Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC
Date: 2002-09-23
Institutions: Council of the European Union, European Parliament
Subjects: approximation of laws, consumer protection, distance selling, financial transaction, provision of services

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DIRECTIVE 2002/65/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 September 2002

concerning the distance marketing of consumer financial services and amending Council Directive
90/619/EEC and Directives 97/7/EC and 98/27/EC

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(1)

(2)

It is important, in the context of achieving the aims of
the single market, to adopt measures designed to consol-
idate progressively this market and those measures must
contribute to attaining a high level of consumer protec-
in accordance with Articles 95 and 153 of the
tion,
Treaty.

Both for consumers and suppliers of financial services,
the distance marketing of financial services will consti-
tute one of the main tangible results of the completion
of the internal market.

(3) Within the framework of the internal market, it is in the
interest of consumers to have access without discrim-
ination 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. 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)

It is essential to the smooth operation of the internal
market
for consumers to be able to negotiate and
conclude contracts with a supplier established in other
Member States, regardless of whether the supplier is also
established in the Member State in which the consumer
resides.

(1) OJ C 385, 11.12.1998, p. 10 and
OJ C 177 E, 27.6.2000, p. 21.

(2) OJ C 169, 16.6.1999, p. 43.
(3) Opinion of the European Parliament of 5 May 1999 (OJ C 279,
1.10.1999, p. 207), Council Common Position of 19 December
2001 (OJ C 58 E, 5.3.2002, p. 32) and Decision of the European
Parliament of 14 May 2002 (not yet published in the Official
Journal). Council Decision of 26 June 2002 (not yet published in
the Official Journal).

(5)

(6)

(7)

(8)

(9)

Because of their intangible nature, financial services are
particularly suited to distance selling and the establish-
framework governing the distance
ment of a legal
marketing of financial services should increase consumer
confidence in the use of new techniques for the distance
marketing of
such as electronic
commerce.

financial

services,

This Directive should be applied in conformity with the
including Directive
Treaty and with secondary law,
2000/31/EC (4) on electronic commerce, the latter being
applicable solely to the transactions which it covers.

This Directive aims to achieve the objectives set forth
above without prejudice to Community or national law
governing freedom to provide services or, where applic-
able, host Member State control and/or authorisation or
supervision systems in the Member States where this is
compatible with Community legislation.

Moreover, this Directive, and in particular its provisions
relating to information about any contractual clause on
law applicable to the contract and/or on the competent
court does not affect the applicability to the distance
marketing of consumer financial services of Council
Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of
judgements in civil and commercial matters (5) or of the
1980 Rome Convention on the law applicable to
contractual obligations.

the objectives of

The achievement of
the Financial
Services Action Plan requires a higher level of consumer
protection in certain areas. This implies a greater conver-
gence, in particular, in non harmonised collective invest-
ment funds, rules of conduct applicable to investment
services and consumer credits. Pending the achievement
of the above convergence, a high level of consumer
protection should be maintained.

(10) 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 (6), lays down
the main rules applicable to distance contracts for goods
or
concluded between a supplier and a
consumer. However, that Directive does not cover finan-
cial services.

services

(4) OJ L 178, 17.7.2000, p. 1.
(5) OJ L 12, 16.1.2001, p. 1.
(6) OJ L 144, 4.6.1997, p. 19.

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(11)

(12)

In the context of the analysis conducted by the Commis-
sion with a view to ascertaining the need for specific
measures in the field of financial services, the Commis-
sion invited all the interested parties to transmit their
comments, notably in connection with the preparation
of its Green Paper entitled ‘Financial Services — Meeting
Consumers' Expectations’. The consultations
in this
context showed that
there is a need to strengthen
consumer protection in this area. The Commission
therefore decided to present
specific proposal
concerning the distance marketing of financial services.

a

The adoption by the Member States of conflicting or
different
consumer protection rules governing the
distance marketing of consumer financial services could
impede the functioning of
the internal market and
competition between firms in the market. It is therefore
necessary to enact common rules at Community level in
this area, consistent with no reduction in overall
consumer protection in the Member States.

(13) A high level of consumer protection should be guaran-
teed by this Directive, with a view to ensuring the free
movement of financial services. Member States should
not be able to adopt provisions other than those laid
down in this Directive in the fields it harmonises, unless
otherwise specifically indicated in it.

(14)

(15)

This Directive covers all financial services liable to be
provided at a distance. However, certain financial
services
specific provisions of
Community legislation which continue to apply to those
financial services. However, principles governing the
distance marketing of such services should be laid down.

governed by

are

Contracts negotiated at a distance involve the use of
means of distance communication which are used as
part of a distance sales or service-provision scheme not
involving the simultaneous presence of the supplier and
the consumer. The constant development of
those
to be
means of communication requires principles
defined that are valid even for those means which are
not yet in widespread use. Therefore, distance contracts
are those the offer, negotiation and conclusion of which
are carried out at a distance.

(16) A single contract

involving successive operations or
separate operations of the same nature performed over
time may be subject to different legal treatment in the
different Member States, but it is important that this
Directive be applied in the same way in all the Member
States. To that end, it is appropriate that this Directive
should be considered to apply to the first of a series of
successive operations or separate operations of the same
nature performed over time which may be considered as
forming a whole, irrespective of whether that operation
or series of operations is the subject of a single contract
or several successive contracts.

card,

concluding

(17) An ‘initial service agreement’ may be considered to be
for example the opening of a bank account, acquiring a
credit
a portfolio management
contract, and ‘operations’ may be considered to be for
example the deposit or withdrawal of funds to or from
the bank account, payment by credit card, transactions
made within the framework of a portfolio management
contract. Adding new elements to an initial service
agreement, such as a possibility to use an electronic
payment instrument together with one's existing bank
account, does not constitute an ‘operation’ but an addi-
tional contract
to which this Directive applies. The
subscription to new units of the same collective invest-
ment fund is considered to be one of ‘successive opera-
tions of the same nature’.

(18)

(19)

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.

The supplier is the person providing services at a
distance. This Directive should however also apply when
one of the marketing stages involves an intermediary.
Having regard to the nature and degree of that involve-
ment, the pertinent provisions of this Directive should
apply to such an intermediary, irrespective of his or her
legal status.

(20) Durable mediums include in particular floppy discs, CD-
ROMs, DVDs and the hard drive of the consumer's
computer on which the electronic mail
is stored, but
they do not include Internet websites unless they fulfil
the criteria contained in the definition of a durable
medium.

(21)

(22)

The use of means of distance communications should
not lead to an unwarranted restriction on the informa-
tion provided to the client. In the interests of transpar-
ency this Directive lays down the requirements needed
to ensure that an appropriate level of information is
provided to the consumer both before and after conclu-
sion of
the contract. The consumer should receive,
before conclusion of the contract, the prior information
needed so as to properly appraise the financial service
offered to him and hence make a well-informed choice.
The supplier should specify how long his offer applies as
it stands.

Information items listed in this Directive cover informa-
tion of a general nature applicable to all kinds of finan-
cial services. Other information requirements concerning
a given financial service, such as the coverage of an
insurance policy, are not
solely specified in this
Directive. This kind of information should be provided
in
relevant
Community
legislation in
conformity with Community law.

legislation or national

accordance, where

applicable, with

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(23) With a view to optimum protection of the consumer, it
is important that the consumer is adequately informed
of the provisions of this Directive and of any codes of
conduct existing in this area and that he has a right of
withdrawal.

(24) When the right of withdrawal does not apply because
the consumer has expressly requested the performance
of a contract, the supplier should inform the consumer
of this fact.

(25)

Consumers
should be protected against unsolicited
services. Consumers should be exempt from any obliga-
tion in the case of unsolicited services, the absence of a
reply not being construed as signifying consent on their
part. However, this rule should be without prejudice to
the tacit renewal of contracts validly concluded between
the Member States
the parties whenever the law of
permits such tacit renewal.

(26) Member States should take appropriate measures to
protect effectively consumers who do not wish to be
contacted through certain means of communication or
at certain times. This Directive should be without preju-
dice to the particular safeguards available to consumers
under Community legislation concerning the protection
of personal data and privacy.

(27) With a view to protecting consumers, there is a need for
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.

(28) Member States

should encourage public or private
bodies established with a view to settling disputes out of
court to cooperate in resolving cross-border disputes.
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. The estab-
increased assistance to
lishment of FIN-NET offers
consumers when using cross-border services.

(32)

(33)

(34)

The Community and the Member States have entered
into commitments in the context of the General Agree-
ment on Trade in Services (GATS) concerning the pos-
sibility for consumers to purchase banking and invest-
ment services abroad. The GATS entitles Member States
including
to adopt measures for prudential reasons,
measures to protect investors, depositors, policy-holders
and persons to whom a financial service is owed by the
supplier of the financial service. Such measures should
not impose restrictions going beyond what is required to
ensure the protection of consumers.

In view of the adoption of this Directive, the scope of
Directive 97/7/EC and Directive 98/27/EC of the Euro-
pean Parliament and of the Council of 19 May 1998 on
injunctions for the protection of consumers' interests (1)
and the scope of the cancellation period in Council
Directive 90/619/EEC of 8 November 1990 on the coor-
dination of laws, regulations and administrative provi-
sions relating to direct life assurance, laying down provi-
sions to facilitate the effective exercise of freedom to
provide services (2) should be adapted.

services

financial

cannot be

Since the objectives of this Directive, namely the estab-
lishment of common rules on the distance marketing of
consumer
sufficiently
achieved by the Member States and can therefore be
better achieved at Community level, the Community
may adopt measures, in accordance with the principles
of subsidiarity as set out in Article 5 of the Treaty. In
accordance with the principle of proportionality, as set
out in that Article, this Directive does not go beyond
what is necessary to achieve that objective,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Object and scope

(29)

(30)

(31)

This Directive is without prejudice to extension by
Member States, in accordance with Community law, of
the protection provided by this Directive to non-profit
organisations and persons making use of
financial
services in order to become entrepreneurs.

The object of this Directive is to approximate the laws,
1.
regulations and administrative provisions of the Member States
concerning the distance marketing of consumer
financial
services.

This Directive should also cover cases where the national
legislation includes the concept of a consumer making a
binding contractual statement.

The provisions in this Directive on the supplier's choice
of language should be without prejudice to provisions of
national
in conformity with
adopted
Community law governing the choice of language.

legislation,

2.
In the case of contracts for financial services comprising
an initial service agreement followed by successive operations
or a series of separate operations of the same nature performed
over time, the provisions of this Directive shall apply only to
the initial agreement.

(1) OJ L 166, 11.6.1998, p. 51. Directive as last amended by Direc-

tive 2000/31/EC (OJ L 178, 17.7.2001, p. 1).

(2) OJ L 330, 29.11.1990, p. 50. Directive as last amended by

Directive 92/96/EEC (OJ L 360, 9.12.1992, p. 1).

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In case there is no initial service agreement but the successive
operations or the separate operations of
the same nature
performed over time are performed between the same contrac-
tual parties, Articles 3 and 4 apply only when the first opera-
tion is performed. Where, however, no operation of the same
nature is performed for more than one year, the next operation
will be deemed to be the first in a new series of operations and,
accordingly, Articles 3 and 4 shall apply.

Article 2

Definitions

For the purposes of this Directive:

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

(1) t h e s u p p l i e r

(a) the identity and the main business of the supplier, the
geographical address at which the supplier is estab-
lished and any other geographical address relevant for
the customer's relations with the supplier;

(b) the identity of the representative of the supplier estab-
lished in the consumer's Member State of residence and
the geographical address relevant for the customer's
if such a repres-
relations with the representative,
entative exists;

(c) when the consumer's dealings are with any professional
other than the supplier, the identity of this professional,
the
the capacity in which he is acting vis-à-vis
consumer, and the geographical address relevant for the
customer's relations with this professional;

(d) where the supplier is registered in a trade or similar
public register, the trade register in which the supplier
is entered and his registration number or an equivalent
means of identification in that register;

(e) where the supplier's activity is subject to an author-
isation scheme, the particulars of the relevant super-
visory authority;

(b) ‘financial service’ means any service of a banking, credit,
insurance, personal pension, investment or payment nature;

(2) t h e f i n a n c i a l s e r v i c e

(c) ‘supplier’ means any natural or legal person, public or
private, who, acting in his commercial or professional
capacity, is the contractual provider of services subject to
distance contracts;

(d) ‘consumer’ means any natural person who,

in distance
contracts covered by this Directive, is acting for purposes
which are outside his trade, business or profession;

(e) ‘means of distance communication’ 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;

(f) ‘durable medium’ means any instrument which enables the
consumer to store information addressed personally to him
in a way accessible for future reference for a period of time
adequate for the purposes of the information and which
the information
allows the unchanged reproduction of
stored;

(g) ‘operator or supplier of a means of distance communica-
tion’ 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.

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

service;

(b) the total price to be paid by the consumer to the
supplier for the financial service, including all related
fees, charges and expenses, and all taxes paid via the
supplier or, when an exact price cannot be indicated,
the basis for the calculation of the price enabling the
consumer to verify it;

(c) where relevant notice indicating that

the financial
service is related to instruments involving special risks
related to their specific features or the operations to be
executed or whose price depends on fluctuations in the
financial markets outside the supplier's control and that
historical performances are no indicators for future
performances;

(d) notice of the possibility that other taxes and/or costs
may exist that are not paid via the supplier or imposed
by him;

(e) any limitations of the period for which the information

provided is valid;

(f) the arrangements for payment and for performance;

(g) any specific additional cost for the consumer of using
if such addi-

the means of distance communication,
tional cost is charged;

Article 3

(3) t h e d i s t a n c e c o n t r a c t

Information to the consumer prior to the conclusion of
the distance contract

1.
In good time before the consumer is bound by any
distance contract or offer, he shall be provided with the
following information concerning:

(a) the existence or absence of a right of withdrawal in
accordance with Article 6 and, where the right of with-
drawal exists, its duration and the conditions for exer-
cising it, including information on the amount which
the consumer may be required to pay on the basis of
Article 7(1), as well as the consequences of non-exer-
cise of that right;

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(b) the minimum duration of the distance contract in the
case of financial services to be performed permanently
or recurrently;

(c) information on any rights the parties may have to
terminate the contract early or unilaterally by virtue of
the terms of the distance contract, including any penal-
ties imposed by the contract in such cases;

(d) practical instructions for exercising the right of with-
drawal indicating, inter alia, the address to which the
notification of a withdrawal should be sent;

(e) the Member State or States whose laws are taken by the
supplier as a basis for the establishment of relations
the
with the consumer prior to the conclusion of
distance contract;

(f) any contractual clause on law applicable to the distance

contract and/or on competent court;

(g) in which language, or languages, the contractual terms
and conditions, and the prior information referred to in
this Article are supplied, and furthermore in which
language, or languages, the supplier, with the agree-
the consumer, undertakes to communicate
ment of
during the duration of this distance contract;

(4) r e d r e s s

(a) whether or not there is an out-of-court complaint and
redress mechanism for the consumer that is party to
the distance contract and, if so, the methods for having
access to it;

(b) the existence of guarantee funds or other compensation
arrangements, not covered by Directive 94/19/EC of
the European Parliament and of the Council of 30 May
1994 on deposit guarantee schemes (1) and Directive
97/9/EC of the European Parliament and of the Council
of
compensation
on
schemes (2).

3 March

investor

1997

2.
The information referred to in paragraph 1, the commer-
cial purpose of which must be made clear, shall be provided in
a clear and comprehensible manner in any way appropriate to
the means of distance communication used, with due regard, in
particular, to the principles of good faith in commercial trans-
actions, and the principles governing the protection of those
who are unable, pursuant to the legislation of the Member
States, to give their consent, such as minors.

3.

In the case of voice telephony communications

(a) the identity of the supplier and the commercial purpose of
the call initiated by the supplier shall be made explicitly
clear at
the beginning of any conversation with the
consumer;

(b) subject to the explicit consent of the consumer only the

following information needs to be given:

— the identity of the person in contact with the consumer

and his link with the supplier,

— a description of the main characteristics of the financial

service,

(1) OJ L 135, 31.5.1994, p. 5.
(2) OJ L 84, 26.3.1997, p. 22.

— the total price to be paid by the consumer to the
supplier for the financial service including all taxes paid
via the supplier or, when an exact price cannot be
indicated,
the price
the basis for the calculation of
enabling the consumer to verify it,

— notice of the possibility that other taxes and/or costs
may exist that are not paid via the supplier or imposed
by him,

— the existence or absence of a right of withdrawal

in
accordance with Article 6 and, where the right of with-
drawal exists, its duration and the conditions for exer-
cising it, including information on the amount which
the consumer may be required to pay on the basis of
Article 7(1).

The supplier shall inform the consumer that other information
is available on request and of what nature this information is.
In any case the supplier shall provide the full information when
he fulfils his obligations under Article 5.

4.
Information on contractual obligations, to be communi-
cated to the consumer during the pre-contractual phase, shall
be in conformity with the contractual obligations which would
result from the law presumed to be applicable to the distance
contract if the latter were concluded.

Article 4

Additional information requirements

1. Where there are provisions in the Community legislation
governing financial services which contain prior information
requirements additional to those listed in Article 3(1), these
requirements shall continue to apply.

Pending further harmonisation, Member States may
2.
maintain or introduce more stringent provisions on prior infor-
mation requirements when the provisions are in conformity
with Community law.

3. Member States shall communicate to the Commission
national provisions on prior information requirements under
paragraphs 1 and 2 of this Article when these requirements are
additional to those listed in Article 3(1). The Commission shall
take account of the communicated national provisions when
drawing up the report referred to in Article 20(2).

4.
The Commission shall, with a view to creating a high
level of transparency by all appropriate means, ensure that
information, on the national provisions communicated to it, is
made available to consumers and suppliers.

Article 5

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

The supplier shall communicate to the consumer all the
1.
contractual terms and conditions and the information referred
to in Article 3(1) and Article 4 on paper or on another durable
medium available and accessible to the consumer in good time
before the consumer is bound by any distance contract or
offer.

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The supplier shall fulfil his obligation under paragraph 1
2.
immediately after the conclusion of the contract, if the contract
has been concluded at the consumer's request using a means of
distance communication which does not enable providing the
contractual
terms and conditions and the information in
conformity with paragraph 1.

— forward interest-rate agreements (FRAs),

— interest-rate, currency and equity swaps,

— options to acquire or dispose of any instruments
referred to in this point
including equivalent cash-
settled instruments. This category includes in particular
options on currency and on interest rates;

3.
At any time during the contractual relationship the
consumer is entitled, at his request, to receive the contractual
terms and conditions on paper. In addition, the consumer is
entitled to change the means of distance communication used,
unless this is incompatible with the contract concluded or the
nature of the financial service provided.

(b) travel and baggage insurance policies or similar short-term
insurance policies of less than one month's duration;

(c) contracts whose performance has been fully completed by
both parties at the consumer's express request before the
consumer exercises his right of withdrawal.

Article 6

Right of withdrawal

1.
The Member States shall ensure that the consumer shall
have a period of 14 calendar days to withdraw from the
contract without penalty and without giving any reason.
However, this period shall be extended to 30 calendar days in
relating to life insurance covered by
distance contracts
Directive 90/619/EEC and personal pension operations.

The period for withdrawal shall begin:

— either from the day of

the conclusion of

the distance
contract, except in respect of the said life assurance, where
the time limit will begin from the time when the consumer
is informed that the distance contract has been concluded,
or

— from the day on which the consumer receives the contrac-
tual terms and conditions and the information in accord-
ance with Article 5(1) or (2), if that is later than the date
referred to in the first indent.

Member States,
in addition to the right of withdrawal, may
provide that the enforceability of contracts relating to invest-
ment services is suspended for the same period provided for in
this paragraph.

2.

The right of withdrawal shall not apply to:

(a) financial services whose price depends on fluctuations in
the financial market outside the suppliers control, which
may occur during the withdrawal period, such as services
related to:

— foreign exchange,

— money market instruments,

— transferable securities,

— units in collective investment undertakings,

3. Member States may provide that the right of withdrawal
shall not apply to:

(a) any credit intended primarily for the purpose of acquiring
or retaining property rights in land or in an existing or
projected building, or for the purpose of renovating or
improving a building, or

(b) any credit secured either by mortgage on immovable prop-
erty or by a right related to immovable property, or

(c) declarations by consumers using the services of an official,
provided that the official confirms that the consumer is
guaranteed the rights under Article 5(1).

This paragraph shall be without prejudice to the right to a
reflection time to the benefit of the consumers that are resident
in those Member States where it exists, at the time of the
adoption of this Directive.

4. Member States making use of the possibility set out in
paragraph 3 shall communicate it to the Commission.

The Commission shall make available the information
5.
communicated by Member States to the European Parliament
and the Council and shall ensure that it is also available to
consumers and suppliers who request it.

6.
If the consumer exercises his right of withdrawal he shall,
before the expiry of the relevant deadline, notify this following
the practical
instructions given to him in accordance with
Article 3(1)(3)(d) by means which can be proved in accordance
with national law. The deadline shall be deemed to have been
observed if the notification, if it is on paper or on another
durable medium available and accessible to the recipient,
is
dispatched before the deadline expires.

7.
This Article does not apply to credit agreements cancelled
under the conditions of Article 6(4) of Directive 97/7/EC or
Article 7 of Directive 94/47/EC of the European Parliament and
of the Council of 26 October 1994 on the protection of
purchasers in respect of certain aspects of contracts relating to
the purchase of the right to use immovable properties on a
timeshare basis (1).

— financial-futures contracts,

including equivalent cash-

settled instruments,

(1) OJ L 280, 29.10.1994, p. 83.

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If to a distance contract of a given financial service another
distance contract has been attached concerning services
provided by the supplier or by a third party on the basis of an
agreement between the third party and the supplier, this addi-
tional distance contract shall be cancelled, without any penalty,
if the consumer exercises his right of withdrawal as provided
for in Article 6(1).

8.
The provisions of this Article are without prejudice to the
Member States' laws and regulations governing the cancellation
or termination or non-enforceability of a distance contract or
the right of a consumer to fulfil his contractual obligations
before the time fixed in the distance contract. This applies
irrespective of the conditions for and the legal effects of the
winding-up of the contract.

Article 7

Payment of the service provided before withdrawal

1. When the consumer exercises his right of withdrawal
under Article 6(1) he may only be required to pay, without any
undue delay, for the service actually provided by the supplier in
accordance with the contract. The performance of the contract
may only begin after the consumer has given his approval. The
amount payable shall not:

— exceed an amount which is in proportion to the extent of
the service already provided in comparison with the full
coverage of the contract,

— in any case be such that it could be construed as a penalty.

2. Member States may provide that the consumer cannot be
required to pay any amount when withdrawing from an insur-
ance contract.

3.
The supplier may not require the consumer to pay any
amount on the basis of paragraph 1 unless he can prove that
the consumer was duly informed about the amount payable, in
conformity with Article 3(1)(3)(a). However, in no case may he
require such payment if he has commenced the performance of
the withdrawal period
the contract before the expiry of
provided for in Article 6(1) without
the consumer's prior
request.

4.
The supplier shall, without any undue delay and no later
than within 30 calendar days, return to the consumer any sums
he has received from him in accordance with the distance
contract, except for the amount referred to in paragraph 1.
This period shall begin from the day on which the supplier
receives the notification of withdrawal.

5.
The consumer shall return to the supplier any sums
and/or property he has received from the supplier without any
undue delay and no later than within 30 calendar days. This
period shall begin from the day on which the consumer
dispatches the notification of withdrawal.

Article 8

Payment by card

Member States shall ensure that appropriate measures exist to
allow a consumer:
— to request cancellation of a payment where fraudulent use
has been made of his payment card in connection with
distance contracts,

— in the event of such fraudulent use, to be re-credited with

the sum paid or have them returned.

Article 9

Unsolicited services

Without prejudice to Member States provisions on the tacit
renewal of distance contracts, when such rules permit tacit
renewal, Member States shall take the necessary measures to:
— 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,
— exempt the consumer from any obligation in the event of
unsolicited supplies, the absence of a reply not constituting
consent.

Article 10

Unsolicited communications

The use by a supplier of the following distance communi-
1.
cation techniques shall require the consumer's prior consent:

(a) automated calling systems without human intervention

(automatic calling machines);

(b) fax machines.

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.

The measures referred to in paragraphs 1 and 2 shall not

3.
entail costs for consumers.

Article 11

Sanctions

Member States shall provide for appropriate sanctions in the
event of the supplier's failure to comply with national provi-
sions adopted pursuant to this Directive.

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

These sanctions must be effective, proportional and dissuasive.

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L 271/23

Article 12

Imperative nature of this Directive's provisions

Consumers may not waive the rights conferred on them

1.
by this Directive.

2. Member States shall take the measures needed to ensure
that the consumer does not lose the protection granted by this
Directive by virtue of the choice of the law of a non-member
country as the law applicable to the contract, if this contract
has a close link with the territory of one or more Member
States.

Article 13

Judicial and administrative redress

1. Member States shall ensure that adequate and effective
means exist to ensure compliance with this Directive in the
interests of consumers.

2.
The means referred to in paragraph 1 shall include provi-
sions whereby one or more of the following bodies, as deter-
mined by national law, may take action in accordance with
national
law before the courts or competent administrative
bodies to ensure that the national provisions for the imple-
mentation 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.

take the measures necessary to
3. Member States shall
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.

Article 14

Out-of-court redress

1. Member States shall promote the setting up or develop-
ment of adequate and effective out-of-court complaints and
redress procedures for the settlement of consumer disputes
concerning financial services provided at distance.

Article 15

Burden of proof

Without prejudice to Article 7(3), Member States may stipulate
that the burden of proof in respect of the supplier's obligations
to inform the consumer and the consumer's consent to conclu-
sion of the contract and, where appropriate, its performance,
can be placed on the supplier.

Any contractual term or condition providing that the burden
of proof of the respect by the supplier of all or part of the
obligations incumbent on him pursuant
to this Directive
should lie with the consumer shall be an unfair term within the
meaning of Council Directive 93/13/EEC of 5 April 1993 on
unfair terms in consumer contracts (1).

Article 16

Transitional measures

rules which are in
Member States may impose national
conformity with this Directive on suppliers established in a
Member State which has not yet transposed this Directive and
whose law has no obligations corresponding to those provided
for in this Directive.

Article 17

Directive 90/619/EC

In Article 15(1) of Directive 90/619/EEC the first subparagraph
shall be replaced by the following:

Each Member State shall prescribe that a policyholder
‘1.
who concludes an individual
life-assurance contract shall
have a period of 30 calendar days, from the time when he
was informed that the contract had been concluded, within
which to cancel the contract.’

Article 18

Directive 97/7/EC

Directive 97/7/EC is hereby amended as follows:

1. the first indent of Article 3(1) shall be replaced by the

following:

‘— relating to any financial service to which Directive
2002/65/EC of the European Parliament and of the
Council of 23 September 2002 concerning the distance
marketing of consumer financial services and amending
Council Directive 90/619/EEC and Directives 97/7/EC
and 98/27/EC (*) applies,

(*) OJ L 271, 9.10.2002, p. 16.’;

2. Member States shall, in particular, encourage the bodies
responsible for out-of-court settlement of disputes to cooperate
in the resolution of cross-border disputes concerning financial
services provided at distance.

2. Annex II shall be deleted.

(1) OJ L 95, 21.4.1993, p. 29.

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9.10.2002

Article 19

Directive 98/27/EC

Article 21

Transposition

The following point
Directive 98/27/EC:

shall be added to the Annex of

‘11. Directive 2002/65/EC of

the European Parliament
the Council of 23 September 2002
and of
concerning the distance marketing of
consumer
financial services and amending Council Directive
90/619/EEC and Directives 97/7/EC and 98/27/
EC (*).

(*) OJ L 271, 9.10.2002, p. 16.’

Article 20

Review

this Directive,

the
1.
Following the implementation of
Commission shall examine the functioning of
the internal
market in financial services in respect of the marketing of
those services. It should seek to analyse and detail the diffi-
culties that are, or might be faced by both consumers and
suppliers,
in particular arising from differences between
national provisions regarding information and right of with-
drawal.

Not

2.
later than 9 April 2006 the Commission shall
report to the European Parliament and the Council on the
problems facing both consumers and suppliers seeking to
submit, where
buy and sell
appropriate, proposals to amend and/or further harmonise
the
in
information and right of withdrawal provisions
Community legislation concerning financial services and/or
those covered in Article 3.

services, and shall

financial

1. Member States shall bring into force the laws, regula-
tions and administrative provisions necessary to comply with
later than 9 October 2004. They shall
this Directive not
forthwith inform the Commission thereof.

When Member States adopt
they shall
contain a reference to this Directive or shall be accompanied
by such a reference on the occasion of their official publica-
tion. The methods of making such reference shall be laid
down by Member States.

these measures,

2. Member States shall communicate to the Commission
law which they
the text of the main provisions of national
adopt in the field governed by this Directive together with a
table showing how the provisions of
this Directive corre-
spond to the national provisions adopted.

Article 22

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

Article 23

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 23 September 2002.

For the European Parliament

For the Council

The President

P. COX

The President

M. FISCHER BOEL