Opinion of the Commission pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council concerning the distance marketing of consumer financial services and amending Directives 97/7/EC and 98/27/EC amending the proposal of the Commission pursuant to Article 250(2) of the EC Treaty
Date: 2002-06-26
Institutions: European Commission
Subjects: consumer information, consumer protection, contract, distance selling, financial market, financial transaction, marketing, provision of services, single market

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 26.06.2002
COM(2002) 360 final

1998/0245 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty
on the European Parliament’s amendments
to the Council’s common position regarding the
proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

concerning the distance marketing of consumer financial services and amending
Directives 97/7/EC and 98/27/EC.

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250(2) of the EC Treaty

1998/0245 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty
on the European Parliament’s amendments
to the Council’s common position regarding the
proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

concerning the distance marketing of consumer financial services and amending
Directives 97/7/EC and 98/27/EC.

1.

INTRODUCTION

Article  251(2),  third  subparagraph,  point  (c)  of  the  EC  Treaty  requires  the  Commission  to
deliver  an  opinion  on  the  amendments  proposed  by  the  European  Parliament  at  second
reading. The Commission’s opinion on the two amendments proposed by Parliament is set out
below.

2.

BACKGROUND

On  19 November  1998,  the  Commission  presented  to  the  European  Parliament  and  the
Council a proposal for a Directive1 of the European Parliament and of the Council concerning
the distance marketing of consumer financial services and amending Directives 90/619/EEC,
97/7/EC and 98/27/EC.

The Economic and Social Committee delivered its opinion on 29 April 19992.

On  5 May  1999  the  European  Parliament  adopted  at  first  reading  a  legislative  resolution3
comprising 36 amendments to the Commission proposal.

The Commission presented its amended proposal to the Council on 23 July 19994.

The Council adopted its common position on 19 December 20015.

On 14 January 2002 the Commission adopted a communication to the European Parliament6
on the Council’s common position.

On  14 May  2002  the  European  Parliament  voted  at  second  reading  two  amendments  to  the
common position.

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OJ C 385, 11.12.1998, p. 10.
OJ C 169, 16.6.1999, p. 43.
OJ C 279, 1.10.1999, p. 197.
COM (1999) 385 final of 23.7.1999, OJ C 177 E, 27.6.2000, p 21.
OJ C 58 E, 5.3.2002, p. 32.
SEC (2002) 30 final.

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3.

PURPOSE OF THE PROPOSAL

The  Directive  aims  to  establish  an  appropriate  harmonised  legal  framework  governing
distance  contracts  for  financial  services.  It  consolidates  and  completes  the  existing  legal
framework  so  as  to  facilitate  the  functioning  of  the  internal  market  while  establishing  an
appropriate level of consumer protection.

The Directive in particular comprises details of the information that has to be provided before
conclusion of the contract, an obligation to provide written confirmation of this information, a
right of withdrawal except in the case of certain specific services, the principle of payment for
the service provided before withdrawal, consumer protection with regard to payment by card,
a ban on unsolicited sales, a limit on using means of distance communication, and measures
to facilitate the settling of disputes.

4.

OPINION OF THE COMMISSION ON PARLIAMENT’S AMENDMENTS

At  second  reading,  the  European  Parliament  adopted  two  amendments  (43  and  44)  to  the
Council’s common position.

For the reasons set out below, the Commission can accept these amendments.

The purpose of amendment 43 is to resolve the problem posed by the exercising of the right
of  withdrawal  in  the  event  of  the  involvement  of  a  notary.  The  amendment  to  Article  6(3)
adds a new point (ba), allowing Member States to provide that the right of withdrawal does
not  apply  to  all  declarations  made  before  a  notary,  provided  the  notary  confirms  that  the
consumer’s rights under Article 5(1) have been respected.

The idea is to take account, on the one hand, of the legal problems which would arise from the
withdrawal  of  a  notarial  act  and,  on  the  other  hand,  of  the  guarantees  offered  by  the
involvement of a notary in terms of  consumer protection. The wording takes  account  of  the
legal situation in the Member States which do not have civil law notaries.

The  Commission,  aware  of  the  problem  which  might  be  posed  by  the  undifferentiated
application of the right of withdrawal to all such acts, and in view of the additional guarantees
accompanying the exception, accepts the inclusion of this provision, with a view to reaching a
compromise and achieving rapid adoption of the Directive.

The  purpose  of  amendment  44  is  to  clarify  the  provisions  of  Article  7(3),  under  which
payment  for  the  service  provided  before  the  right  of  withdrawal  was  exercised  may  be
required by the supplier only if  the consumer  asked for  performance of  the contract to start
before  expiry  of  the  withdrawal  period.  The  amendment  makes  the  principle  clearer,  by
stipulating that the performance of the contract may only begin after the consumer has given
approval.  It  also  means  that  the  supplier  can  decide  not  to  commence  performance  of  the
contract  before  expiry  of  the  withdrawal  period,  in  which  case  the  consumer  could  not  be
required to pay any penalty under Article 7.

The Commission regards this clarification  as  relevant  and  therefore accepts the  inclusion of
this  provision,  with  a  view  to  reaching  a  compromise  and  achieving  rapid  adoption  of  the
Directive.

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5.

CONCLUSION

Pursuant to Article 250(2) of the EC Treaty, the Commission is amending its proposal in line
with the above.

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