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
Date: 1996-02-07
Institutions: European Commission
Subjects: consumer information, consumer protection, contract, distance selling, sales promotion

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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. 

the 
In  order  to  eliminate  this  ambiguity  between  "written"  and  "paper  medium", 
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 
this 
clubs)  already  allow  the  consumer 
to  have  a  look.  Hence  accepting 
trade 
amendment  would  be  a  step  backward  by  comparison  with  existing 
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 
telephone 
provide  his  identity  and  his  objectives  at  the  beginning  of  the 
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 
in  a  clear  and 
which  must  be  made  clear,  shall  be  provided 
the  means  of 
to 
in  any  way  appropriate 
comprehensible  manner 
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 
Commission 

amended 

proposal 

for 

the 

Recital  12 

Recital  12 

the 

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

is  for 

it 

the  contract;  whereas 
be 
should 

12.  Whereas  the  consumer  is  not  able  in 
concrete  terms  to  see  the  product  or 
the  service  provided  before 
ascertain 
the 
concluding 
the 
consumer 
offered 
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) 

of  optimum  protection 

in  the 
16  a.  Whereas  it  is  important, 
of 
interests 
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, 
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; 

using, 

this 

for 

this 

using, 

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, 
contract, 
for 
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: 

intended 

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

for 
supplied 

contracts  for  the  provision  of 
services  with 
to 
a c c o m m o d a t i o n, 
transport, 
catering  or  leisure,  where  the 
the 
supplier  undertakes,  when 

respect 

10 

to  contracts  for  the  supply  of 
foodstuffs,  beverages  or  other 
goods 
current 
consumption  supplied  by  regular 
roundsmen. 

intended 

for 

Articles  5,  6  and  Article  7(1) 

3. 
shall  not  apply  to: 

contracts  for  the  provision  of 
services  with 
to 
a c c o m m o d a t i o n, 
transport, 
catering  or  leisure,  where  the 

respect 

contract  is  concluded,  to  provide 
these  services  at  a  specific  date 
or  within  a  specific  period. 

supplier  undertakes,  when 
the 
contract  is  concluded,  to  provide 
these  services  at  a  specific  date 
or  within  a  specific  period. 

Article  4(1) 

Article  4(1) 

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

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

a) 
b) 

c) 

d) 
e) 

f) 

g) 

h) 

the  identity  of  the  supplier; 
the  main  characteristics  of  the 
goods  or  services 
the  price  of  the goods  or  services 
including  all  taxes; 
delivery  costs, where  appropriate; 
the  arrangements  for  payment, 
delivery  or  performance; 
right  of 
the  existence  of  a 
withdrawal,  except  in  the  cases 
referred  to  in  Article  6(3); 
the  cost  of  using  the  means  of 
communication 
at  a  distance 
where  it  is  calculated  at  other 
than  the  basic  rate; 
the  period  for  which  the  offer  or 
the  price  remains  valid. 

a) 
b) 

c) 

d) 
e) 

f) 

g) 

h) 

i) 

the  identity  of  the  supplier; 
the  main  characteristics  of  the 
goods  or  services 
the  price  of  the goods  or  services 
including  all  taxes; 
delivery  costs, where  appropriate; 
the  arrangements  for  payment, 
delivery  or  performance; 
right  of 
the  existence  of  a 
withdrawal,  except  in  the  cases 
referred 
to  in  Article  3(3)  and 
Article  6(3); 
the  cost  of  using  the  means  of 
communication 
at  a  distance 
where  it  is  calculated  at  other 
than  the  basic  rate; 
the  period  for  which  the  offer  or 
the  price  remains  valid 
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. 

(f), 

in  good 

time  during 

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) 
the 
to 
performance  of  the  contract  and  at  the 
latest  at  the  time  of  delivery,  where 
the 
concerned, 
goods 
information  has  already  been  given  to 
the  consumer  prior  to  conclusion  of  the 
contact  in  writing  or  on  another  durable 
medium. 

unless 

are 

Article  6(1)  first  sentence 

Article  6(1)  first  sentence 

contract 

any  distance 

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

from 

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 
costs  where 
appropriate. 

the  direct 

return 

Article  6(1)  last  sentence 

Article  6(1)  last  sentence 

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

this 

this 

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

Article  6(2) 

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. 

12 

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 
where 
appropriate.  Such  reimbursement  must 
be  carried  out  as  soon  as  possible  and  in 
any  case  within  30  days. 

changes, 

return 

Article  6(3)  second  indent 

Article  6(3)  second  indent 

-  for  the  supply  of  goods  or  services  the 
price  of  which 
on 
financial  market 
fluctuations 
the 
which  cannot  be  controlled  by 
supplier. 

is  dependent 

the 

in 

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 
them 
rales  and/or  prices  derived  from 
which  cannot  be  controlled  by 
the 
supplier 

Article  7(2) 

Article  7(2) 

2.  Where  a  supplier  fails  to  perform  his 
side  of  the  contract  on  the  grounds,  that 
services  ordered 
the  goods  or 
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. 

2.  Where  a  supplier  fails  to  perform  his 
side  of  the  contract  on  the  grounds,  that 
the  goods  or 
are 
services  ordered 
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) 

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

informed 

of 

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 
the  liability  of  the  supplier,  and 
consumer  must  be  informed  of  this.  In 
such  cases 
the  supply  of  goods  or 
services may  not be deemed  to  constitute 
the  meaning  of 
inertia  selling  within 
Article  9. 

13 

Article  10(2) 

Article  10(2) 

than 

those 

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

referred 

to 

than 

2.  Member  States  shall  ensure  that 
means  of  communication  at  a  distance, 
other 
in 
paragraph  1,  may  be  used  only  where 
the 
there  is  no  clear  objection  from 
consumer. 

referred 

those 

to 

Article  11(2) 

Article  11(2) 

or 

representatives 
having 

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

representatives 
having 

2.  The means referred  to  in  paragraph  1 
shall  include  provisions  whereby  public 
their 
or 
bodies  or 
consumer 
a 
organisations 
legitimate  interest  under  national  law  in 
protective  consumers  or  professional 
organisations  having  a legitimate  interest 
may 
law 
take  action  under  national 
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 
the  burden  of  proof  concerning 
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 
the  burden  of  proof  concerning 
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 
there  are  not 
apply 
in  so  far  as 
particular  provisions 
rules  of 
in 
Community law governing  certain types 
of distance contracts in their entirety. 

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. 

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, 

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) 

of 

force 

this  Directive 

4.  No  later  than  six  years  after  the  entry 
the 
into 
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. 

of 

force 

this  Directive 

4.  No  later than five  years after  the entry 
the 
into 
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: 
- 

trade 

consumers  are  informed  of  the 
provisions  of  this  Directive; 
professional 
and 
the 
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 

m 

EN 

Catalogue number  :  CB-CO-96-041-EN-C 

ISBN 92-77-99969-1 

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