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Brussels, 07.02 1996 
COM(96)36 final COD 411 
COMMISSION OPINION 
pursuant to Article 189b(2)(d) of the EC Treaty on 
the European Parliament's amendments to the Council's common 
position concerning the 
proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
on the protection of consumers in respect of distance contracts 
AMENDING THE COMMISSION PROPOSAL 
pursuant to Article 189a(2) of the EC Treaty 

I. BACKGROUND (CO-DECISION PROCEDURE) 
On 7 April 1992 the Commission presented a proposal for a Directive and adopted 
a recommendation concerning the protection of consumers in respect of contracts 
negotiated at a distance (COM(92) 11 of 20.5.92 - SYN 411) OJ No C 156, 
23.6.92. 
The proposal was transmitted to the Council on 9.6.92 and to the Parliament by 
Council on 17.6.92. 
Opinion of the Economic and Social Committee: 24.11.92 
Opinion of Parliament at first reading - 26.0.93. Parliament adopted 35 
amendments. The Commission accepted 30 of them and integrated them into its 
amended proposal. 
Amended proposal: COM(93) 396 of 7.10.93. OJ No C 308, 15.11.93 
Adoption of the common position: 29.6.95. OJ No C 288, 30.10.95 
Commission opinion on the common position: 7.7.95 (Document SEC (95) 1158 
COD 411) 
Parliament vote, second reading: 13.12.95 
31 amendments adopted. 
II. SUBJECT OF THE PROPOSAL 
With the development of new technologies (television, fax, minitel) traditional "mail order 
selling" has become "distance selling". The directive provides a legal framework for all 
these selling techniques. 
The proposal is a framework directive covering products, services and all distance 
communication techniques. It is accompanied by a recommendation (ref 92/295/EEC) 
urging professionals to satisfy the minimum requirements of the directive in the form of 
codes of practice. 
Ill COMMISSION OPINION ON THE EUROPEAN PARLIAMENT'S AMENDMENTS 
Amendments accepted by the Commission 
The Commission can accept 21 of the 31 amendments adopted by Parliament. The 
numbering used is that of Parliament's final document (EP 165 649). The amendments 
that are not mentioned (6, 7, 17, 18, etc.) are those rejected by Parliament. 
Amendment No 1 (recital 12) 
This amendment contains three different ideas: 
The use of the right of withdrawal should be free of charge for consumers. This 
part of the recital corresponds to Parliament's amendment 15. 
Hence the Commission proposes maintaining the first part of this amendment. 
The consumer's customary rights concerning defective products. This part of the 
recital corresponds to amendment 21. The Commission does not accept 
amendment 21 (see explanation below) and hence has not accepted this part of the 
recital. 
Method of calculating the periods. The point of such harmonisation is debatable. 
Hence the Commission does not accept this third part of the amendment. 
Amendment No 3 (new recital) 
This recital introduces amendment 35. 
Amendment No 4 (new recital) 
This recital introduces amendment 36. 
Amendment No 5 (Article 2.1) 
This amendment introduces an important detail concerning the scope of the directive: the 
directive's provisions apply to the overall contract and not to the successive operations 
deriving from it. 
The Commission accepts this amendment in a slightly different wording than the one in 
the amended proposal. 
Additional comment concerning this article: the definitions of supplier are different in the 
English and French texts (reference to commercial capacity in the English version). 
Amendment No 8 (Article 3.1. fourth indent) 
This amendment abolishes the exemption provided for in the common position. Thus it 
reintroduces contracts concerning immovable property into the scope of the Directive. 
Amendment No 9 (Article 3.2) 
Parliament amended the introductory part of Article 3(2) (Articles 4 and 7.2). The idea 
of this amendment is that the particulars provided for in Article 4 should also be given 
to consumers in the case of tourist services. The Commission supports this idea. This is 
why a new Article 3.3 has been introduced which covers tourist services. To show clearly 
that there is no cooling - off period in this domain, subsection 4.1.f has also been 
amended. 
However the Article's wording also concerns the other exemption contained in this 
paragraph, i.e. supplies delivered by regular roundsmen. The Commission considers that 
it is not possible to lay down the information requirements contained in Article 4 for this 
very specific form of distribution. 
As regards supplies by regular roundsmen, it is proposed that the text of the common 
position be simplified and that the exact wording of the Directive on contracts away from 
business premises be used. 
Amendment No 12 (Article 4.1.i) 
This amendment provides for consumer information in regard to long-term contracts The 
Commission accepts the amendment, but in the wording already contained in Article 5 
of the common position. 
Amendment No 13 (Article 5.1) 
The consumer must receive "written confirmation" of the various particulars required for 
the proper performance of the contract. The discussions on this point show that the term 
"written" is not always interpreted in the same way: if a document is provided by 
electronic mail and stored in the memory of the consumer's PC, is this a written 
document9 On the other hand, if this information appears on the computer screen but is 
not stored in memory (as is the case with the French minitel) the consumer does not have 
this information permanently at his disposal. 
In order to eliminate this ambiguity between "written" and "paper medium", the 
Commission proposes inserting the notion of "durable medium" not at the end of the 
paragraph 1 but in the body of this paragraph. 
Amendments 15, 16, 41 and 42 (Article 6.1, 6.2, 7 2) 
These amendments provide that the consumer shall be granted a cooling off period of 
seven days calculated as working days, that he may not charged supplementary costs and 
that in the case of advance payments, reimbursement should be made within 30 days. 
Amendment No 37 (Article 6.3 - second indent) 
This amendment is a rewording of the text of the common positions. 
Amendment No 24 (Article 7.3) 
This amendment introduces the idea of the consumer's prior consent before receiving a 
substitute product. This notion of substitute product (a product which is slightly different 
to one ordered) is controversial. 
Amendment No 29 (Article 10.2) 
This amendment simplifies the text of the common position by removing the reference 
to "individual communications". This notion is too vague to be operative. Is a mailshot 
in a few million copies or a telephone call made at random an individual communication9 
Amendments No 30 (Article 11.2) and 31 (Article 11.3a) 
These amendments render mandatory the provisions of these two Articles: actions brought 
by consumer organisations at national level and the burden of proof. 
Amendment No 32 (Article 13) 
This amendment simplifies the common position's provision by removing a long list 
which would inevitably generate practical problems of application. It is wiser to stick to 
general principles. 
Amendment No 33 (Article 15.1) 
The amendment proposes reducing the time limit for transposition to two years. Since the 
Commission's proposal was published in 1992, six years will have elapsed (mid-1998) 
between publication of the proposal and its transposition. 
Amendment No 35 (Article 15a) 
The idea behind this amendment is to stipulate the provision of information on existing 
codes of practice in the domain of distance selling contracts. This amendment was already 
presented at the first reading and taken up by the Commission in its amended proposal. 
It was not accepted by Council, notably because of the wording. The Commission accepts 
this amendment but with a different wording, in order to clarify the distribution of roles 
in the dissemination of the information. 
Amendment No 36 (Article 15b) 
This amendment is designed to establish out-of-court systems for dispute resolution by 
trade and professional associations. The Commission accepts the amendment but in a 
different wording (it is not possible to prescribe that the "Member State shall draw up a 
complaints system on a self-regulatory basis.") 
Amendments rejected by the Commission 
Amendment No 2 (recital 16) 
This amendment states that codes of practice are of major importance in the 
interests of consumer protection. This grandiloquent wording adds nothing to the 
substance of the text of the recital, which defines the relationship between the 
Directive and the Recommendation. 
Amendment No 10 (Article 4.1a) 
This amendment proposes adding the supplier's address to the list of particulars 
which must be communicated to the consumer before conclusion of the contract. 
The Commission had already rejected this amendment at the first reading. This 
requirement is very impracticable for certain technologies and, moreover, is not 
essential for consumers. When the consumer orders a product via his PC (using 
email) does he have to know the precise address of the supplier? 
Amendment No 11 (Article 4.2) 
This amendment is designed to protect persons who are legally unable to give 
their consent. This provision is part of Belgian law and was proposed by 
Parliament at first reading. The Commission accepted this amendment in its 
amended proposal. However, Council's work showed that this provision touched 
an important aspect of civil law in the Member States: the capacity to conclude 
a contract. In application of the subsidiarity principle, the Commission considers 
that this matter should be left to each Member State. 
Amendment No 14 (Article 5.1 - second indent) 
The purpose of Article 5.1, indent two, is to inform the consumer of the supplier's 
place of business to which the consumer may address any complaints. This is one 
item of information which the supplier must provide to the consumer. The 
amendment simply indicates that this place of business must be the "most 
appropriate". This wording adds nothing to the article's substance and the text of 
the common position is clearer. 
Amendment No 19 (Article 6.3 - fourth indent) 
This article provides that there shall be no cooling off period for audio or video 
recordings, disks or computer software. The amendment proposes adding CD-
ROMs and CD-Is. The amendment is unacceptable for at least two reasons: 
CD-Is and CD-ROMs are compact computer disks and are therefore 
covered by the generic definition provided by the article 
if CD-Js or CD-Ks are invented tomorrow, they will not be covered by 
this exemption. 
Amendment No 20 (Article 6.3 - fifth indent) 
This amendment proposes that the cooling off period shall not apply to books 
taken out of their original wrapping. It seems that book selling systems (book 
clubs) already allow the consumer to have a look. Hence accepting this 
amendment would be a step backward by comparison with existing trade 
practices. 
Amendment No 21 (Article 6a new) 
The purpose of the amendment is to explain that the cooling off period applies 
without prejudice to the consumer's statutory rights if the product is defective or 
damaged. This amendment was adopted by Parliament at first reading and 
accepted by the Commission in its amended proposal. However the Commission 
does not propose taking it up again. This is because Council's work showed that 
this point does not concern distance contracts specifically but, rather, general rules 
governing the guarantee and/or after-sales services. The Council will be examining 
this subject in the context of the follow-up to the Green Paper on guarantees. 
Hence it would not be wise to address this issue at this stage. 
Amendment No 25 (Article 7a new) 
This amendment indicates that the Member States must observe the provisions of 
Directive 89/552/EEC (television without frontiers). This adds nothing to the 
substance, since Member States are bound by all other directives as a matter of 
course. 
Amendment No 40 (Article 10.1) 
This amendment concerns telephone calls. It stipulates that the professional must 
provide his identity and his objectives at the beginning of the telephone 
conversation. 
By adopting this amendment, Parliament clearly indicated that it was in favour of 
an opt-out system (as regards telephone solicitations). 
The Commission considers that it is pointless to add this amendment to the 
common position: 
Article 4.2 already states: 
"The information referred to in paragraph 1, the commercial purpose of 
which must be made clear, shall be provided in a clear and 
comprehensible manner in any way appropriate to the means of 
communication at a distance used ..." 
This means that in the case of telephone calls the caller must indicate his 
identity (Article 4(1 )(a)) and the reasons for his call (Article 4(2)). 
Article 10.2 also states that telephones can only be used provided there is 
no clear objection from the consumer. 
The wording of this amendment (use of the term "prior consent") would 
only make it more difficult to understand the directive's other provisions. 
Amendment No 34 (Article 15(4)) 
The amendment proposes that the Commission submit a report two years after the 
date of transposition. The Commission considers that this time limit is too short 
and that it would be preferable to abide by the more traditional period of three 
years. 
Amended proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
on the protection of consumers in respect of distance contracts 
(PRESENTED BY THE COMMISSION PURSUANT TO 
ARTICLE 189a(2) OF THE EC TREATY) 
Council common position Second amended proposal for the 
Commission 
Recital 12 Recital 12 
12. Whereas the consumer is not able in 
concrete terms to see the product or 
ascertain the service provided before 
concluding the contract: whereas 
provision should be made, where it is 
appropriate, for a right to withdraw from 
the contracts, whereas it is for the 
Member States to determine the other 
conditions and arrangements following 
exercise of the right of withdrawal; 12. Whereas the consumer is not able in 
concrete terms to see the product or 
ascertain the service provided before 
concluding the contract; whereas the 
consumer should be offered the 
possibility of cancelling the contract 
after returning the product or service; 
whereas if this right is to be more than 
formal the costs borne by the consumer 
when exercising it must be limited to the 
charges for return; 
Recital 16 a (new) 
16 a. Whereas it is important, in the 
interests of optimum protection of 
consumers, that they be informed in a 
satisfactory manner about the provisions 
of this Directive and about the existence 
and content of codes of practice in this 
domain; 
Recital 17a (new) 
/ 7a. Whereas it is important, in order to 
ensure that consumers are protected, to 
establish an efficient system for handling 
cross-border complaints; 
Article 2. point 1 Article 2. point 1 
1) "distance contract" means any contract 
concerning goods or services concluded 
between a supplier and a consumer as a 
consequence of an organised distance 
sales or service-provision scheme of the 
supplier, using, for this contract, 
exclusively one or more means of 
communication at a distance up to the 
conclusion of the contract and including 
the conclusion on the contract itself; 1) "distance contract" means any contract 
concerning goods or services concluded 
between a supplier and a consumer as a 
consequence of an organised distance 
sales or service-provision scheme of the 
supplier, using, for this contract, 
exclusively one or more means of 
communication at a distance up to the 
conclusion of the contract and including 
the conclusion on the contract itself; 
where a contract has to be fulfilled by 
successive acts of performance or a 
series of separate operations over a 
period of lime the provisions of this 
Directive shall apply only to the overall 
contract, when this has been negotiated 
at a distance. 
Article 3( I )(fourth indent) Article 3(1)(fourth indent) 
concluded for the construction and sale 
of immobile property or relating to other 
immobile property rights, except for 
rental. Deleted 
Article 3(2) Article 3(2) and (3) 
2. Articles 4, 5 and 6 and Article 7(1) 
and 2 shall not apply: 2. Articles 4, 5, and 6 and Article 7(1) 
shall not apply: 
to contracts for the supply of 
foodstuffs, beverages or other 
goods intended for current 
consumption supplied to the 
home of the consumer, to his 
residence or to his workplace by 
regular roundsmen. 
contracts for the provision of 
services with respect to 
accommodation, transport, 
catering or leisure, where the 
supplier undertakes, when the to contracts for the supply of 
foodstuffs, beverages or other 
goods intended for current 
consumption supplied by regular 
roundsmen. 
3. Articles 5, 6 and Article 7(1) 
shall not apply to: 
contracts for the provision of 
services with respect to 
accommodation, transport, 
catering or leisure, where the 
10 
contract is concluded, to provide 
these services at a specific date 
or within a specific period. 
Article 4(1) 
1. In good time prior to the conclusion 
of any distance contract, the consumer 
shall be provided with the following 
information: supplier undertakes, when the 
contract is concluded, to provide 
these services at a specific date 
or within a specific period. 
Article 4(1) 
1. In good time prior to the conclusion 
of any distance contract, the consumer 
shall be provided with the following 
information: 
a) the identity of the supplier; 
b) the main characteristics of the 
goods or services 
c) the price of the goods or services 
including all taxes; 
d) delivery costs, where appropriate; 
e) the arrangements for payment, 
delivery or performance; 
f) the existence of a right of 
withdrawal, except in the cases 
referred to in Article 6(3); 
g) the cost of using the means of 
communication at a distance 
where it is calculated at other 
than the basic rate; 
h) the period for which the offer or 
the price remains valid. a) the identity of the supplier; 
b) the main characteristics of the 
goods or services 
c) the price of the goods or services 
including all taxes; 
d) delivery costs, where appropriate; 
e) the arrangements for payment, 
delivery or performance; 
f) the existence of a right of 
withdrawal, except in the cases 
referred to in Article 3(3) and 
Article 6(3); 
g) the cost of using the means of 
communication at a distance 
where it is calculated at other 
than the basic rate; 
h) the period for which the offer or 
the price remains valid 
i) the conditions under which the 
contract may be annulled when it 
is one of indefinite duration or of 
a duration of more than one 
year. 
1.1 
Article 5(1) first sentence Article 5(1) first sentence 
1 The consumer must receive written 
confirmation of the information referred 
to in Article 4(1 )(a) to (f), in good time 
during the performance of the contract 
and at the latest at the time of delivery, 
where goods are concerned, unless the 
information has already been given to 
the consumer prior to conclusion of the 
contact in writing or on another durable 
medium available to him. 1. The consumer must receive written 
confirmation or confirmation in another 
durable medium available to him of the 
information referred to in Article 4(1 )(a) 
to (f), in good time during the 
performance of the contract and at the 
latest at the time of delivery, where 
goods are concerned, unless the 
information has already been given to 
the consumer prior to conclusion of the 
contact in writing or on another durable 
medium. 
Article 6(1) first sentence 
1. For any distance contract the 
consumer shall have a period of not less 
than seven days in which he may 
withdraw from the contract without 
penalty, without giving any reason. Article 6(1) first sentence 
1. For any distance contract shall have a 
period of not less than seven working 
days in which he may withdraw from the 
contract without penalty, without giving 
any reason. The only costs payable shall 
be the direct return costs where 
appropriate. 
Article 6(1) last sentence Article 6(1) last sentence 
If the information referred to in Article 5 
is supplied within this three-month 
period, the consumer shall from that 
moment have available the seven-day 
period referred to in the first paragraph. 
Article 6(2) If the information referred to in Article 5 
is supplied within this three-month 
period, the consumer shall from that 
moment have available the seven-day 
working period referred to in the first 
paragraph. 
Article 6(2) 
2. Where the right of withdrawal has 
been exercised by the consumer pursuant 
to this Article, the supplier shall be 
obliged to reimburse the sums paid by 
the consumer. Such reimbursement must 
be carried out as soon as possible. 2. Where the right of withdrawal has 
been exercised by the consumer pursuant 
to this Article, the supplier shall be 
obliged to reimburse the sums paid by 
the consumeriez of charge, except for 
direct return changes, where 
appropriate. Such reimbursement must 
be carried out as soon as possible and in 
any case within 30 days. 
12 
Article 6(3) second indent Article 6(3) second indent 
- for the supply of goods or services the 
price of which is dependent on 
fluctuations in the financial market 
which cannot be controlled by the 
supplier. 
Article 7(2) 
2. Where a supplier fails to perform his 
side of the contract on the grounds, that 
the goods or services ordered are 
unavailable, the consumer must be 
informed of this situation and must be 
able to obtain a refund of any sums he 
has paid as soon as possible. 
Article 7(3) 
3. Nevertheless Member States may lay 
down that the supplier may provide the 
consumer with goods or services of 
equivalent quality and price provided this 
possibility was provided for prior to 
conclusion of the contract or when the 
contract was concluded or when the 
consumer was informed of the 
unavailability of his order. The cost of 
returning the goods following exercise of 
the right of withdrawal is, in this case, 
the liability of the supplier, and the 
consumer must be informed of this. In 
such cases the supply of goods or 
services may not be deemed to constitute 
inertia selling within the meaning of 
Article 9. for transactions concerning movables and 
other goods or services the price of 
which is influenced by the fluctuations in 
the financial market and/or exchange 
rales and/or prices derived from them 
which cannot be controlled by the 
supplier 
Article 7(2) 
2. Where a supplier fails to perform his 
side of the contract on the grounds, that 
the goods or services ordered are 
unavailable, the consumer must be 
informed of this situation and must be 
able to obtain a refund of any sums he 
has paid as soon as possible, and, in any 
case, within 30 days. 
Article 7(3) 
3. Nevertheless, it may be stipulated that 
the supplier must provide the consumer, 
with his prior consent, with goods or 
services of equivalent quality and price 
provided this possibility was provided 
for prior to conclusion of the contract or 
when the contract was concluded or 
when the consumer was informed of the 
unavailability of his order. The cost of 
returning the goods following exercise of 
the right of withdrawal is, in this case, 
the liability of the supplier, and the 
consumer must be informed of this. In 
such cases the supply of goods or 
services may not be deemed to constitute 
inertia selling within the meaning of 
Article 9. 
13 
Article 10(2) Article 10(2) 
2. Member States shall ensure that 
means of communication at a distance, 
other than those referred to in 
paragraph 1, which allow individual 
communications may be used only where 
there is no clear objection from the 
consumer. 2. Member States shall ensure that 
means of communication at a distance, 
other than those referred to in 
paragraph 1, may be used only where 
there is no clear objection from the 
consumer. 
Article 11(2) 
2. The means referred to in paragraph 1 
may include provisions whereby public 
bodies or their representatives or 
consumer organisations having a 
legitimate interest under national law in 
protective consumers or professional 
organisations having a legitimate interest 
may take action under national law 
before the courts or before the competent 
administrative bodies to ensure that the 
provisions of this Directive are applied. Article 11(2) 
2. The means referred to in paragraph 1 
shall include provisions whereby public 
bodies or their representatives or 
consumer organisations having a 
legitimate interest under national law in 
protective consumers or professional 
organisations having a legitimate interest 
may take action under national law 
before the courts or before the competent 
administrative bodies to ensure that the 
provisions of this Directive are applied. 
Article ll(3)(a) Article 11 (3 )(a) 
3. a) Member States may stipulate that 
the burden of proof concerning the 
existence of prior information, written 
confirmation or compliance with time-
limits or the consumer's consent can be 
placed on the supplier. 3. a) Member States shall stipulate that 
the burden of proof concerning the 
existence of prior information, written 
confirmation or compliance with time-
limits or the consumer's consent can be 
placed on the supplier. 
14 
Article 13 Article 13 
1. The provisions of this Directive shall 
apply in so far as there are not 
particular provisions in rules of 
Community law governing certain types 
of distance contracts in their entirety. 
2. Where specific Community rules on 
goods or services contain provisions 
governing aspects concerned with: 
information prior to conclusion 
of the contract, 
written confirmation of the prior 
information, 
right of withdrawal, 
inertia selling, 
judicial or administrative redress, 
restrictions on the use of means 
of communication at a distance, 
payment by card, 
performance of the contract, 1. The provisions of this Directive shall 
be without prejudice to the application of 
specific rules to certain techniques or to 
certain goods or services governed by 
other Community rules. 
2. Where a specific Community rules 
contain provisions governing only 
certain aspects of the marketing of goods 
and services, these provisions shall apply 
to these specific aspects of the contract. 
such provisions shall apply solely to 
distance contracts in respect of the 
aspects covered. 
Article 15(1) Article 15(1) 
1. Member States shall bring into force 
the laws, regulations and administrative 
provisions necessary to comply with this 
Directive no later than three years after 
it enters into force. They shall forthwith 
inform the Commission thereof. 1. Member States shall bring into force 
the laws, regulations and administrative 
provisions necessary to comply with this 
Directive no later than two years after it 
enters into force. They shall forthwith 
inform the Commission thereof. 
15 
Article 15(4) Article 15(4) 
4. No later than six years after the entry 
into force of this Directive the 
Commission shall submit a report to the 
European Parliament and to the Council 
on the implementation of this Directive, 
accompanied if appropriate by a proposal 
for the revision of this Directive. 4. No later than five years after the entry 
into force of this Directive the 
Commission shall submit a report to the 
European Parliament and to the Council 
on the implementation of this Directive, 
accompanied if appropriate by a proposal 
for the revision of this Directive. 
Article ?5a, (new) 
Consumer information 
Member States shall ensure that: 
- consumers are informed of the 
provisions of this Directive; 
the trade and professional 
organisations inform consumers 
of the existence and content of 
their codes of practice. 
Article 15t> (new) 
CQTPPtoMs system 
Member States shall encourage branch 
and professional organisations to prepare 
complaints systems on the basis of self-
regulation. 
16 
BSN 0254-1475 
COM(%) 36 final 
S 
EN m 
Catalogue number : CB-CO-96-041-EN-C 
ISBN 92-77-99969-1 
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