Amended proposal for a European Parliament and Council Directive concerning the distance marketing of consumer financial services and amending Directives 97/7/EC and 98/27/EC
Date: 1999-07-23
Institutions: European Commission
Subjects: consumer information, consumer protection, distance selling, financial transaction, provision of services

27.6.2000

EN

Official Journal of the European Communities

C 177 E/21

Amended proposal for a European Parliament and Council Directive concerning the distance
marketing of consumer financial services and amending Directives 97/7/EC and 98/27/EC (1)

(2000/C 177 E/04)

COM(1999) 385 final (cid:151) 98/0245(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 23 July 1999)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

should increase consumer confidence in the use of new
techniques for the distance marketing of financial services,
such as electronic commerce;

Having regard to the Treaty establishing the European
Community, and in particular Articles 47(2), 55 and 95
thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of
Committee,

the Economic and Social

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

(1) Whereas it is important, in the context of achieving the
aims of the single market, to adopt measures designed to
progressively consolidate this market and those measures
must contribute to attaining a high level of consumer
in accordance with Articles 95 and 153 of
protection,
the Treaty;

(2) Whereas, both for consumers and suppliers of financial
services, the distance marketing of financial services will
constitute one of
the
completion of the internal market;

the main tangible results of

(3) Whereas, within the framework of the internal market, it
is in the interest of consumers to have access without
discrimination to the widest possible range of financial
services available in the Community so that
they can
choose those that are best suited to their needs; whereas
in order to safeguard freedom of choice, which is an
essential consumer
right, a high degree of consumer
protection is required in order to enhance consumer
confidence in distance selling;

(4) Whereas it is essential to the smooth operation of the
internal market for consumers to be able to negotiate
and conclude
established
outside their country, regardless of whether the supplier
is also established in the consumer’s country of residence;

contracts with a

supplier

(5) Whereas because of

their

services
whereas
governing the distance marketing of

are particularly
the

establishment

of

a

intangible nature,
suited to distance

financial
selling;
legal
framework
financial services

(1) OJ C 385, 11.12.1998, p. 10.

(6) Whereas Directive 97/7/EC of the European Parliament
and of the Council of 20 May 1997 on the protection
of consumers in respect of distance contracts (2),
lays
down the main rules applicable to distance contracts for
goods or services concluded between a supplier and a
consumer; whereas, however,
that Directive does not
cover financial services;

the interested parties to transmit

(7) Whereas, in the context of the analysis conducted by the
Commission with a view to ascertaining the need for
specific measures in this field, the Commission invited
all
their comments,
notably in connection with the preparation of its Green
Paper entitled (cid:145)Financial Services (cid:151) Meeting Consumers’
Expectations(cid:146) (3); whereas the consultations in this context
there is a need to strengthen consumer
showed that
the Commission
area; whereas
protection in this
proposal
specific
a
present
therefore
concerning the distance marketing of financial services (4);

decided

to

(8) Whereas the adoption by the Member States of conflicting
or different consumer protection rules governing the
distance marketing of consumer financial services would
impede the functioning of
the internal market and
competition between firms in the market; whereas it is
therefore necessary to enact common rules at Community
level in this area, consistent with no reduction in overall
consumer protection in any Member State;

(9) Whereas, given the high level of consumer protection
guaranteed by this Directive, with a view to ensuring
the free movement of financial services, Member States
may not adopt provisions other than those laid down in
this Directive in the fields harmonised by this Directive;

(10) Whereas this Directive covers all financial services liable
to be provided at a distance; whereas, however, certain
financial services are governed by specific provisions of
Community
specific provisions
continue to apply to those financial services; whereas,
however,
down principles
governing the distance marketing of such services;

law; whereas

advisable

to lay

those

is

it

(2) OJ L 144, 4.6.1997, p. 19.
(3) COM(96) 209 final, 22.5.1996.
(4) Communication

from the Commission
enhancing consumer confidence(cid:146), COM(97) 309 final, 26.6.1997.

(cid:145)Financial

services:

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(11) Whereas, in accordance with the principles of subsidiarity
and proportionality as set out in Article 5 of the Treaty,
the objectives of
this Directive cannot be sufficiently
achieved by the Member States and can therefore be
better achieved by the Community;

(16a) Whereas with a view to optimum protection of

the
consumer, it is important that the consumer should be
adequately informed of the provisions of this Directive
and of any codes of conduct existing in this area;

(12) Whereas contracts negotiated at a distance involve the use
of means of distance communication; whereas the various
means of communication are used as part of a distance
sales or service-provision scheme not involving the simul-
the supplier and the consumer;
taneous presence of
whereas the constant development of
those means of
communication requires principles to be defined that are
valid even for those means that are not yet in widespread
use; whereas, therefore, distance contracts are to be those
the offer, negotiation and conclusion of which are carried
out at a distance;

(13) Whereas a single contract involving successive operations
may be subject to different legal treatment in the different
Member States, whereas, however, it is important that this
Directive be applied in the same way in all the Member
States; whereas, to this end,
it is appropriate that this
Directive should be considered to apply to the first of a
series of successive operations, or to the first of a series of
separate operations over a period of time which may be
considered as forming a whole,
irrespective of whether
that operation or series of operations are the subject of
a single contract or several successive contracts;

(14) Whereas by covering a service-provision scheme organised
by the financial services provider, this Directive aims to
exclude from its scope services provided on a strictly
occasional basis and outside a commercial
structure
dedicated to the conclusion of distance contracts;

(15) Whereas the supplier is the person providing services at a
distance; whereas this Directive should however also apply
the marketing stages involves an inter-
when one of
mediary; whereas, having regard to the nature and
degree of that involvement, the pertinent provisions of
this Directive should apply to such an intermediary, irres-
pective of his legal status;

(17) Whereas provision should be made for a right of with-
drawal, without penalty and without having to furnish
grounds;

(18) Deleted

(19) Whereas consumers should be protected against unsol-
icited services; whereas consumers should be exempt
from any obligation in the case of unsolicited services,
the absence of a reply not being construed as signifying
consent on their part; whereas, however, this rule should
be without prejudice to the tacit renewal of contracts
validly concluded between the parties whenever the law
of the Member States permits such tacit renewal;

(20) Whereas Member States should take appropriate measures
to effectively protect consumers who do not wish to be
contacted through certain means of communication;
whereas
to the
particular
to consumers under
available
Community legislation concerning the protection of
personal data and privacy;

this Directive
safeguards

is without prejudice

(21) Whereas, with a view to protecting consumers,

there is a need for

is
important to make arrangements for resolving disputes;
whereas
suitable and effective
complaint and redress procedures in the Member States
with a view to settling potential disputes between
suppliers and consumers, by using, where appropriate,
existing procedures;

it

(22) Whereas, as regards consumer access to justice and in
particular to courts and tribunals in the case of cross-
border disputes,
the
Communication from the Commission to the Council
and European Parliament entitled (cid:145)Towards greater effec-
tiveness in the adoption and enforcement of decisions
within the European Union(cid:146) (1);

should be

taken of

account

(16) Whereas the use of means of distance communications
lead to an unwarranted restriction on the
must not
in the
information provided to the client; whereas
interest of
transparency this Directive lays down the
requirements needed to ensure that an appropriate level
of information is provided the consumer both before and
after conclusion of the contract; whereas the consumer
must
the
prior information needed so as to properly appraise the
financial service and hence make a well-informed choice;
whereas the supplier must specify how long his offer
applies as it stands;

receive, before conclusion of

the contract,

(23) Whereas Member States

should encourage public or
private bodies
established with a view to settling
disputes out of court to cooperate to in resolving cross-
border disputes; whereas
such cooperation could in
particular entail allowing consumers to submit to extra-
judicial bodies in the Member State of their residence
complaints concerning suppliers established in other
Member States;

(1) OJ C 33, 31.1.1998, p. 3.

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in Services

(24) Whereas the Community and the Member States have
entered into commitments in the context of the WTO
General Agreement on Trade
(GATS)
concerning the possibility for European consumers to
abroad;
purchase banking
whereas
to adopt
measures for prudential reasons,
including measures to
protect investors, depositors, policy-holders and persons
to whom a financial service is owed by the supplier of
the financial service; whereas such measures should not
impose restrictions going beyond what
is required to
ensure consumer protection;

the GATS entitles Member States

investment

services

and

(25) Deleted

(26) Whereas, in view of the adoption of this Directive, it is
necessary to adapt the scope of Directive 97/7/EC and
Directive 98/27/EC of the European Parliament and of
the Council of 19 May 1998 on injunctions for the
protection of consumers’ interests (1);

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope

(a) The object of this Directive is to approximate the laws,
regulations and administrative provisions of the Member
States concerning the distance marketing of consumer
financial services.

(b) In the case of contracts for financial services comprising
successive operations or a series of separate operations
performed over time, the provisions of this Directive shall
apply only to the first operation,
irrespective of whether
those operations are deemed by national law to form part
of a single contract or individual separate contracts.

Article 2

Definitions

For the purposes of this Directive:

(a)

(b)

any

contract

contract(cid:146): means

(cid:145)distance
concerning
financial services concluded between a supplier and a
consumer under an organised distance sales or service-
provision scheme run by the supplier, who,
the
purpose of that contract, makes exclusive use of means
of distance communication up to and including the time
at which the contract is concluded;

for

(cid:145)financial
investment or payment service;

service(cid:146): means

any

banking,

insurance,

(b1) (cid:145)real estate credit(cid:146): means any credit,

irrespective of any
surety or bond attached thereto, mainly intended to
permit the acquisition or maintenance of property rights

(1) OJ L 166, 11.6.1998, p. 51.

(c)

(d)

(e)

(f)

(g)

to a site or to a building to be constructed or under
construction, or the renovation or improvement of a
building;

(cid:145)supplier(cid:146): means any natural or legal person who, acting
in his commercial or professional capacity, is the actual
provider of services subject to contracts covered by this
Directive or acts as intermediary in the supply of those
services or
in the conclusion of a distance contract
between those parties;

(cid:145)consumer(cid:146): means any natural person who, in contracts
covered by this Directive, is acting for purposes which are
outside his trade, business or profession;

(cid:145)means of distance communication(cid:146): refers to any means
which, without the simultaneous physical presence of the
supplier and the consumer, may be used for the distance
marketing of a service between those parties;

(cid:145)durable medium(cid:146): means any instrument enabling the
consumer to store information addressed personally and
specifically to him and which is mainly contained on
floppy disks, CD-ROMs, and the hard drive of
the
consumer’s computer on which electronic mail is stored;

(cid:145)operator or supplier of a means of distance communi-
cation(cid:146): means any public or private, natural or legal
person whose trade, business or profession involves
making one or more means of distance communication
available to suppliers.

Article 3

Information of the consumer before conclusion of the
contract

In good time before

1.
contract,
consumers shall be provided with the following information:

conclusion of

the

(a)

the identity and address of the supplier and the identity
and address of the representative of the supplier in the
consumer’s country of residence whom he can consult
where necessary, if such a representative exists;

(b) a description of the main characteristics of the financial

service;

(c)

the total price of the financial service, including all taxes;

(d)

the arrangements for payment, delivery or performance of
the contract;

(e)

the period for which the offer or the price remains valid;

(f) when the price is liable to vary between the time the
information is provided and the time the contract
is
concluded, an indication of this possibility and particulars
allowing the consumer to verify the price at the time of
conclusion of the contract;

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Official Journal of the European Communities

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(g)

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

information referred to in (e), (f), (g), (h), (i), (j), (m), (n), (o)
and (p) must be provided.

(h)

the existence and duration of a right of withdrawal within
conditions and
the meaning of Article 4 and the
procedures governing its exercise;

(i)

(j)

the absence of a right of withdrawal
services referred to in Article 4(1), sentence 2;

for the financial

the amount referred to in Article 5(1)(a) or, in the case
referred to in Article 5(1)(b), the amount used for calcu-
lating the price to be paid by the consumer if he exercises
his right of withdrawal;

2.
The information referred to in paragraph 1, whose
commercial purpose must be clearly apparent, must be
provided in a clear and comprehensible manner in any way
appropriate to the means of distance communication used and
must in particular comply with the principles of fairness in
commercial transactions and the principles that govern the
protection of persons who are legally incapable pursuant to
national law, such as minors.

3.

4.

Deleted

Deleted

(k) where appropriate, the minimum duration of the contract,
to be performed

services

in the
financial
case of
permanently or recurrently;

(l)

information on cancelling the contract;

(m) the law applicable to the contract, when there is a
contractual clause which makes it possible to choose a
law other than that of the consumer’s place of residence;

(n)

the court having jurisdiction in the event of a dispute,
when there is a clause concerning the choice of juris-
diction vesting competence in a court other than that of
the consumer’s place of residence in the event of a dispute;
this provision is without prejudice
to the Brussels
Convention;

Article 3a

Communication of the contractual terms and conditions
and of the prior information

The supplier must communicate to the consumer all the
1.
contractual terms and conditions on paper or on a durable
medium,
including the information referred to in Article
3(1), presented in a clear and comprehensible manner, once
the contract has been concluded.

The supplier shall be exempt from this obligation when
2.
the contractual
terms and conditions and the information
referred to in Article 3(1) have been provided to the
consumer prior to conclusion of the contract on paper or on
another durable medium.

(o)

reference to the supervisory authority on whom the
supplier depends, when he is subject to supervision;

The choice of medium shall be determined by agreement

3.
between the parties.

(p) out-of-court complaint and redress procedures.

However, as regards:

(cid:151) the services covered by Directive 92/49/EEC, and without
that Directive, only the
(j),
(g),
(d),

prejudice
to Article 43 of
information referred to in (c),
(k), (l), and (p) must be provided;

(e), f),

(h),

(i),

(cid:151) the services covered by Directive 92/96/EEC, and without
prejudice to Article 31 and Annex 2 of that Directive, only
the information referred to in (c), (e), (f), (g), (j) and (o) must
be provided;

(cid:151) the financial services covered by Directive 85/611/EEC, and
without prejudice to Articles 27 to 35 and 44 to 47 and
Annexes A and B of that Directive, only the information
referred to in (g), (i), (m), (n), (o) and (p) must be provided;

(cid:151) the financial services covered by Directive 89/298/EEC, and
without prejudice to Articles 7 to 18 and 21 of
that
Directive, only the information referred to in (g), (i), (m),
(n), (o) and (p) must be provided;

(cid:151) the services covered by Directive 93/22/EEC and, without
that Directive, only the

to Article 11 of

prejudice

Article 4

Right of withdrawal after conclusion of the contract

1. Member States shall provide that consumers have a right
of withdrawal of 14 to 30 days, depending on the nature of the
financial
concerned, without having to indicate
services
grounds and without penalty:

(a) when the contractual

terms and conditions and the
information referred to in Article 3(1) have been provided
to the consumer prior to conclusion of the contract,
in
compliance with Article 3(a)(2), from the date of conclusion
of the contract;

(b) when the contract has been concluded at

the express
request of the consumer before the contractual terms and
conditions and the information referred to in Article 3(1)
have been communicated to him, from the date of receipt
of
in
these particulars or the last of such particulars,
compliance with Article 3(a)(1).

When the supplier complies with the withdrawal period
provided for by the legislation of the Member State in which
he is established, he shall not be bound by a different period in
the Member State in which the consumer resides.

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The right of withdrawal shall not apply to contracts

1(a)
concerning:

(a) foreign exchange services;

(b) the reception,

transmission and/or execution of orders
related to, and services in respect of or related to the
following financial products:

Article 5

Performance of the contract and payment of the service
provided before withdrawal

The supplier may not commence to perform the contract
-1.
before expiry of the time limit provided for in Article 4(1)
without the consumer’s express consent.

(cid:151) money market instruments;

(cid:151) transferable securities;

1. When the consumer exercises his right of withdrawal
under Article 4(1) he may be required to pay, without any
undue delay, only either:

(cid:151) OCITS and other collective investment schemes;

(cid:151) financial futures and options;

(a) a lump sum corresponding to the price of the financial
service effectively provided by the supplier before exercise
of the right of withdrawal, independently of the moment of
withdrawal;

(cid:151) exchange and interest rate instruments whose price
financial market

in the

depends on fluctuations
outside the supplier’s control;

(c) non-life insurance for a period of less than two months;

(d) contracts whose performance has been fully completed
before the consumer exercises his right of withdrawal.

1(b)
In the case of real estate credit, Member States may
provide that the consumer may not rely on the right of with-
drawal when:

(cid:151) with his consent, the amount borrowed has been trans-
ferred to the seller of the property or to his representative;

(cid:151) when a notarial act relating to the real estate credit to
which he is party has been validly and regularly recorded.

(b) or, when the cost of

the financial

service effectively
provided by the supplier depends on the time at which
the right of withdrawal is exercised, an amount enabling
the consumer to calculate the price to be paid on a pro rata
basis for the period between the day on which the contact
was concluded and the day on which he exercises his right
of withdrawal.

In either (a) or (b), the amount payable may not be such that it
could be construed as a penalty.

Unless he can prove that

2.
the consumer was duly
informed about the price, in conformity with Article 3(1)(j),
the supplier may not require the consumer to pay any amount
where he exercises his right of withdrawal.

However, in the case of credit funded by bonds secured against
real estate, Member States may provide that the consumer shall
from the right of withdrawal provided for in
not benefit
paragraph 1.

3.
The supplier shall, without any undue delay and no later
than 30 days, return to the consumer any sums he has received
from him on conclusion of the distance contract, except for the
sums referred to in paragraph 1.

2. Without prejudice to the right of withdrawal, when the
consumer has been unfairly induced by the supplier
to
conclude the contract, this contract may be annulled, with all
the attendant legal consequences in terms of the law applicable
to the contract, without prejudice to the consumer’s right to
seek compensation for the harm he has suffered under national
law.

When suppliers communicate objective information to the
consumer on prices of
financial services that depend on
market fluctuations, this shall not be considered as an unfair
inducement.

3.
The consumer shall exercise his right of withdrawal by
notifying the supplier to this effect on paper or on a durable
medium available and accessible to the supplier.

4.

Deleted

The other legal effects and conditions of withdrawal shall

5.
be governed by the law applicable to the contract.

Deleted

Deleted

Article 6

Article 7

Article 8

Unavailability of the service

1. Without prejudice to the rules of civil law of the Member
States pertaining to the non-performance of contracts, if the
financial service which is the subject of the contract is partly or
totally unavailable, the supplier shall, without any undue delay,
inform the consumer to this effect.

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If the financial service is totally unavailable, the supplier
2.
shall, without any undue delay and no later than 30 days,
reimburse any sum paid by the consumer.

Article 10

Unsolicited communications

If

the financial

3.
the
contract may only be performed with the express consent of
the consumer and the supplier.

service is only partly available,

The use by a supplier of the following techniques shall

1.
require the consumer’s prior consent:

(cid:151) automated calling systems without human intervention

(automatic calling machines);

Failing this express agreement, the supplier shall without any
undue delay and no later than 30 days, return to the consumer
any sums he may have paid.

(cid:151) fax machines.

Where the service is only partly performed, the supplier shall
return to the consumer all sums relating to the part of the
service that has not been performed, without any undue delay
and no later than 30 days.

Article 8a

Payment by card

2. Member States
shall ensure that means of distance
communication other than those referred to in paragraph 1,
when they allow individual communications

(a) shall not be authorised unless the consent of the consumers

concerned has been obtained or

(b) may only be used if the consumer has not expressed his

manifest objection.

Member States shall take appropriate measures to ensure that:

The measures referred to in paragraphs 1 and 2 shall not

3.
entail costs for consumers.

(cid:151) consumers can request the cancellation of a payment in the
case of fraudulent use of their payment card in transactions
falling within this Directive;

In the case of telephone communications, the identity of
4.
the supplier and the commercial purpose of the call shall be
made explicitly clear at the beginning of any conversation with
the consumer.

(cid:151) in the case of

fraudulent use,

the amounts paid are

recredited or that the consumer is reimbursed.

5. Member States shall provide for appropriate penalties in
the event of the supplier’s failure to comply with Article 10.

Article 8b

Return of original documents

They may provide for this purpose notably that the consumer
may cancel the contract at any time, free of charge and without
penalties.

In the event of the consumer exercising his rights pursuant to
Article 4(1) or in the cases provided for in Article 8, the
consumer
return to the
supplier any original contract document bearing the supplier’s
signature communicated to him on conclusion of the contract.

shall, without any undue delay,

Article 11

Imperative nature of the Directive’s provisions

Consumers may not waive the rights conferred on them

1.
by this Directive.

Article 9

Unsolicited services

Without prejudice to the legal provisions of the Member States
on the tacit renewal of contracts, when such rules permit tacit
renewal, Member States shall take the necessary measures to:

2.

Deleted

Consumers may not be deprived of

the protection
3.
granted by this Directive where the law governing the
contract is that of a third country if the consumer is resident
on the territory of a Member State and the contract has a close
link with the Community.

(cid:151) prohibit

the supply of

financial services to a consumer
without a prior request on his part, when this supply
includes a request for immediate or deferred payment;

Article 12

Judicial and administrative redress

(cid:151) exempt the consumer from any obligation in the event of
unsolicited supplies, the absence of a reply not constituting
consent.

1. Member States shall ensure that adequate and effective
complaints and redress procedures
the settlement of
disputes between suppliers and consumers are put in place,
using existing procedures where appropriate.

for

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The procedures referred to in paragraph 1 shall include
2.
provisions whereby one or more of the following bodies, as
determined by national
law, may take action under national
law before the courts or competent administrative bodies to
ensure that the national provisions for the implementation of
this directive are applied:

(a) public bodies or their representatives;

(b) consumer organisations having a legitimate interest

in

protecting consumers;

(c) professional organisations having a legitimate interest in

acting.

3.

Deleted

(cid:145)(cid:151) relating

to financial

services

the European Parliament and of

to which Directive
the

. . ./. . ./EC of
Council

(*) applies.

___________
(*) OJ L . . .(cid:146)

2. Annex II is deleted.

Article 16

Directive 98/27/EC

4. Member States shall
take the measures necessary to
ensure that operators and suppliers of means of distance
communication put an end to practices
that have been
declared to be contrary to this Directive, on the basis of a
judicial decision, an administrative decision or a decision
issued by a supervisory authority notified to them, where
those operators or suppliers are in a position to do so.

The following point 10 is added to the Annex of Directive
98/27/EC:

(cid:145)10. Directive . . ./. . ./EC of the European Parliament and of the
Council on the distance marketing of consumer financial
services (*)

Article 12a

Out-of-court redress

___________
(*) OJ L . . .(cid:146)

Member States shall encourage bodies established with a view
to the out-of-court settlement of disputes to cooperate in the
resolution of cross-border disputes.

Article 13

Burden of proof

The burden of proof in respect of the supplier’s obligations to
inform the consumer and the consumer’s consent to conclusion
of the contract and, where appropriate, its performance, shall
lie with the supplier.

the respect by the supplier of all or part of

Any contractual term or condition providing that the burden of
the
proof of
obligations
to this Directive
should lie with the consumer shall be an unfair term within
the meaning of Council Directive 93/13/EEC (1).

incumbent on him pursuant

Deleted

Article 14

Directive 90/619/EEC

Article 15

Directive 97/7/EC

Directive 97/7/EC is amended as follows:

Article 17

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 30 June 2002 at the latest. They shall forthwith
inform the Commission thereof.

At the time of their official publication, these provisions shall
refer to this Directive or shall be accompanied by such a
reference. Member States shall determine how such reference
is to be made.

2. Member States shall communicate to the Commission the
text of the main laws, regulations or administrative provisions
which they adopt in the field governed by this Directive. In
that communication, Member States shall provide a table
showing the national provisions corresponding to each article
of this Directive.

Article 18

Entry into force

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

Article 19

Addressees

1. The first indent of Article 3(1) is replaced by the following:

This Directive is addressed to the Member States.

(1) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in

consumer contracts, OJ L 95, 21.4.1993, p. 29.