract as a ‘sales contract’ is the transfer of the ownership of goods to the consumer. Therefore, if a contract’s main purpose is the transfer of ownership of certain goods, it should be classified as a sales contract even if it also covers related services provided by the seller, such as installation, maintenance or any other processing, irrespective of the relative value of the goods and services.

Examples of contracts that cover both goods and services and should usually be considered as sales contracts because of their main purpose:

— the purchase of a new kitchen set, including its installation at the consumer’s apartment;

— the purchase of specific construction elements, such as windows and doors, including their installation in the consumer’s house;

— the purchase of a mobile smartphone bundled with a subscription to an electronic communications service.

In contrast, if the transfer of the ownership of specific goods is not the main purpose of the mixed contract, the contract should not be considered a sales contract.

Examples of contracts that cover both services and goods that should be classified as service contracts because of their main purpose:

— a contract for the repair, renovation and construction of an annex to a building (see Recital 26);

— a contract for attending a lecture, including delivery of pens and folders to the participants;

— a contract for a training course, including delivery of a course book for each participant.

This interpretation is supported by well-established case-law of the CJEU on the free movement of goods and the freedom to provide services, which remains pertinent also in the context of this Directive.

For example, in case C-20/03 Marcel Burmanjer the Court stated that an economic activity should be examined in the context of either the free movement of goods or the freedom to provide services if one of these elements ‘is entirely secondary in relation to the other and may be considered together with it’ (18).

This also means that a mixed contract should be considered as sales contract if facts show that its actual purpose is the transfer of the ownership of goods:

— For example, if the sale of the course book had a particularly prominent place in the trader’s offer for a training course and in communication between the parties, and if this course book had significant relative value compared to the overall price of the training, the contract may be classified as a sales contract rather than a service contract for the purposes of the Directive.

On the other hand, even where a mixed contract results in the production of something in a tangible form, it should be considered as a service contract as long as the subject matter of the contract is an intellectual or skilled service and the subsequent delivery has only ancillary function (19):

— For example, the contract with an architect to design a house and the contract with a lawyer to prepare and file a lawsuit are both service contracts, even though at the end there is a tangible result (e.g. construction blueprints, a claim, or an application). Similarly, the contract with an artist to draw a painting and the contract with a photographer for a wedding photo session are service contracts.

In a nutshell, each mixed contract should be classified based on its real main purpose. The fact that the contract may include an option to enter into subsequent agreements should not per se change its characteristics. For example:

— If a contract for the rental of goods only includes an option to transfer ownership, not an obligation, it should be classified as a service contract for the purposes of the Directive.

Classifying a contract as either a sales or a service contract determines how the withdrawal period is calculated (Article 9). For service contracts, the 14-day withdrawal period starts running from the conclusion of the contract. For sales contracts, the withdrawal period only starts running after the goods are received. In addition, some of the Directive’s provisions, such as Articled 18 and 20 on delivery and the passing of risk, only apply to sales contracts.

The same sales or service contract may also cover services that are not governed by the Directive. For example, a sales or service contract may make it possible to pay the price in instalments at a certain interest rate. Such a contract would also be subject to the specific rules governing consumer financial services (20). The rules on ancillary contracts in Article 15 of the Directive would apply by analogy (see section 5.10).

1.5. Distinction between digital services and online digital content

Directive (EU) 2019/2161 clarified the definition of ‘services contract’ in the CRD as including also contracts for ‘digital services’ (see the definition in the previous section). In addition, Directive (EU) 2019/2161 introduced, in Article 2(16), a definition of ‘digital service’, which refers to its definition in point (2) of Article 2 of the Digital Content Directive (EU) 2019/770 of the European Parliament and of the Council (21) (‘DCD’).

Article 2 of Digital Content Directive provides:

Article 2 (1) ‘digital content’ means data which are produced and supplied in digital form; (2) ‘digital service’ means: (a) a service that allows the consumer to create, process, store or access data in digital form; or (b) a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service;

Recital 19 of the DCD explains that ‘in order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content or digital service, this Directive should cover, inter alia, computer programmes, applications, video files, audio files, music files, digital games, e-books or other e-publications, and also digital services […] including software-as-a-service , such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media.’ It should be noted that while the second set of examples are clearly attributed to the category of digital services, the classification of the first set of examples as digital content or services depends on the mode of transmission or access as well as other specifics of the business model.

Recital 30 of Directive (EU) 2019/2161 provides further guidance on distinguishing the contracts for online digital content from contracts for digital services. In particular, ‘ [e]xamples of digital services are video and audio sharing services and other file hosting, word processing or games offered in the cloud, cloud storage, webmail, social media and cloud applications’. In contrast, ‘[m]any contracts for the supply of [online] digital content […] are characterised by a single act of supply to the consumer of a specific piece or pieces of digital content, such as specific music or video files.’

Accordingly, digital services are, for example:

— subscriptions to internet-based storage of pictures created by the consumer, to social networks or to internet voice/video telephony;

— subscriptions to online weather or traffic services;

— subscriptions to online newspapers/newsletters (see also the exception from the right of withdrawal under point (j) of the first paragraph of Article 16, which applies to the supply of a newspaper but not to newspaper subscriptions).

Recital 30 of Directive (EU) 2019/2161 acknowledges that it may be nevertheless difficult to distinguish between certain types of online digital content and digital services. Therefore, ‘[w]here there is doubt as to whether the contract is a service contract or a contract for the supply of digital content which is not supplied on a tangible medium, the rules on right of withdrawal for services should apply .’

The distinction between contracts for online digital content and contracts for digital services is important because of the different right of withdrawal regimes. The rules on the right of withdrawal for service contracts effectively allow the consumer to test the service and decide, during the 14-day period from the conclusion of the contract, whether to keep it or not.

In contrast, under point (m) of the first paragraph of Article 16 there is no right of withdrawal in the case of supply of online digital content, subject to several conditions. In accordance with the amendments introduced by Directive (EU) 2019/2161, these conditions are that the performance has begun with the consumer’s prior express consent and acknowledgment that the consumer thereby loses the right of withdrawal and that the trader has provided confirmation of the contract concluded (see also section 5.7).

The Court clarified in C-641/19 PE Digital that the exception to the right of withdrawal under Article 16(m) CRD applicable to contracts for online digital content should be interpreted strictly (22). The case concerned withdrawal from a premium subscription agreement for a dating website, but only after the consumer had taken a personality test that provided a selection of partner recommendations based on a proprietary algorithm.

The Court stated that Article 16(m), read in conjunction with Article 2(11) of the CRD, must be interpreted as meaning that the generation of such a personality report does not constitute the supply of ‘digital content’. The Court also noted more generally that, in the light of Recital 19 of the Directive, a web-based service that allows the consumer to create, process, store or access data in digital form and allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service cannot, as such, be regarded as the supply of ‘digital content’ within the meaning of Article 16(m) (23).

For example, the provision of video games may involve both contracts for online digital content and contracts for digital services. Downloadable games would normally qualify as online digital content when their use does not depend on continuous involvement of the game supplier. In contrast, online games provided in a cloud environment would qualify as digital services.

In-game micro-transactions (in-app purchases) in such games that enhance the playing experience of the respective user, such as virtual items, would normally qualify as contracts for online digital content. Also in-app purchases of content that could be used outside the game (e.g. a recording of the gaming session that can be downloaded or shared on a video-sharing platform) would normally constitute a contract for online digital content. In contrast, the purchase of premium content that expands the online gaming environment would represent a new digital service that complements the original one.

1.6. Contracts against payment and contracts where the consumer provides personal data

Article 3 of the CRD defining its scope was amended by Directive (EU) 2019/2161. The amended paragraph 1 now refers to ‘payment of the price’ as condition for the application of the Directive.

At the same time, a new paragraph 1a was added extending the scope of application of the Directive to contracts for online digital content and to contracts for digital services where the consumer provides personal data to the trader (subject to some exceptions).

Article 3 1. This Directive shall apply , under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer where the consumer pays or undertakes to pay the price . It shall apply to contracts for the supply of water, gas, electricity or district heating, including by public providers, to the extent that these commodities are provided on a contractual basis. 1a. This Directive shall also apply where the trader supplies or undertakes to supply digital content which is not supplied on a tangible medium or a digital service to the consumer and the consumer provides or undertakes to provide personal data to the trader , except where the personal data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital content which is not supplied on a tangible medium or digital service in accordance with this Directive or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose.

1.6.1. Contracts against payment

Directive (EU) 2019/2161 amended the definitions of sales and service contracts set out in Article 2(5) and (6) of the CRD which no longer refer to the consumer paying a ‘price’. However, taking into account the amendments in Article 3, these contracts remain subject to the Directive only where the consumer has to pay a price (unless the subject of a service contract is a digital service – see below).

The ‘payment of a price’ should be understood broadly, covering also instruments with a certain convertible or monetary value (even if it can vary in time), such as vouchers, (24) gift cards, loyalty points, as well as digital representation of value (25) such as e-vouchers, e-coupons and virtual currencies.

The Directive applies irrespective of the value of the transaction, thus low value subscription services (e.g. EUR 5 per month or per year to receive access to premium goods or offers) are also covered. The Directive also applies to service contracts, including contracts for digital services, that include a free trial period and are automatically converted into paid contracts once the trial period ends (unless the consumer terminates the contract before the trial period ends).

Where a (limited version) of the digital service is available for free, following which the consumer can opt for the paid (full) service, two successive separate contracts will be concluded. The Directive will apply in this case to the paid contract, whereas its applicability to the first contract for the free (limited) version of the digital service will depend on whether the consumer provides personal data under the conditions provided in Article 3(1a).

The Directive does not apply to gifts or to services provided by the trader without the payment of the price, i.e. for ‘free’ (26).

1.6.2. Contracts where the consumer provides personal data

The Directive applies to contracts for online digital content and contracts for digital services under which the consumer provides personal data to the trader (27). In this respect, the CRD follows the same approach as the Digital Content Directive (‘DCD’).

— For example, the CRD will apply to contracts providing free access to online digital content or digital services and the consumer consents to personal data processing also for marketing purposes.

However, like the DCD, the CRD does not cover contracts for online digital content and contracts for digital services where the personal data are only processed for the purpose of performing the contract and complying with legal requirements. Recital 34 of Directive (EU) 2019/2161 clarifies that such legal requirements can include, for instance, registration of the consumer for security and identification purposes where specifically laid down by applicable law.

Furthermore, as explained in Recital 35 of Directive (EU) 2019/2161, the Directive does not apply to situations where the consumer, without having concluded a contract with the trader, is exposed to advertisements exclusively in order to gain access to digital content or a digital service (28).

It also clarifies that the Directive does not apply to situations where the trader only collects metadata, such as information concerning the consumer’s device or browser (‘device fingerprinting’ or ‘browser fingerprinting’) or browsing history, except where this situation is considered to be a contract under national law (29).

Where the contract involves the processing of personal data, the trader must comply with its obligations under consumer law and – in its capacity of controller – also with the obligations under the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (30) (‘GDPR’). Both legal frameworks apply to the business-to-consumer relationship simultaneously and in a complementary manner.

For all contracts where the consumer provides personal data (irrespective of whether payment is involved or not), the trader must inform the consumer about the purposes of processing at the time when the personal data are obtained. Furthermore, the controller has to demonstrate that the processing of the personal data can be based on one of the legal grounds laid down in Article 6(1) GDPR. ‘Contract’ (Article 6(1)(b) GDPR) is one of the authorised legal bases thereunder. However, it is valid only for the processing ‘necessary for the performance of the contract’ which is strictly interpreted (31).

Accordingly, for the processing operations that are not necessary for the performance of the contract, the trader must additionally rely on another authorised legal basis for processing under the GDPR, for example, the consumer’s free and informed consent (Article 6(1)(a)) (32). In accordance with the GDPR, consumers’ consent is only valid if it is freely given, specific, informed and unambiguous. In the context of a contractual relationship, consent can only be freely given if it is not conditional to the performance of contract (Article 7(4) GDPR). Being able to withdraw consent without detriment is therefore an essential requirement for the validity of consent (Recital 42 GDPR). After the consent is withdrawn, the trader can no longer lawfully process the personal data whose processing was based on that consent.

Accordingly, for the processing operations that are not necessary for the performance of the contract, the trader-controller must ensure that there is another legal basis for processing under the GDPR. In contrast, the ‘contract’ in the meaning of the CRD encompasses all the rights and obligations of the parties, regardless of the distinction in the legal basis for personal data processing under the GDPR.

Identifying the processing activities in the context of contracts with consumers and the correct legal basis under the GDPR can help the trader to understand if the ‘contract’ that it concludes with the consumer is subject to the CRD. In practice, when the trader has to rely on a separate consumer consent or other legal basis under the GDPR (except legal obligation) for processing of personal data of consumers, the contract in the context of which this processing is taking place will be subject to the requirements of the CRD.

1.7. Contracts to which the Directive does not apply

As explained in previous section, pursuant to the amendment brought by Directive (EU) 2019/2161 to Article 3 of the CRD, the Directive does not apply to contracts where the consumer does not pay a price or, in case of contracts for online digital content or digital services, where the consumer neither pays the price nor provides personal data to the trader.

In addition, Article 3(3) lists specific categories of contracts excluded from the scope of application of the Directive. For example, the Directive does not apply to contracts for financial services, including insurance and investment. Social and healthcare services, gambling, timeshare and related holiday services are also excluded. Passenger transport services and package travel contracts (33) are excluded in principle, although specific provisions still apply.

Further explanations are provided below. As a general rule, all exceptions must be interpreted narrowly (34).

1.7.1. Rental contracts and building contracts

Article 3 3. This Directive shall not apply to contracts: (e) for the creation, acquisition or transfer of immovable property or of rights in immovable property; (f) for the construction of new buildings, the substantial conversion of existing buildings and for rental of accommodation for residential purposes;

The exception under point (e) concerns the general category of immovable property, including land, whilst point (f) deals with buildings.

Whereas the rental of accommodation for residential purposes is excluded from the scope of the Directive, the rental of accommodation for non-residential purposes is covered. This is also explained in Recital 26: ‘[…] Service contracts in particular those related to the construction of annexes to buildings (for example a garage or a veranda) and those related to repair and renovation of buildings other than substantial conversion, should be included in the scope of this Directive , as well as contracts related to the services of a real estate agent and those related to the rental of accommodation for non-residential purposes.’

— For example, renting a parking space or a party hall is subject to the Directive.

A distinction should be made between construction contracts and service contracts related to the construction. In case C-208/19 NK the Court noted that the exception under Article 3(3)(f) would not apply to a contract between an architect and a consumer, according to which the former is required to prepare the designs for the construction of a new building. Although the design precedes construction works, it is a separate process, and in fact there is no certainty that the building will be constructed at all (35).

Furthermore, based on Article 2(3) and (4) and point (c) of the first paragraph of Article 16, such a contract cannot be regarded as supply of goods made to the consumer’s specifications or clearly personalized, within the meaning of the latter provision. Although the designs could be provided in tangible form on paper or as digital content, the subject matter of the contract is an intellectual service – architectural design, and the subsequent delivery has only ancillary function (36).

Following the above logic, the CRD should apply to service agreements which may be related to construction but constitute a separate process with an independent deliverable, such as contracts concluded with geometers, contracts for interior design, landscape planning, etc.

1.7.2. Package travel

Article 3 3. This Directive shall not apply to contracts: (g) on packages as defined in point 2 of Article 3 of Directive (EU) 2015/2302 of the European Parliament and of the Council. Article 6(7), Article 8(2) and (6) and Articles 19, 21 and 22 of this Directive shall apply mutatis mutandis to packages as defined in point 2 of Article 3 of Directive (EU) 2015/2302 in relation to travellers as defined in point 6 of Article 3 of that Directive;

Certain provisions of the Directive apply to package travel contracts, as defined by the Package Travel Directive (EU) 2015/2302 of the European Parliament and of the Council (37), namely the regulatory choice of the Member States to set language requirements for contractual information (Article 6(7)); information that traders must provide to consumers directly before concluding a contract by electronic means, including about the consumer’s obligation to pay (Article 8(2); the regulatory choice of the Member States regarding the confirmation of the offer in the case of distance contracts concluded by phone (Article 8(6)); the prohibition of fees for the use of means of payments (Article 19); prohibition of using telephone numbers charged at more than basic rate (Article 21); and the requirement for express consent of consumers for additional payments (Article 22).

It should be noted that the Package Travel Directive also regulates the so-called ‘linked travel arrangements’ (38), which comprise at least two different types of travel services purchased for the purpose of the same trip or holiday, but do not constitute a package (within the meaning of that directive) and result from the conclusion of separate contracts with individual travel service providers. The CRD sets out the pre-contractual information requirements and applies to the individual service contracts comprising a linked travel arrangement, subject to the limitations set in its Article 3(3) and point (l) of the first paragraph of Article 16. For example, with respect to contracts for passenger transport services only the requirements under Article 8(2) and Articles 19, 21 and 22 will apply (see section 1.7.5 below for more information).

1.7.3. Contracts established by a public office-holder

Article 3 3. This Directive shall not apply to contracts: (i) which, in accordance with the laws of Member States, are established by a public office-holder who has a statutory obligation to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope;

The Directive does not identify the public office-holders referred to in this provision. However, it lays down the criteria they must fulfil for the contract to fall outside the Directive’s scope. This exception only applies to contracts established by a public office-holder (such as a public notary) who is subject, under national law, to all the conditions under Article 3(3)(i):

— For example, the exception would not apply to a contract for which a public office-holder, who has the statutory obligation to be independent and impartial, has merely certified the identity of the parties.

For this exception to be applicable, it does not seem necessary for national law to require the contract in question to be concluded through the services of a public office-holder. The exception should also apply if one or both of the parties to the contract voluntarily request a public office-holder to establish their contract (39).

1.7.4. Contracts for goods intended for current consumption

Article 3 3. This Directive shall not apply to contracts: (j) for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, and which are physically supplied by a trader on frequent and regular rounds to the consumer’s home, residence or workplace;

This exception requires two conditions to be met, namely:

(a) that the trader delivers the goods on ‘frequent and regular rounds’, and

(b) that these goods are for ‘current consumption in the household’.

The explicit reference to delivery to the consumer’s ‘workplace’ in this provision suggests that that the actual consumption of the goods does not necessarily need to take place at home.

1.7.5. Passenger transport

Article 3 3. This Directive shall not apply to contracts: (k) for passenger transport services, with the exception of Article 8(2) and Articles 19, 21 and 22;

Directive (EU) 2019/2161 amended this exception and made Article 21 on the ‘basic rate’ requirement for post-contractual telephone communications also applicable to passenger transport (see section 9 for further information).

In case C-583/18 DB Vertrieb, the Court ruled that this exception does not apply to the sale of transport discount cards, which accordingly fall within the scope of the Directive.

The Court qualified the latter as a type of ‘service contract’ with a special object that is not in itself directly concerned with enabling the transporting of passengers. Instead, the contract with an object to entitle the consumer to a price reduction when passenger transport contracts are subsequently concluded and the contract for the purchase of a passenger ticket are two contracts that are legally distinct from one another, so that the former cannot be regarded as a contract inextricably linked to the latter. The purchase of a card conferring upon its holder entitlement to price reductions when transport tickets are purchased does not necessarily entail the subsequent conclusion of a contract whose object is passenger transport itself (40).

1.7.6. Automated sales

Article 3 3. This Directive shall not apply to contracts: (l) concluded by means of automatic vending machines or automated commercial premises;

This exception applies to contracts concluded in the physical presence of the consumer and at the place where the good or service is sold/provided by automated means, such as vending machines, automated fuel stations or parking facilities.

1.7.7. Certain contracts related to electronic communications

Article 3 3. This Directive shall not apply to contracts: (m) concluded with telecommunications operators through public payphones for their use or concluded for the use of one single connection by telephone, internet or fax established by a consumer.

This provision exempts two types of contracts from the scope of the Directive’s application.

The first type mentioned in the CRD are contracts concluded with providers of electronic communications services through public payphones for their use. The term ‘public pay telephone’ refers to a telephone available to the general public, for the use of which the means of payment may include coins and/or credit/debit cards and/or pre-payment cards, including cards for use with dialling codes (41).

— Since this exception applies to contracts concluded ‘through’ public payphones, it should cover the cases in which the contract is concluded by, for example, inserting coins or swiping a credit card in the public payphone, in order to perform a voice call or to get access to a telephone directory or another reference service, offered by the same operator;

— The exception should not apply to contracts concluded with operators of public payphones by, for example, the prior purchase of a pre-paid calling card.

The second part of Article 3(3)(m) concerning contracts concluded for the use of ‘one single connection’ established by the consumer has a broader scope. Unlike the contracts for using public payphones, no party to this kind of contract is specified, which suggests that not only contracts with providers of electronic communications services are covered. Furthermore, nothing is specified concerning the purpose or content of this kind of contract.

This exception therefore covers, for example:

— A contract for use of a wireless access point (WAP) for a single internet session.

In contrast, the exception should not apply to contracts for electronic communications services (42) covering a certain period and/or volume of usage, for example:

— Contracts concluded through the prior purchase of a pre-paid SIM card for mobile services or of an access code for multiple use or long term Wi-Fi access services.

This exception also applies to contracts concluded with the providers of Premium Rate Services (PRS), i.e., services paid for through the consumer’s telephone bill (43) in cases where the contract is concluded and simultaneously fully performed by the single call made or an SMS sent by the consumer to the PRS number, for example:

— A call made to telephone directory inquiries or tele-voting in a show.

In contrast, the CRD is applicable to contracts where the voice call or SMS to a PRS number is a means of concluding and paying for a contract, which is performed subsequently:

— For example, contracts concluded through an SMS sent to a provider of parking services.

In these cases, the trader must inform the consumer about the cost of the voice call or SMS to the PRS number as this cost will constitute the ‘price’ for the contract concerned, in the meaning of Article 6(1)(e). Moreover, information about the cost using the means of distance communication above the ‘basic rate’ for concluding a contract is required under Article 6(1)(f) of the Directive. The interpretation of the ‘basic rate’ concept is further discussed in section 8.

The fact that the Directive does not apply to certain contracts involving PRS by virtue of Article 3(3)(m) does not mean that they are not subject to consumer protection rules. The EU regulatory framework for electronic communications, in particular the European Electronic Communications Code (Directive (EU) 2018/1972 of the European Parliament and of the Council (44)), enables Member States and the relevant National Regulatory Authorities to adopt specific measures to protect consumers in relation to PRS. Consequently, a number of Member States have implemented additional safeguards in this area, including, for example, consumption limits, an obligation to announce the price at the start of the call, etc.

1.8. Possible exemption of low value off-premises contracts

Article 3(4) allows Member States not to apply the Directive to off-premises contracts, for which the payment to be made by the consumer does not exceed EUR 50 or a lower value as defined under national law. If a Member State chooses to use this regulatory choice, there is a risk that the Directive gets circumvented by traders who may decide to artificially split a single contract above the set threshold into several contracts. As explained in Recital 28: ‘[…] Where two or more contracts with related subjects are concluded at the same time by the consumer, the total cost thereof should be taken into account for the purpose of applying this threshold.’ This principle would apply to:

— For example, selling each book of a trilogy under three separate contracts or selling a pair of earrings under two separate contracts at the same time.

For long-term contracts (subscriptions), the relevant amount for the application of this exception is the total amount that the consumer commits to pay when concluding the contract. i.e. the total amount of monthly instalments or charges over the agreed contractual period, including any ‘free’ periods.

1.9. Rules for public auctions

The Directive applies to auctions, subject to specific rules regarding ‘public auction’, defined under Article 2(13) as ‘a method of sale where goods or services are offered by the trader to consumers, who attend or are given the possibility to attend the auction in person , through a transparent, competitive bidding procedure run by an auctioneer and where the successful bidder is bound to purchase the goods or services’.

For public auctions, Article 6(3) makes it possible to replace the identity, contact details and geographical address of the establishment and place of business of the trader selling the goods or services with those of the auctioneer. Furthermore, there is no right of withdrawal from contracts concluded at a public auction pursuant to the exception in point (k) of the first paragraph of Article 16.

A public auction should give consumers the possibility to attend in person, even if it is also possible to make bids online or by telephone. In contrast, online auctions without the possibility to attend in person should not be considered public auctions.

Recital 24 specifies that ‘[…] the use of online platforms for auction purposes which are at the disposal of consumers and traders should not be considered as a public auction within the meaning of this Directive.’ Accordingly, online auctions should be fully subject to the Directive regarding, e.g., the pre-contractual information to be provided before the consumer is bound by the contract (the bid) and the right of withdrawal.

— An example of the limits of the above exception is an online platform that offers for sale to consumers various items, such as vehicle parts, small machines, tools, electronics and furniture. Even though transactions may be concluded in the form of an auction in which the selling price of the goods is determined on the basis of bids made on top of a starting price, this would not qualify as a ‘public auction’. Thus, consumers would retain the right to withdraw a bid once made within the terms prescribed by the CRD.

2. Off-premises contracts

2.1. Contracts concluded outside the trader’s business premises

Off-premises contracts are defined in Article 2(8) as follows:

Article 2 (8) ‘off-premises contract’ means any contract between the trader and the consumer: (a) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; (b) for which an offer was made by the consumer in the same circumstances as referred to in point (a); […]

Business premises are defined in Article 2(9) as follows:

Article 2 (9) ‘business premises’ means: (a) any immovable retail premises where the trader carries out his activity on a permanent basis; or (b) any movable retail premises where the trader carries out his activity on a usual basis;

Recital 22 provides several examples of what should be regarded as ‘business premises’. On the one hand, the concept would cover ‘shops, stalls or lorries, as well as market stalls and fair stands, when they serve as a permanent or usual place of business for the trader’.

Similarly, retail premises where the trader carries out his activity on a seasonal basis, for instance during the tourist season at a ski or beach resort, should be considered as business premises as the trader carries out his activity in those premises on a usual basis.

On the other hand, spaces accessible to the public, such as streets, shopping malls, beaches, sports facilities and public transport, which the trader uses on an exceptional basis for his business activities are not business premises. Private homes or (consumers’) workplaces also should not be regarded as business premises.

Contracts concluded during the trader’s visit to the consumer’s home or place of work are off-premises contracts irrespective of whether the visit was requested by the consumer or not. Such off-premises contract can be preceded by preparatory steps:

— For example, a visit of the trader’s representative (technician) to the consumer’s residence to sell and install at the same time a piece of equipment or device will be an off-premises service contract, regardless of the fact that the consumer had previously requested (booked) such a visit after a personal visit to the trader’s shop.

— In contrast, if the contract was actually concluded during the customer’s visit to the shop or by distance means of communication, the subsequent visit of the technician to install the necessary equipment at the consumer’s residence would not change the qualification of the contract into off-premises contract.

In case C-485/17 Verbraucherzentrale Berlin (45) the Court confirmed that the expression ‘on a usual basis’ within the meaning of Article 2(9)(b) must be understood as referring to the fact that the activity at issue being carried out on the premises in question is a ‘normal activity’. The application of this concept requires a case-by-case assessment, taking into account in particular the type of goods or services sold and the commercial practice of the specific trader.

More specifically the Court addressed the situation of a stand run by a trader at a trade fair, at which they carry out their activity for a few days each year. It ruled that such a stand constitutes ‘business premises’ if, in the light of all the factual circumstances surrounding that activity, in particular the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out its activity there and will solicit him or her in order to conclude a contract (46).

Furthermore, the Court acknowledged the continued relevance of its earlier conclusions in case C-423/97 Travel-Vac, S.L. on the interpretation of the former Council Directive 85/577/EEC. In that judgment, the Court specifically stated that:

‘As regards the question whether the contract was concluded away from the trader’s business premises, it must be observed that this concept refers to premises in which the trader usually carries on his business and which are clearly identified as premises for sales to the public .’ (47).

Accordingly, if the trader uses premises for selling goods and services that are not ‘normally used’ for such purpose and that are not clearly identified as premises for selling to the public, the contracts concluded with consumers are likely to be off-premises contracts.

— For example, sale of goods during events (conventions, seminars, parties, etc.) organised at restaurants, cafes or hotels rented for the purpose of the respective event are likely to be off-premises contract.

The classification of a contract as off-premises contract depends on the circumstances of the conclusion of the contract. A trader will be aware of the nature of his activity and should act according to the rules governing either on-premises or off-premises contracts. Any disputes as to whether, for example, the right of withdrawal was applicable because the contract should have been considered an off-premises contract, will have to be assessed on a case-by-case basis.

2.2. Contracts concluded after addressing the consumer outside the business premises

Article 2 (8) ‘off-premises contract’ means any contract between the trader and the consumer: […] (c) concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; or […]

Subparagraph (c) of Article 2(8) provides another example of off-premises contracts. The terms ‘personally and individually addressed’ in this provision should apply to offers and similar commercial communications (regardless of their legal classification) that are formalised into a contract immediately afterwards on the trader’s business premises or through any means of distance communication.

For this provision to apply, the trader’s offer should be addressed to a particular consumer, for example:

— The trader’s representative approaches the particular consumer in the street with an offer for a subscription to a monthly magazine and the contract is immediately signed on the trader’s nearby business premises.

— In contrast, the mere distribution of advertising leaflets in the street near the trader’s premises without individual targeting of individual consumers would not count as ‘personally and individually’ addressing the consumer for the purposes of this provision.

In addition, for this provision to apply, the contract should be concluded immediately. The contract would not be immediately concluded if the consumer leaves the trader’s premises after having been invited to them, and returns at his own initiative later, for example, the following day after having considered the offer.

In case C-465/19 B & L Elektrogeräte GmbH the Court ruled that the aisle common to the various stands present in an exhibition hall, in which the trader’s stand (which itself was recognised as ‘business premises’) is located, cannot be considered to be ‘business premises’, in so far as that aisle provided access to all the traders’ stands in that hall. Therefore, where a trader addresses a customer in such common space of the fair, as a result of which a contract is concluded at a stand run by the trader immediately thereafter, this is an ‘off-premises contract’ within the meaning of Article 2(8) of CRD (48).

2.3. Contracts concluded during an excursion organised by the trader

Article 2 (8) ‘off-premises contract’ means any contract between the trader and the consumer: […] (d) concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

Subparagraph (d) of Article 2(8) of the Directive defines off-premises contracts as contracts concluded during an excursion organised by the trader irrespective of whether such contracts are concluded away from, or on a trader’s business premises.

Furthermore, the Directive specifies that it covers both excursions with the ‘aim’ and ‘effect’ of promoting and selling products to the consumer, i.e., it should not matter whether the consumer is informed beforehand about the intended sale of products during the excursion.

The notion of ‘excursion’ includes journeys that involve sightseeing or other leisure-related activities, or journeys to locations such as restaurants, cafes or hotels where an off-premises selling event is organized. In applying this notion, it should not matter whether the trader selling the products during an excursion organises the transport himself or has made arrangements with a transport company:

— For example, if a trader has made arrangements with the organiser of the excursion to make sure that, during their excursion, tourists are also brought to his shop, the contracts concluded at the shop are likely to be off-premises contracts notwithstanding the fact that the shop in question is that trader’s business premises.

— In contrast, a shuttle bus service organised by a shopping centre with the sole purpose of bringing the potential customers to the shopping centre is merely ancillary to the main purpose of the activity (i.e. to sell the goods and services) and should not be considered an ‘excursion’ for the purposes of Article 2(8).

3. Consumer information

3.1. General requirements

3.1.1. Introduction

Pre-contractual information requirements are set out in Articles 5 to 8 of the Directive. They are defined separately for on-premises contracts in Article 5(1) and for off-premises and distance contracts in Article 6(1). The requirements for off-premises and distance contracts are more extensive and build on those provided for on-premises contracts. Additional specific information requirements for contract concluded on online marketplaces are set out in Article 6a that was added to the CRD by Directive (EU) 2019/2161.

The information requirements concerning the right of withdrawal under Article 6(1)(h)–(k) are addressed separately in section 5.

3.1.2. Clarity of the information and link to the UCPD

Article 7 of the UCPD prohibits misleading omissions, i.e. commercial practices that omit or provide in an unclear, unintelligible, ambiguous or untimely manner ‘material information that the average consumer needs to take an informed transactional decision’ when such practice causes the average consumer to take a transactional decision that they would not have taken otherwise. Article 7(4) lays down information requirements for the ‘invitation to purchase’, which is commercial communication that includes information about the product’s characteristics and price, therefore covering also the pre-contractual stage of the transaction.

The CRD regulates the pre-contractual stage in greater detail than the UCPD. Articles 5 and 6 of the CRD cover all the information requirements laid down in Article 7(4) of the UCPD (49). Therefore, when providing pre-contractual information in accordance with the CRD, a trader will also comply with the specific information requirements for the invitation to purchase under Article 7(4) of the UCPD. This is without prejudice to the application of other transparency and fairness requirements under the UCPD.

Both Article 5(1) and 6(1) of the CRD require information to be provided in a ‘clear and comprehensible manner’. Recital 34 specifies that, in providing pre-contractual information, ‘[…] the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee. However, taking into account such specific needs should not lead to different levels of consumer protection.’

In addition, under the general rules of Article 7(2) of the UCPD, traders must ensure that the information is intelligible and timely, i.e. the method and the moment at which the relevant pre-contractual information is provided must allow the average consumer to take an informed transactional decision.

For off-premises contracts Article 7(1) of the CRD additionally requires the pre-contractual information to be ‘legible and in plain, intelligible language’ and for distance contracts Article 8(1) of the CRD requires information to be made available to the consumer ‘in a way appropriate to the means of distance communication used in plain and intelligible language. In so far as that information is provided on a durable medium, it shall be legible.’

It is not sufficient to provide the mandatory pre-contractual information merely as part of the general terms and conditions that the consumer may have to accept before moving on in the transaction process (50). The requirement to provide information in a ‘clear and comprehensible manner’ means that the individual elements of the mandatory information must be brought to the attention of the consumer.

In the online context, traders must make the mandatory information easily accessible and prominently visible to consumers. Due to its volume, it might not be possible to provide the mandatory consumer information in a ‘clear and comprehensible’ manner on a single page. Excessively long pages, where consumers would have to scroll down extensively in order to read all content, should be avoided.

Instead, the various elements of pre-contractual information should be provided when they are most relevant during the process of concluding the contract as the consumer moves from one page of the online interface to another. Where needed, information on specific subjects should be layered, with a prominent pointer on the front page leading to the linked page that provides all the details on the respective subject (51).

Additional presentation requirements for distance contracts concluded by electronic means are set out in Article 8(2) of the Directive, as further discussed in section 4.2.4.

3.1.3. Information ‘already apparent from the context’

For on-premises contracts, Article 5 allows traders not to provide information that is ‘already apparent from the context’.

The concept of information ‘already apparent from the context’ is also used in Article 7(2) of the UCPD (52). For example, trader’s geographical address and identity could be considered as ‘obvious or apparent from the context’, as the consumers would normally know the address of a shop or restaurant that they are in.

3.1.4. Information requirements in other EU legislation

The Directive is of cross-cutting nature. It complements the product and sector-specific consumer protection rules, in particular with respect to information requirements.

Pursuant to its Article 3(2) (53), the CRD does not affect the application of information requirements under other sector specific EU legislation. This includes the General Data Protection Regulation (EU) 2016/679 and the ePrivacy Directive 2002/58/EC of the European Parliament and of the Council (54), which are particularly relevant in online sales for issues such as information about data processing and data subjects’ consent to the processing of their personal data, where required.

Furthermore, additional information requirements for electronic communications services are set out in the European Electronic Communications Code (‘EECC’, Directive (EU) 2018/1972) and in the Commission Implementing Regulation (EU) 2019/2243 (55) on the contract summary template.

Article 102(1) of the EECC specifies the information, by reference to Articles 5 and 6 of the CRD and Annex VIII of the EECC, that providers of publicly available electronic communications services should provide before a consumer is bound by a contract or any corresponding offer. The providers of publicly available electronic communications are also obliged to provide consumers with a concise and easily readable contract summary (Article 102(3) of the EECC and Implementing Regulation (EU) 2019/2243). However, the mere provision of the contract summary does not fully satisfy all the pre-contractual information obligations, as provided in Article 102(1) and Annex VIII of the EECC.

Additional information requirements are also set out in the Audiovisual Media Services Directive 2010/13/EU of the European Parliament and of the Council (56), Directive 2009/72/EC of the European Parliament and of the Council (57) for electricity, Directive 2009/73/EC of the European Parliament and of the Council (58) for natural gas etc. (59).

Article 6(8) of the CRD addresses specifically the relationship between the information requirements laid down in this Directive and those contained in the Services Directive 2006/123/EC of the European Parliament and of the Council (60) and the eCommerce Directive 2000/31/EC of the European Parliament and of the Council (61) . First, it specifies that information requirements in these three instruments are complementary. Second, it clarifies that if a provision of these two directives on the ‘content and the manner in which the information is to be provided’ conflicts with a provision of the CRD, the latter shall prevail (62).

3.1.5. Imposition of additional information requirements

According to Article 4 of the CRD: ‘Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive’.

One of the derogations from this full harmonisation approach is Article 5(4), which allows Member States to adopt or maintain additional pre-contractual information requirements for on-premises contracts.

While the information requirements for off-premises and distance contracts are, in principle, exhaustive, at the same time, in accordance with Article 6(8) and Recital 12 of the Directive, Member States can impose additional information requirements in accordance with the Services Directive 2006/123/EC and the eCommerce Directive 2000/31/EC.

The relevant provision of the eCommerce Directive in this respect is Article 5, which requires Member States to ensure that the service provider renders easily, directly and permanently accessible to the recipients of the service and competent authorities at least the information stipulated in that Article. Article 10 of the eCommerce Directive sets out further information requirements regarding the procedure for concluding the contract.

As regards the Services Directive, its Article 22(1) to (4) sets specific requirements for information that providers must make available to service recipients, as well as requirement for clear, unambiguous, and timely communication of that information. Article 22(5) further stipulates that it ‘does not prevent Member States from imposing additional information requirements applicable to providers established in their territory’.

Imposing additional information requirements in accordance with Article 6(8) of the CRD is one of the regulatory choices, about which the Member States must inform the Commission in accordance with Article 29. The Commission publishes this information online (63).

3.1.6. Exemption of ‘day-to-day’ transactions

Article 5(3) allows Member States not to apply the pre-contractual information requirements under Article 5(1) to on-premises contracts ‘ which involve day-to-day transactions and which are performed immediately at the time of their conclusion .

By their nature, these transactions are likely to be for low cost items. One obvious example is the purchase of foodstuffs and beverages intended for immediate consumption – e.g. snacks, take away meals, etc.

Furthermore, Article 5(3) may also apply to certain services and not only to goods. In that context, the second criterion mentioned in Article 5(3), i.e., the requirement for the contract to be performed immediately at the time of its conclusion, is of particular importance.

— Examples of such possible day-to-day services are: shoe cleaning services provided on the street, and cinema services where the ticket is purchased (i.e., where the contract is concluded) immediately before the film is watched.

3.1.7. The binding nature of pre-contractual information

Article 6(5) states the following with regard to the binding nature of pre-contractual information to be provided under Article 6(1): ‘5. The information referred to in paragraph 1 shall form an integral part of the distance or off-premises contract and shall not be altered unless the contracting parties expressly agree otherwise.’

Accordingly, the information provided on the trader’s website should be binding on the parties and, if the trader wishes to alter any of its elements, they should obtain the consumer’s express consent:

— For example, the parties could expressly agree, by exchanging e-mails, on a different time of delivery of the goods than the one specified on the trader’s website;

— However, a provision in the general terms and conditions stating that the trader may derogate from the information provided on the website would not comply with the requirement for express agreement of the parties.

Article 6(5) would not apply to changes to the terms of the contract after its conclusion. When such changes are based on the terms of the contract, the Unfair Contract Terms Directive (64) will be relevant.

3.1.8. Additional language requirements

Under Article 6(7) Member States may impose language requirements regarding the contractual information in off-premises/distance contracts (65).

If this regulatory choice has been exercised, the relevant requirements, for example, to provide the information in the official language of the Member State concerned would apply to cross-border traders, subject to the provisions of Regulation (EC) No 593/2008 of the European Parliament and of the Council (66) on the law applicable to contractual obligations (Rome I Regulation). Its Article 6 provides that, if the trader carries out its activities in the country of the consumer’s habitual residence or if it directs such activities to that country or to several countries including that country, the law applicable to the contract is that of the country in which the consumer is habitually resident.

If the parties have chosen a different law, that choice cannot deprive the consumer of the protection afforded by the mandatory provisions of the consumer’s country of residence. Therefore, also in this situation, if the trader directs its activity to consumers in a Member State that has imposed language requirements under Article 6(7) of the CRD, the trader has to provide consumers with contractual information in the language required by that Member State, if that language obligation is considered as mandatory ‘contractual obligation’ in accordance with the national law.

The concept of ‘directing’ one’s commercial or professional activities to the country of the consumer was addressed by the CJEU in joined cases C-585/08 and C-144/09 Peter Pammer and Hotel Alpenhof GmbH. This judgment sets out a number of criteria for establishing whether a website is ‘directed’ at a specific Member State, such as the use of different languages or currencies on the website (67).

It should be noted that this regulatory option under the CRD is complementary to sector- and product-specific Union laws, which enable Member States to set language requirements concerning the warnings or instructions regarding, for example, toys (68) or radio equipment (69). In addition, Directive (EU) 2019/771 of the European Parliament and of the Council (70) enables setting language requirements regarding commercial guarantees for goods.

3.1.9. Burden of proof

Since the trader’s failure to provide specific information required by the Directive leads to various sanctions provided under the Directive (in addition to sanctions that may apply under national laws), Article 6(9) contains a very important provision, which stipulates that with respect to distance and off-premises contracts ‘As regards compliance with the information requirements laid down in this Chapter, the burden of proof shall be on the trader’.

Without excluding the possibility of proving facts by other means, the trader’s case would clearly become weaker if the required information is missing from the confirmation of the contract on a durable medium, which under Articles 7(1)–(2) or 8(7) (discussed in section 4.4) always has to include the information provided for in Article 6(1), unless already provided on a durable medium.

3.2. Common requirements for on-premises and distance/off-premises contracts

3.2.1. Main characteristics

Article 5(1)(a) and 6(1)(a) ‘the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services’

Although this information requirement expressly refers to ‘goods and services’, by virtue of Article 5(2) and 6(2) it also applies to public utilities and online digital content.

The same obligation is imposed by Article 7(4) of the UCPD that lays down the information requirements for the ‘invitation to purchase’. Accordingly, for choosing the main characteristics to be communicated to the consumer, the traders should apply the same approach as for the purposes of the UCPD, i.e. inform about those characteristics that consumers need to make an informed purchasing decisions. Information about the main characteristics for goods may be available from their packaging or labelling that the consumer can consult. More complex goods may require the communication of additional information to establish their main characteristics.

In particular, all product characteristics and restrictive conditions that the average consumer will not normally expect from the given category or kind of good or service must be communicated to consumers, as those are especially likely to affect their transactional decisions (71).

For all contracts where the consumer provides personal data, irrespective of whether payment is involved or not, the trader must inform the consumer about the purposes of processing at the time when the personal data are obtained.

3.2.2. Trader’s identity and contact details

Article 5(1) (b) the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number; Article 6(1) (b) the identity of the trader, such as his trading name; (c) the geographical address at which the trader is established as well as the trader’s telephone number and email address; in addition, where the trader provides other means of online communication which guarantee that the consumer can keep any written correspondence, including the date and time of such correspondence, with the trader on a durable medium, the information shall also include details of those other means; all those means of communication provided by the trader shall enable the consumer to contact the trader quickly and communicate with him efficiently; where applicable, the trader shall also provide the geographical address and identity of the trader on whose behalf he is acting; (d) if different from the address provided in accordance with point (c), the geographical address of the place of business of the trader, and, where applicable, that of the trader on whose behalf he is acting, where the consumer can address any complaints;

3.2.2.1. Trader’s identity

In addition to the CRD provisions, Article 7(4)(b) of the UCPD stipulates that the information about the geographical address and identity of the trader is considered as material information in the case of an invitation to purchase. With respect to on-premises contracts, such information may be apparent from the context (see also section 3.1.3).

In off-premises/distance contracts, the CRD requires the trader, who acts on behalf of another trader, to indicate also the identity and geographical address of that latter trader. Also online marketplaces, even where they are mere intermediaries and not ‘acting on behalf’ of another trader, must take steps to ensure that the consumer is duly informed about the identity of the actual trader offering the goods or services concerned, on the basis of the information provided by the trader itself. In fact, if the failure by the marketplace to inform about the identity of the actual trader creates the impression that the marketplace is the actual trader, this may result in the liability of the marketplace for the obligations of the trader.

In case C-149/15 Wathelet (72) the Court dealt with the responsibility of an off-line intermediary (car garage) for the conformity of the goods sold to consumers under the former Consumer Sales of Goods Directive 1999/44/EC of the European Parliament and of the Council (73). The Court stated that, whilst Directive 1999/44/EC does not address the issue of liability of intermediaries vis-a-vis consumers, ‘it does not in itself preclude the possibility that the concept of ‘seller’, within the meaning of Article 1(2)(c) of Directive 1999/44/EC, can be interpreted as covering a trader who acts on behalf of a private individual where, from the point of view of the consumer, he presents himself as the seller of consumer goods under a contract in the course of his trade, business or profession. That trader could create confusion in the mind of the consumer by giving him the false impression that he is acting as the seller-owner of the goods ’ (74).

The Court also stated that ‘The degree of participation and the amount of effort employed by the intermediary in the sale, the circumstances in which the goods were presented to the consumer and the latter’s behaviour may, in particular, be relevant in that regard in order to determine whether the consumer could have understood that the intermediary was acting on behalf of a private individual ’ (75).

These Court’s conclusions concerning the liability of the offline intermediary for the conformity of goods could also be relevant for other intermediaries and other obligations of traders under EU law, including in an online context. In particular, online marketplaces could be found liable for the trader’s obligations regarding pre-contractual information or contractual performance under the CRD where, from the point of view of the consumer, they present themselves as traders under the (proposed) contract.

In case C-149/15 Wathelet, the Court stressed that ‘it is essential that consumers are aware of the identity of the seller, and in particular whether he is acting as a private individual or as a trader, so that they are able to benefit from the protection conferred on them by the directive .’ (76). However, even where the actual supplier is also a trader and the consumer would not be deprived of his or her rights, the consumer may not have concluded the contract if the identity of the actual trader was known. In particular, the consumer could have concerns about, for example, the reliability of such trader and the possibility of enforcing consumer rights towards it.

A failure to provide information on the trader’s identity, or the provision of incorrect data, would constitute a breach of the CRD. It could also constitute a misleading practice under the UCPD, to the extent that it affects the consumer’s transactional decision. There are also sectoral provisions in EU law that strengthen this requirement. For example, in the case of online sale of medicinal products (77) blurring the distinction between marketplace and retailer is strictly prohibited. A marketplace offering medicinal products on the EU market should ensure that consumers can verify that the trader has the relevant authorisations and is operating in compliance with the law (78).

The mode of performance of the contract involving a third party trader does not affect the rights and obligations regarding the contract ensuing from the CRD. For example, in the ‘dropshipping’ business model the trader does not keep in stock certain goods that it sells but instead, when ordered by a consumer, the trader purchases them from a third party and has them shipped directly to the customer.

However, if the trader only processes the order as an intermediary and then forwards it to another trader for fulfilment in that second trader’s own name, then as per the Wathelet case, the first trader could be held liable towards the consumer where, from the point of view of the consumer, that trader presents himself as the seller of consumer goods under the contract. In order to avoid such liability the trader must clearly inform the consumer that it acts as an intermediary and provide information about the identity of the actual seller in a prominent manner (79).

In this respect it should be noted that Article 6a(b), introduced by Directive (EU) 2019/2161, contains a specific additional requirement for the providers of online marketplaces to inform consumers about the status of the third party offering the goods, services or the digital content on the basis of the information provided by the third party (see section 3.4.2).

3.2.2.2. Means of communication

As regards distance and off-premises contracts, Article 6(1)(c), as amended by Directive (EU) 2019/2161, requires the trader to provide the consumer with information about the following means of communication as part of the pre-contractual information:

— The trader’s geographical address, telephone number and email address; and

— Where available, other online means of written communication, which allow keeping the content and date and time of the correspondence on a durable medium.

‘Durable medium’ is defined in Art 2(10) CRD as ‘any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored’ (see also section 4.4).

For example, as far as messaging applications are concerned, some of them allow the sender, such as the trader in the B2C context, to delete, also from the recipient’s device, either by default or manually, the messages that it has sent within a certain (short) timeframe after their delivery. Accordingly, these means of communication do not effectively enable the consumer to store the message received. The recipient might be able to save or back up his/her messages but this would require additional technical skills and knowledge that cannot be expected from the average consumer. Accordingly, an individual assessment for each messaging application will be needed to establish whether it complies with the set criteria, also taking into account the continuous development of these applications.

The Court specifically noted in case C-649/17 Amazon EU that the possibility, for consumers, to contact traders quickly and to communicate with them efficiently is of fundamental importance for ensuring and effectively implementing consumer rights (80). Consequently, any means of communication used by the trader must be capable of satisfying the criteria of direct and effective communication.

In that decision the Court confirmed that Article 6(1)(c) does not prohibit the use by the trader of other means of communication that ensure direct and effective communication, in addition to those listed in the provision (81).

This interpretation remains relevant also after the amendments introduced by Directive (EU) 2019/2161. Whilst the trader must inform the consumer, before the conclusion of the contract, about the means of communication listed and complying with the criteria set out in Article 6(1)(c), the trader is not prevented from making available also alternative means of communication. These can be, for example, automated voice assistants or means of online written communication (chatbots) that do not have the features specified in Article 6(1)(c). The general rules of the UCPD will apply to such additional means. In particular, traders should clearly and timely inform consumers whether these alternative means allow consumers to keep track of the written correspondence, including of the date and time.

The trader must also ensure that any online means of communication, of which the consumer has been informed prior to the conclusion of the contract (and in the contract confirmation) in accordance with Article 6(1)(c), are easily accessible on the trader’s interface. Any additional means of communication should not be presented and promoted in a way that makes it difficult for consumers to access and use the means of communication provided in accordance with Article 6(1)(c).

The purpose of providing means of communication is to enable the consumer to contact the trader quickly and efficiently. This implies that arrangements should be made to ensure, for example, that telephone calls are answered during office hours and that email communications are answered promptly.

3.2.2.3. Place of establishment

The concept of ‘establishment’ in this information requirement is the same as the one used, for example, in the Services Directive 2006/123/EC where it is defined (Article 4) as ‘the actual pursuit of an economic activity, as referred to in Article 43 of the Treaty, by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out’. Recital 37 of that Directive explains that ‘[…] Where a provider has several places of establishment, it is important to determine the place of establishment from which the actual service concerned is provided […]’.

The same approach can be used to determine the place whose geographical address should be provided under this Directive. Since the information about the ‘geographical’ address is required, it should refer to a physical location:

— For example, it is not sufficient to merely provide the PO Box number as the trader’s address.

3.2.2.4. Place of business

The ‘place of business’ should mean the place where the essential decisions concerning the trader’s general management are taken and where the functions of its central administration are carried out. This conclusion follows, for example, from the judgment of the Court in C-73/06 Planzer:

‘Determination of a company’s place of business requires a series of factors to be taken into consideration foremost amongst which are its registered office the place of its central administration the place where its directors meet and the place usually identical where the general policy of that company is determined. Other factors such as the place of residence of the main directors the place where general meetings are held the place where administrative and accounting documents are kept and the place where the company’s financial and particularly banking transactions mainly take place may also need to be taken into account.’ (82).

3.2.3. Price

Article 5(1) (c) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable; Article 6(1) (e) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be reasonably calculated in advance, the manner in which the price is to be calculated shall be provided;

The underlined parts of Article 6(1)(e) represent the additional requirements for pricing information applicable only to distance/off-premises contracts compared to those in Article 5(1)(c) for on-premises contracts. In particular, for distance/off-premises contracts specific information is required for subscriptions and contracts of indeterminate duration.

If the product (or one of the products) provided under a contract of indeterminate duration or under a subscription is charged at a fixed rate, information about the total cost per billing period and about the total monthly costs should be provided.

— For example, internet or audiovisual media services subscriptions are typically charged at a fixed rate per month/bi-monthly/quarterly irrespective of usage. Therefore, the monthly cost and, if the billing period is different, the costs per billing period would have to be provided to the consumer who wishes to conclude a subscription online or off-premises.

If a contract covers or includes a product for which the total cost cannot be calculated in advance, the trader should inform the consumer of the way, in which these variable costs are calculated:

— For example, for voice telephony services whose cost depends on actual usage, the trader should refer the consumer to a detailed price list for telephone calls (83).

Under Article 6(6) for off-premises and distance contracts, the consumers do not have to bear any additional charges or costs of which they have not been informed by the trader. This reflects the obligation of the trader to inform the consumer of the full price, including all applicable taxes, duties, and additional charges, in particular any import VAT, customs duties, customs clearance etc. applicable to purchases from non-EU traders