Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the implementation of Directive 1997/7/EC of the European Parliament and of the Council of 20 May 1997 on the Protection of Consumers in respect of Distance Contracts
Date: 2006-09-21
Institutions: European Commission
Subjects: approximation of laws, consumer information, consumer protection, contract, distance selling, financial transaction, provision of services

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.9.2006 
COM(2006) 514 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, 
THE EUROPEAN PARLIAMENT AND THE EUROPEAN ECONOMIC AND 
SOCIAL COMMITTEE 

on the implementation of Directive 1997/7/EC 
of the European Parliament and of the Council of 20 May 1997 
on the Protection of Consumers in respect of Distance Contracts 

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PREFACE 

The purpose of this Communication is to report to the Council, the European Parliament and 
the  European  Economic  and  Social  Committee  on  the  implementation  of  Directive 
1997/7/EC  on  the  Protection  of  Consumers  in  respect  of  Distance  Contracts  by  the 
Member States.  

It  also  sets  out  a  questionnaire  for  public  consultation  at  Annex  II.  The  aims  of  the 
questionnaire and the procedure for answering it can also be found in this Annex. 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, 
THE EUROPEAN PARLIAMENT AND THE EUROPEAN ECONOMIC AND 
SOCIAL COMMITTEE 

on the implementation of Directive 1997/7/EC 
of the European Parliament and of the Council of 20 May 1997 
on the Protection of Consumers in respect of Distance Contracts 

(Text with EEA relevance) 

TABLE OF CONTENTS 

PREFACE .................................................................................................................................. 2 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

Introduction .................................................................................................................. 4 

The Main Provisions of the Directive .......................................................................... 5 

Definitions – Article 2.................................................................................................. 6 

Scope of Application – Article 3 exemptions .............................................................. 7 

Prior information requirements – Article 4.................................................................. 8 

Written confirmation of information – Article 5.......................................................... 9 

Right of withdrawal – Article 6 ................................................................................. 10 

Performance – Article 7 ............................................................................................. 11 

Restrictions on the use of certain means of distance communication – Article 10.... 12 

10. 

Conclusions ................................................................................................................ 12 

ANNEX I.................................................................................................................................. 13 

ANNEX II ................................................................................................................................ 15 

ANNEX III............................................................................................................................... 18 

ANNEX IV............................................................................................................................... 19 

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1. 

INTRODUCTION 

All Member States have transposed Directive 1997/7/EC of the European Parliament and of 
the Council of 20 May 1997 on the Protection of Consumers in respect of Distance Contracts1 
(“the  Directive”)  into  national  law  (see  Annex  I).  In  this  document  (the  “Report”),  the 
Commission  will  report  on  the  implementation  of  the  Directive,  as  provided  by  its  Article 
15(4)2. Delays in compliance by the Commission with Article 15(4) were initially due to late 
transposition  by  some  of  the  15  Member  States.  The  Commission  decided  to  postpone 
publication of the Report till after the accession of the 10 Member States, in order to produce 
a Report which covers the situation in all 25 Member States.  

A questionnaire (the “Questionnaire”) is annexed to this Report (Annex II). The aim of this 
Questionnaire is to consult interested parties on a number of issues related to the Directive. In 
particular,  the  Commission  will  look  at  whether  the  national  divergences  in  transposition, 
emanating from the regulatory options in the Directive and the use of the minimum clause at 
Article  14  which  states  that  Member  States  may  introduce  or  maintain  more  stringent 
provisions  to  ensure  a  higher  level  of  consumer  protection  as  long  as  these  measures  are 
compatible with the Treaty, have had an impact on the Internal Market and affected business 
and consumer confidence in cross border trade.  

The Commission does not consider it appropriate to put forward any proposal for revising the 
Directive until the diagnostic phase of the review of the consumer acquis communautaire (the 
“acquis”)  is  concluded  (see  Annex  III).  This  review  aims  at  assessing  possible  failings  in 
terms  of  consumer  protection,  in  particular  in  the  light  of  new  marketing  practices  and 
technologies, such as internet and mobile commerce, and identifying inconsistencies between 
the  different  consumer  directives  under  review.  On  the  basis  of  the  outcome  of  the 
consultation launched by the Questionnaire and of the results of the review, the Commission 
will  consider  the  need  for  further  legislative  initiatives  in  the  field  of  distance  selling  in 
accordance  with  the  better  regulation  objectives  pursued  by  the  Commission  in  terms  of 
simplification of the regulatory environment3. 

In  considering  the  national  transpositions  of  the  Directive,  the  Commission  has  often  made 
use of translations. Some of the national transposition problems identified in this Report may 
therefore emanate from translation problems. 

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3 

OJ L 144, 4.6.1997, p. 19. 
Article  15(4)  stipulates  that  “No  later  than  four  years  after  the  entry  into  force  of  this  Directive  the 
Commission shall submit a report to the European Parliament and the Council on the implementation of 
this Directive, accompanied if appropriate by a proposal for the revision thereof”. 
See  Communication  from  the  Commission  to  the  Council  and  the  European  Parliament  of 
16 March 2005 on Better Regulation for Growth and Jobs in the European Union (COM(2005) 97 final) 
and  Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  of  25  October  2005  on 
Implementing  the  Community  Lisbon  programme:  a  Strategy  for  the  Simplification  of  the  regulatory 
environment  (COM  (2005)  535  final).  The  review  of  the  consumer  protection  acquis  features  in  the 
Simplification Rolling Programme annexed to this latter Communication”. 

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2. 

THE MAIN PROVISIONS OF THE DIRECTIVE 

The Directive aims at ensuring that consumers, who buy goods or services via distance selling 
means,  hence  without  any  face-to-face  contact with  the  supplier,  are  in  no  worse  a  position 
than consumers purchasing with face-to-face contact. 

The Directive covers both goods and services. However, Article 3 limits the application of the 
Directive  by  excluding  certain  types  of  contracts  from  all  or  some  of  the  Directive’s 
provisions. These exemptions are justified on the basis of the nature of the underlying goods 
or  services.  Financial  services,  due  to  their  complexity  and  their  value,  are  amongst  these 
exemptions and have been covered in the Distance Marketing of Financial Services Directive 
2002/65/EC4, which will also undergo a review in the near future5. For this reason, financial 
services  will  not  be  covered  in  this  Report.  The  review  of  Directive  2002/65/EC  will 
nevertheless  take  into  account  the  relevant  findings  of  the  review  of  this  Directive  (e.g. 
findings on “durable medium”).  

Article  4  of  the  Directive  lists  information  the  consumer  must  be  supplied  with  before 
entering into a distance contract. This information corresponds to information which would be 
available  to  a  consumer  if  he  were  purchasing  face-to-face  e.g.  main  characteristics  of  the 
goods  or  services  and  price  including  taxes.  The  Directive  also  prescribes  the  manner  in 
which this information is to be given and its timing.  

To  protect  consumers  after  conclusion  of  the  contract,  Article  5  provides  that  a  consumer 
must  always  be  given  an  address  to  which  he  can  complain.  This  requirement  must  be 
fulfilled  in  writing  or  in  another  durable  medium  within  a  specific  timeframe.  In  addition, 
under  Article  5(1)  most  of  the  prior  information,  along  with  extra  information  which  is 
relevant  after  the  contract  has  been  entered  into  e.g.  existing  after  sales  services  and 
guarantees, is also to be confirmed in this way in most circumstances. 

Since  a  consumer  who  buys  goods  or  services  at  a  distance  cannot  fully  assess  whether  his 
purchase corresponds to what he needs when making the order, the Directive contains a right 
of withdrawal of at least 7 working days. In exercising this right, the consumer does not have 
to justify his decision. He should not incur any penalty, and must be refunded promptly. He 
may only be charged for the cost of return. Under Article 6(3), certain goods and services are 
exempted from the right of withdrawal due to their nature (e.g. perishable goods). 

The  Directive  also  protects  consumers  from  excessive  delays  in  performance.  Hence  under 
Article 7, the contract must be performed within 30 days of the day after the order was sent to 
the supplier. Discretion was granted to Member States to introduce provisions on replacement 
goods  or  services  where  those  originally  ordered  are  unavailable.  Where  this  discretion  has 
not been exercised or a supplier does not provide a replacement, a consumer is entitled to a 
full refund within 30 days.  

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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 , OJ L 271, 9.10.2002, p. 16. 
Commission  Communication  of  6  April  2006  on  the  review  of  Directive  2002/65  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  Directive  97/7/EC  and  98/27/EC 
(COM(2006) 161 final). 

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Article  10  requires  the  prior  consent  of  the  consumer  when  a  supplier  makes  use  of  a  fax 
machine or automatic calling machine. Other means of distance communication can only be 
used where there is no objection from the consumer.  

This  Report  does  not  cover  the  provisions  at  Article  9  on  inertia  selling  since  these  will  be 
replaced  and  fully  harmonised  by  Article  15  of  the  Unfair  Commercial  Practices  Directive 
(UCP)6.  The  provisions  of  Article  8  on  payment  by  card  will  also  not  be  discussed  in  the 
context of this Report in the light of the ongoing negotiations on the Commission Proposal on 
Payment  Services7  which  proposes  the  deletion  of  Article  8.  The  provisions  on  redress 
(Article  11)  will  be  considered  in  the  broader  context  of  the  review  and  the  Commission’s 
work on redress.  

3. 

DEFINITIONS – ARTICLE 2 

Article 2 defines key terms used throughout the Directive. The definition of “consumer” and 
“supplier”  are  not  specific  to  the  regulation  of  distance  sales  and  will  be  considered  in  the 
broader context of the review of the acquis.  

The definition of “distance contract” at Article 2(1) has not given rise to specific problems. 
Member  States  have  generally  followed  the  wording  of  the  Directive  relatively  faithfully. 
Although  the  Commission  has  not  received  specific  complaints  concerning  the  notion  of 
“organised distance sales or service provision scheme”, it feels that consumers may not be 
aware  that  the  Directive  does  not  apply  where  a  supplier  trades  at  a  distance  on  an  ad-hoc 
basis. Several Member States including France, Latvia and Slovakia have not transposed this 
notion, maybe to overcome this problem.  

The Commission believes that the current definition of “means of distance communication” is 
flexible  enough  to  cover  new  means  of  distance  communication  such  as  m-commerce  (i.e. 
commerce  undertaken  by  short  message  service).  Its  transposition  nevertheless  needs  to  be 
clarified  with  certain  Member  States.  The  Czech  Republic,  for  instance,  appears  to  have 
excluded “correspondence”.  

The Czech Republic, Denmark, Germany, France, Greece, Latvia, Poland, Sweden, Austria, 
Slovakia  and  Slovenia  have  not  provided  the  Commission  with  a  transposition  of  the 
definition  of  “operator  of  means  of  distance  communication”  whereas  Spain,  Lithuania, 
Malta and the Netherlands’ transpositions need to be clarified.  

Further questions relating to definitions will appear in other parts of this Report, as and when 
they arise. 

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Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair 
business-to-consumer  commercial  practices  in  the  internal  market  and  amending  Council  Directive 
84/450/EEC,  Directives  97/7/EC,  98/27/EC  and  2002/65/EC  of  the  European  Parliament  and  of  the 
Council  and  Regulation  (EC)  No  2006/2004  of  the  European  Parliament  and  of  the  Council  (“Unfair 
Commercial Practices Directive”), OJ L 149, 11.6.2005 p. 22. 
proposed Article 81 of COM(2005) 603 final. 

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4. 

SCOPE OF APPLICATION – ARTICLE 3 EXEMPTIONS 

Article 3 limits the scope of the Directive by excluding certain distance contracts from all or 
part of the Directive’s provisions. The Commission needs to establish whether the exemptions 
are still appropriate, whether they need to be revised, expanded or repealed. This Report will 
consider a number of problems encountered by the Commission. 

Member  States  have  transposed  these  exemptions  in  different  ways.  For  example,  the 
Netherlands only appear to have excluded the construction of immovable property but not its 
sale.  

The  Commission  has  encountered  a  number  of  issues  needing  clarification.  For  instance, 
Belgium has not provided the Commission with its transposition of the exemptions at Article 
3, except for financial services. The Commission knows that at least some of these have been 
transposed.  

In  addition  to  the  exemptions  provided  for  in  Article  3,  Spain  and  Luxembourg  provide  in 
their  national  distance  selling  legislation  for  general  exemptions  for  contracts  concluded  by 
electronic means although the E-commerce Directive8 specifies that it is without prejudice to 
the Directive.  

The  relationship  between  the  Timeshare  Directive9  and  the  Directive  and  the  meaning  of 
“immovable  property  rights”  may  need  to  be  clarified.  Some  Member  States  including 
Hungary, Denmark, Slovenia and the UK have expressly excluded timeshare fully or in part 
from the scope of their transposition under the exemptions whilst others have not.  

The increase in popularity of on-line auctions since the adoption of the Directive has led to a 
significant  rise  in  consumer  complaints.  Whereas  originally  websites  such  as  eBay  were 
geared towards C2C transactions of second hand goods, they are increasingly being used for 
B2C  transactions  of  new  goods.  The  Commission  is  aware  of  national case  law  on  whether 
websites  such  as  eBay  amount  to  auction  houses  and  are  therefore  exempted  from  the 
Directive.  The  transposition  checks  have  confirmed  the  need  to  look  at  the  meaning  of 
“auction” in national laws. In France, for instance, the exemption has been limited to “public” 
auctions; in Denmark the exemption applies to auctions organised in such a way that a large 
proportion of the bidders normally is present at the place of the auction. Some Member States 
also appear to have only partially transposed the exemption (e.g. in Estonia, the exemption for 
auctions is limited to the non application of the right of withdrawal).  

Certain Member States seem to have extended the partial exemptions at Article 3(2) to all the 
provisions of the Directive (e.g. Slovenia, Czech Republic, and Greece). The laws of others 
are  unclear  in  this  respect  (e.g.  Latvia;  Finland,  Lithuania;  the  Netherlands;  Slovenia; 
Denmark,  Greece,  Poland,  Hungary).  For  instance,  the  “regular  roundsmen”  exemption  at 
Article  3(2)  first  indent  may  have  caused  interpretation  problems.  The  Commission’s 
translation  of  the  Finnish  distance  selling  law  refers  to  “regular  distribution  system”  which 

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Article 1 (3) read together with recital 11 of Directive 2000/31/EC of the European Parliament and of 
the  Council  of  8  June  2000  on  certain  legal  aspects  of  information  society  services,  in  particular 
electronic commerce, in the Internal Market ('Directive on electronic commerce'), OJ L 178, 17.7.2000, 
p. 1. 
Directive 94/47/EC of the European Parliament and 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, OJ L 280, 29.10.1994, p. 83. 

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may  be  broader.  The  Hungarian  transposition  applies  to  goods  delivered  daily  to  the 
consumer.  New  market  developments  such  as  the  rise  in  internet  grocery  shopping  suggest 
this exemption may need to be re-examined. Use of the minimum clause has also been made 
in  the  context  of  these  exemptions.  For  instance,  the  Polish  transposition  does  not  refer  to 
beverages or goods for everyday consumption. 

The exemption at Article 3(2) second indent may also have caused interpretation problems in 
a  number  of  Member  States.  For  example,  Latvia,  Lithuania  and  Poland  have  extended  the 
exemption  to  contracts  where  the  date  for  execution  is  determined  after  conclusion  of  the 
contract. The European Court of Justice ruling in the Easycar10 case, in which the Court ruled 
that  car  hire  amounts  to  “transport”  within  the  meaning  of  the  Directive,  indicates  that  the 
Directive does not cover some distance contracts which the Commission and at least certain 
Member States intended it to11. The concept of “leisure services” may also be unclear. This 
may explain why the right for suppliers not to apply Article 7(2) to outdoor leisure services in 
specific circumstances has only been transposed by Cyprus, Ireland, Portugal and the United 
Kingdom. In those Member States where this exemption has been applied, the imprecision of 
“specific circumstances” may create legal uncertainty for both consumers and business. 

5. 

PRIOR INFORMATION REQUIREMENTS – ARTICLE 4 

The prior information requirements set out at Article 4 of the Directive raise some important 
interpretation questions. 

Although a significant number of Member States have transposed Article 4(1) literally, most 
of  them  have  also  used  the  minimum  clause  to  enhance  national  consumer  protection.  The 
transposition  checks  have  revealed  that  some  requirements  have  been  transposed  poorly  in 
some Member States. This Report focuses on those requirements which may have been badly 
transposed because of possible interpretation problems with the Directive.  

The timing and modalities for giving prior information may need to be reconsidered to ensure 
consumers  are  adequately  informed  when  deciding  whether  to  enter  into  a  transaction.  The 
notions  of  “in  good  time  prior  to  the  conclusion  of  any  contract”  at  Article  4(1)  and  “in  a 
clear  and  comprehensible  manner  in  any  way  appropriate  to  the  means  of  distance 
communication  used”  at  Article  4(2)  have  led  to  divergent  interpretations.  For  example,  it 
seems  that  in  Poland  prior  information  must  be  provided  before  a  means  of  distance 
communication is used.  

Prior  information  regarding  price  at  Article  4(1)(c)  is  a  good  example  of  how  prior 
information  can  determine  whether  a  consumer  will  enter  into  a  transaction.  Some  Member 
States,  including  Belgium  and  Sweden  have  not  explicitly  referred  to  taxes  in  their 
transposition. The Commission will clarify with them whether it is a principle of national law 
that  taxes  are  always  included  in  references  to  price.  It  will  also  consider  whether  the 
Directive  should  explicitly  refer  to  other  forms  of  charges  made  to  the  consumer  e.g. 
booking/handling fees taking into account Article 7(4)(c) of the UCP. 

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Case C-336/03 Easycar (UK) Ltd v Office of Fair Trading, ECR 2005, p. I-1947. 
France, Spain and the United Kingdom. 

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The Commission is also aware of problems concerning price transparency and the operation 
of  premium  rate  services.  The  Commission  will  examine  whether  the  provisions  of  the 
Directive  relevant  to  premium  rate  services  need  to  be  reinforced  e.g.  Article  4(1)(g)  prior 
information on the cost of using the means of distance communication when it is calculated at 
a rate other than the basic rate . 

A majority of Member States have made use of the minimum clause to make it compulsory to 
indicate  an  address  for  complaints  (e.g.  Austria,  Czech  Republic,  Denmark,  Finland, 
Luxembourg, Malta, Slovakia, Slovenia) and many have chosen to indicate whether or not the 
right of withdrawal applies (e.g. Belgium, Germany, Italy, the Netherlands, Slovenia, Spain).  

The minimum clause has also been used in a number of other ways. For example, in Italy the 
consumer can request the prior information in Italian where personal communication means 
are  used;  Estonia  and  Spain  have  introduced  additional  information  requirements  on 
replacement goods.  

A  significant  number  of  Member  States  have  not  expressly  transposed  the  good  faith 
requirement at Article 4(2) and/or make no express reference to the protection of certain types 
of consumers, including minors. These provisions will be considered further in the course of 
the review. 

6. 

WRITTEN CONFIRMATION OF INFORMATION – ARTICLE 5 

Article  5  provides  for  confirmation  in  writing  of  certain  information,  including  most  of  the 
information referred to in Article 4. For this reason, Article 5 must be considered alongside 
Article 4. The timing of written confirmation needs to be discussed with a number of Member 
States (Denmark, Germany, Hungary, Latvia, Lithuania, Poland).  

Enquiries concerning the information to be confirmed in writing must also be made with some 
Member States since some may have omitted to prescribe confirmation of all, or part of the 
required information (e.g. in the Czech Republic only information concerning the identity and 
location of the supplier must be confirmed in writing). 

Moreover,  the  minimum  clause  has  led  to  divergences  in  national  requirements  such  as 
language  requirements  (Cyprus,  Greece,  Spain)  or  additional  information  to  be  provided  in 
writing.  Confirmation  of  information  concerning  the  right  of  withdrawal  in  particular  has 
generated  additional  national  rules.  Cyprus  has  prescribed  a  specimen  notice  of  withdrawal 
which  must  be  communicated  to  the  consumer  with  the  written  confirmation.  In  Spain,  a 
supplier must provide a withdrawal/cancellation document containing prescribed information 
with the written confirmation. Belgium has gone further by prescribing standard clauses in a 
given format and the consequences of failure to do so.  

Some Member States and stakeholders have raised the need to clarify the concept of “durable 
medium” at Article 5(1) in the light of Directive 2002/65/EC and new technologies. Italy has 
avoided  interpretation  problems  by  introducing  stricter  rules  i.e.  confirmation  can  only  be 
given  in  another  durable  medium  if  the  consumer  so  chooses.  Lithuania,  Czech  Republic, 
Slovakia and Poland have opted not to refer to “durable medium”. 

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7. 

RIGHT OF WITHDRAWAL – ARTICLE 6 

The right of withdrawal introduced in four consumer directives including at Article 6 of the 
Directive, is often used as a prime example of inconsistencies in the acquis (e.g. the so-called 
“cooling-off”  periods  vary  from  one  directive  to  another)12  and  of  national  divergences 
resulting  from  the  use  of  the  minimum  clause. In the field of distance selling, the Directive 
sets  a  minimum  period  of  seven  working  days  for  the  consumer  to  withdraw  from  the 
contract.  Member  States  have  transposed  this  requirement  in  a  multitude  of  ways,  the  most 
common being seven working days or 14 calendar days (see Annex IV).  

The transposition of Article 6(1), which prescribes how long and from when the cooling off 
period runs, has not generated many problems. The French cooling off period is calculated in 
“jours francs”, the exact meaning of which must be clarified with the French authorities. The 
point  from  which  the  period  starts  to  run  raises  more  fundamental  questions.  For  instance, 
“receipt” of goods may be subject to different interpretations in the Member States. The issue 
of when receipt takes place has been raised on occasion (e.g. if a parcel is delivered when the 
consumer is absent, does receipt occur when the postman leaves the card notifying attempted 
delivery  or  when  the  consumer  picks  up  the  parcel  from  the  post  office)  and  will  be 
considered in the broader review work. The Commission also wonders whether the treatment 
of  deliveries  in  batches  needs  to  be  re-examined  in  the  course  of  the  review.  In  Germany, 
Estonia, Latvia and Sweden, national laws specify that the period runs from the first delivery 
of  part  of  the  goods.  Recital  10  appears  to  allow  this  interpretation.  In  the  Commission’s 
opinion,  where  an  order  covers  different  products,  the  consumer  should  be  entitled  to  a 
cooling off period after the delivery of each of the products ordered. This should not be the 
case where an order of a single product is delivered in batches. For example, an internet order 
of  different  books  (e.g.  a  novel  and  a  biography)  which  cannot  be  delivered  in  one  batch 
because of unavailability of one of the items should not be treated in the same fashion as a 
contract for the delivery of a set of encyclopaedia over a period of time.  

The  financial  consequences  of  withdrawing  from  a  contract  and/or  the  timing  of 
reimbursement  (Article  6(1)-(2))  must  also  be  discussed  with  a  number  of  Member  States 
(e.g. the Czech Republic appears not to have transposed Article 6(2); Germany and Lithuania 
have not referred to the time limit for refund). Hungary’s transposition is unclear, as is Austria 
and Sweden’s concerning penalties. In Finland, the refund must be executed within 30 days of 
return.  Since  the  Directive  is  silent  as  to  when  the  30  day  period  runs  from  e.g.  notice  of 
withdrawal,  receipt  of  the  goods  by  supplier,  it  is  unclear  whether  this  interpretation  is 
acceptable. 

Article 6(3) lists exemptions to the right of withdrawal. Overall, these exemptions appear to 
have been transposed adequately, despite the need for some clarifications (e.g. the exemption 
at  Article  6(3)  fourth  indent  may  be  wider than  the  directive  allows  in  Spain,  Luxembourg, 
Italy and Poland). These exemptions will be closely examined in the context of the review to 
establish whether they are up-to-date.  

12 

The  Timeshare  Directive  refers  to  a  minimum  of  10  calendar  days  whereas  the  Doorstep  Selling 
Directive  85/577/EEC  refers  to  a  minimum  of  7  days,  (Council  Directive  85/577/EEC  of 
20 December 1985  to  protect  the  consumer  in  respect  of  contracts  negotiated  away  from  business 
premises, OJ L 372, 31.12.1985, p. 31). The Distance Marketing of Financial Services Directive refers 
to 14 calendar days. 

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The  minimum  clause  has  again  been  used  when  transposing  Article  6.  Some  of  the 
exemptions at Article 6(3) have not been transposed evenly across Europe (e.g. in Belgium, 
the exemptions do not apply where a supplier has failed to mention in the course of providing 
prior information that the right of withdrawal does not exist; in Denmark the exemption for 
newspapers only applies in given circumstances). National divergences are particularly clear 
when looking at the modalities for exercising the right of withdrawal: in Portugal the goods 
must be returned within 30 days; the form of the notice of withdrawal is prescribed in some 
Member  States;  a  number  of  Member  States,  including  the  United  Kingdom,  Finland  and 
Portugal  have  made  provisions  concerning  a  duty  of  care  whilst  the  goods  are  in  the 
consumer’s possession. Member States have also made different uses of the regulatory option 
concerning  the  cost  of  returning  the  goods,  including  payment  by  the  consumer  in  all  cases 
(e.g.  Cyprus),  payment  by  the  consumer  in  certain  circumstances  (e.g.  United  Kingdom, 
Ireland, Belgium), payment by the consumer at the supplier’s discretion (Estonia, Malta) and 
payment by the supplier where this can be done by normal post (Finland). In Estonia, there is 
a 10 euro cap on the cost to be borne by the consumer when returning the goods. 

Not all Member States have notified their transposition of Article 6(4) covering cancellation 
of  credit  agreements  upon  exercise  of  the  right  of  withdrawal  (e.g.  Slovenia)  and  the 
transposition needs to be clarified with others (e.g. Czech Republic, Cyprus, Poland).  

Finally, it is worth noting that the Belgian transposition measure allows for specific rules for 
small  and  medium  sized  enterprises  to  be  introduced.  Although  the  Commission  has  no 
evidence that this power has been used, any such rules may be in breach of the Directive. 

8. 

PERFORMANCE – ARTICLE 7 

Overall, the transposition of Article 7 dealing with performance of the contract gives rise to 
problems associated with timing. It should be pointed out that neither the Czech Republic nor 
Germany have notified their transposition of Article 7(1).  

The main comment to be made about Article 7 relates to the inconsistent use of terminology 
throughout the Directive and within Article 7 in particular. Indeed, Article 7 refers to “days” 
whereas  Article  6  refers  to  “working  days”.  In  addition,  the  point  from  which  calculation 
periods run is specified in Article 7(1) (“from the day following” the order) and unspecified in 
Article  7(2).  As  presently  drafted,  Article  7(2)  has  been  interpreted  in  a  number  of  ways. 
Some Member States have interpreted the timing requirement as applying only to the refund, 
others  to  both  the  refund  and  the  notification  of  non  availability.  Such  issues  need  to  be 
addressed with Estonia, Greece, Hungary, Latvia, Lithuania, the Netherlands, Austria and the 
United  Kingdom.  Conversely,  some  Member  States  such  as  Finland,  Cyprus,  Slovenia  and 
Slovakia  have  tightened  all  or  some  of  the  time  requirements.  Others,  like  France  and 
Denmark, impose a financial penalty in the form of interest. 

The transposition of Article 7(3) is also weak in some Member States. For example, in Italy 
there is no reference to the “clear and comprehensible manner” in which the consumer must 
be  informed  of  the  possibility  for  the  supplier  to  provide  replacement  goods  or  services. 
Estonia has avoided this kind of problem by incorporating this information requirement to the 
provisions  transposing  Articles  4  and  5.  Belgium,  Luxembourg,  Denmark,  Germany  and 
Austria  appear  to  have  exercised  their  discretion  by  not  transposing  the  replacement  goods 
provisions at Article 7(3). 

EN 

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9. 

RESTRICTIONS  ON  THE  USE  OF  CERTAIN  MEANS  OF  DISTANCE  COMMUNICATION  – 
ARTICLE 10 

Many Member States have failed to notify all, or part of, their national provisions transposing 
this  Article.  This  may  be  justified  by  the  fact  that  subsequent  Community  legislation  also 
covers  these  restrictions.  Indeed,  the  Directive  on  privacy  and  electronic  communications 
2002/58/EC13  requires  Member  States  to  ensure  that  the  use  of  automated  calling  systems 
without  human  intervention,  facsimile  machines  or  electronic  mail  be  only  allowed  for  the 
purposes  of  direct  marketing  in  respect  of  subscribers  who  have  given  their  prior  consent 
(“opt-in” system). As far as other forms of distance communication are concerned, it remains 
up to Member States to decide whether to adopt an opt-in or opt-out system. 

10. 

CONCLUSIONS 

The  transposition  of  the  Directive  in  the  Member  States  raises  a  number  of  confirmed  or 
apparent problems. Many of these may emanate from the wording of the Directive. Although, 
the  Directive  appears  to  be  flexible  enough  to  cover  new  technologies  and  forms  of 
marketing,  the  practical  application  of  the  Directive  may  not  weather  the  test  of  time.  The 
proper  execution  of  the  rights  and  obligations  set  out  in  the  Directive  is  not  always 
practicable.  In  addition,  the  transposition  checks  have  revealed  significant  divergences 
between national laws as a result of the use of the minimum clause. It is unclear at this stage 
to  what  extent  these  divergences  affect  the  proper  functioning  of  the  Internal  Market  and 
consumer  confidence.  The  Commission  must  establish  this  in  order  to  decide  whether  the 
Directive needs to be revised.  

These issues will all be examined further in the course of the review of the acquis. In doing 
so, the Commission will need to take into account not only consumer protection legislation, 
but also other fields of community legislation including e-commerce and privacy legislation. 

13 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the 
processing  of  personal  data  and  the  protection  of  privacy  in  the  electronic  communications  sector 
(Directive on privacy and electronic communications), OJ L 201, 31.7.2002, p. 37. 

EN 

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ANNEX I 

TABLE OF NATIONAL IMPLEMENTATION MEASURES OF MEMBER STATES 

Member State 

Implementing measures known to the Commission  
on 1 April 2006 

Date law came 
into force 

Österreich 

Belgique 

Bundesgesetz,  mit  dem  Bestimmungen  über  den  Vertragsabschluß  in 
Fernabsatz  in  das  Konsumentenschutzgesetz  eingefügt  und  das 
Bundesgesetz  gegen  den  unlauteren  Wettbewerb  1984  sowie  das 
Produkthaftungsgesetz  geändert  werden  (Fernabsatz-Gesetz)  BGBI. 
Nr. 185/1999 

Loi  du  14  juillet  1991  sur  les  pratiques  du  commerce  et  sur 
l’information et la protection du consommateur, modifiée par la loi du 
25  mai  1999  transposant  la  directive  européenne  concernant  la 
protection des consommateurs en matière de contrats à distance. 

1 June 2000 

1 November 1999? 

Κypros 

Ο περί της Σύναψης Καταναλωτικών Συμβάσεων εξ Αποστάσεως 
Νόμος του 2000 (Ν.14(Ι)/2000)  

Česká republika   Zákon  č.  367/2000  Sb.,  kterým  se  mění  zákon  č.  40/1964  Sb., 
občanský  zákoník,  ve  znění  pozdějších  předpisů,  a  některé  další 
zákony  

28 March 2000 

1 January 2001 

Danmark 

Eesti  

Suomi 

France 

Deutschland 

Ellás  

Bekendtgørelse  af  lov  om  visse  forbrugeraftaler  (Dørsalg  mv., 
fjernsalg  og  løbende  tjenesteydelser)  (Forbrugeraftaleloven),  som 
ændret ved lov nr 262 af 6. maj 1993, lov nr. 1098 af 21.december og 
lov nr. 442 af 31. maj 2000. 

1 June 2000 and 
1 July 2000 

Võlaõigusseadus RT I 2004, 37, 255 

Laki  kuluttajansuojalain  muuttamisesta,  15.12.2000 
säädöskokoelma 2000 N° 1072) 

1 May 2004 

(Suomen 

1 March 2001 

Laki sopimattomasta menettelystä elinkeinotoiminnassa annetun lain 2 
§:n  muuttamisesta,  15.12.2000  (Suomen  säädöskokoelma  2000  N° 
1073). 

Articles  5  à  15  de  l’ordonnance  n°  2001-741  du  23  août  2001  et 
Article  36  de  la  Loi  n°2001-1062 du  15  novembre  2001  relative à  la 
sécurité quotidienne  

über  Fernabsatzverträge 

Gesetz 
des 
Verbraucherrechts  sowie  zur  Umstellung  von  Vorschriften  auf  Euro 
vom 27. Juni 2000  

andere  Fragen 

und 

25 August 2001 

30 June 2000 

Κοινή  Υπουργική  Απόφαση  Ζ1-496/2000  περί  πωλήσεων  από 
απόσταση  και  συγκριτικής  διαφήμισης,  τροποποιητική  του 
Ν.2251/94 για την Προστασία των Καταναλωτών  

18 December 2000 

Magyarország 

1997. évi CLV. törvény a fogyasztóvédelemről 

No information 

17/1999. 
szerződésekről 

(II.  5.)  Korm. 

rendelet  a 

távollévők  között  kötött 

Ireland 

European  Communities  (Protection  of  Consumers  in  Respect  of 
Contracts  made  by  Means  of  Distance  Communication)  Regulations 
2001 (S.I. 207 of 2001) 

15 May 2001 

EN 

13 

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Italia 

Decreto Legislativo 6 settembre 2005, n.206, “Codice del consumo, a 
norma dell’ articolo 7 della legge 29 luglio 2003, n.229”. 

23 October 2005 

(originally 
transposed in a 
decree taking effect 
in October 1999) 

No information 

Latvija  

Lietuva 

Patērētāju tiesību aizsardzības likums, Grozījumi: 22.11.2001. likums  

Miniostru kabineta 2002.gada.28 maija noteikumi Nr 207 “Noteikumi 
par distances lîgumi” 

Lietuvos  Respublikos  vartotojų  teisių  gynimo  įstatymo  pakeitimo 
įstatymas Nr. VIII – 1946 (nauja redakcija) 

No information 

Lietuvos Respublikos ūkio ministro 2001 m. rugpjūčio 17 d. įsakymas 
Nr.258  „Dėl  daiktų  pardavimo  ir  paslaugų  teikimo,  kai  sutartys 
sudaromos naudojant ryšio priemones, taisyklių patvirtinimo 

Luxembourg 

Loi  du 16  avril  2003  concernant  la  protection  des  consommateurs  en 
matière de contrats à distance et abrogeant l’article 7 de la loi modifiée 
du 25 août 1983 relative à la protection juridique du consommateur  

11 May 2003  

Malta  

Nederland 

Polska 

Portugal 

Slovenska 
republika  

Slovenija 

España  

Sverige 

United 
Kingdom 

Distance Selling Regulations (LN186/01) 

Consumer Affairs Act (Chapter 378) 

Wet  van  21.12.2000  tot  aanpassing  van  Boek  7  van  het  Burgerlijk 
Wetboek aan richtlijn nr. 97/7/EG van het Europees Parlement en de 
Raad  van  de  Europese  Unie  van  20  mei  1997  betreffende  de 
bescherming  van  de 
afstand  gesloten 
overeenkomsten (PbEG L 144) (21.12.2000)  

consument  bij  op 

1 January 2002 

1 February 2001 

Ustawa  z  dnia  2  marca  2000r.  o  ochronie  niektórych  praw 
konsumentów  oraz  o  odpowiedzialności  za  szkodę  wyrzadzoną  przez 
produkt niebezpieczny 

30 June 2000 

Decreto-Lei nº 143/2001 de 26 de Abril 2000  

Zákon  č.  108/2000  Z.  z.  o  ochrane  spotrebiteľa  pri  podomovom 
predaji a zásielkovom predaji  

25 May 2001 

1 April 2000 

Zakon  o  varstvu  potrošnikov  -  uradno  prečiščeno  besedilo  (N  700-
01/190-6/24 (ZVPot-UPB1)) 

2003 

Ley 47/2002, de 19 de diciembre, de reforma de la Ley 7/1996, de 15 
de enero, de Ordenación del Comercio Minorista, para la transposición 
al  ordenamiento  jurídico  español  de  la Directiva  97/7/CE,  en  materia 
de  contratos  a  distancia,  y  para  la  adaptación  de  la  Ley  a  diversas 
Directivas comunitarias  

(2000:274)  om  konsumentskydd  vid  distansavtal  och 

Lag 
hemforsaljningsavtal 

The  Consumer  Protection  (Distance  Selling)  Regulations  2000  (SI 
2000  No.  2334)  as  amended  by  The  Consumer  Protection  (Distance 
Selling) (Amendment) Regulations 2005 (SI 2005 No. 689) 

1 January 2003  

1 June 2000 

31 October 2000 

EN 

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ANNEX II 

QUESTIONS FOR PUBLIC CONSULTATION 

The  Commission  wishes  to  collect  the  Member  States  and  stakeholders’  views  on  the 
application of the Directive and its suitability for new market conditions and/or products. To 
this  end,  a  list  of  questions  for  public  consultation  has  been  compiled.  These  should  be 
examined  alongside  the  Report  to  which  the  Questionnaire  is  annexed  in  order  to  get  a  full 
picture  of  the  issues  the  Commission  has  identified  so  far  in  the  field  of  distance  selling. 
Submissions on problems which have not been raised in the Report or this Questionnaire are 
also welcome.  

After the consultation period has ended, the Commission will publish a summary of responses 
on its website. Responses and comments of interested parties will also be made public on the 
internet  site  of  the  European  Commission,  unless  the  sender  explicitly  requests  otherwise. 
These responses will be fed into the evidence base which is currently being gathered in order 
to pursue the broader work on the review of the consumer regulatory framework. 

The Commission will also assess the need for organising a public hearing to further the debate 
on the issues  raised in the Report  and this Questionnaire. In doing so, the Commission will 
also take into account the outcome of the public consultation which will be launched by the 
Green Paper on the broader review of the consumer regulatory framework. This Green Paper 
will take stock of the state of play of the work of the review of the acquis. On the basis of the 
evidence  gathered  so  far,  it  will  also  set  out  possible  options  for  reform  of  the  consumer 
regulatory framework and seek the views of Member States and stakeholders on the best way 
forward. Adoption of this Green Paper is planned for the autumn 2006.  

All interested parties who wish to respond to this Questionnaire should submit replies to the 
European  Commission  by  21.11.2006.  Please  answer  as  fully  as  possible  and  send  your 
comments (marked “First consultation on the Distance Selling Directive”) to either: 

European Commission 
Directorate-General for Health and Consumer Protection 
Rue de la Loi 200 
B-1049 Brussels 
Belgium 

or by e-mail to SANCO-B2@ec.europa.eu. 

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Article 2 – Definitions  

1. Are the current definitions of “consumer” and “supplier” adequate for the purposes of 
the field regulated by Directive 97/7/EC? (this issue will also be considered in the broader 
consumer acquis review work) 

2. Is the current definition of a “distance contract” clear enough? In particular, is the term 
“organised  distance  sales  or  service  provision  scheme”  clear  or  should  consumer 
protection be extended to all distance contracts regardless of whether the supplier usually 
trades at a distance?  

3. Is the current definition of “means of distance communication” clear enough?  

4.  Is  there  any  added  value  to  “operator  of  means  of  distance  communication”  being 
defined?  

5.  Are  definitions  unclear  in  relation  to  any  other  concept,  or  are  there  other  concepts 
relating to distance selling in need of definition? 

Article 3 – Exemptions 

6. Do the current exemptions need to be revised, expanded or repealed in the light of new 
market  developments  (e.g.  downloading  of  music  or  other  services)  and/or  technologies 
(e.g.  emergence  of  m-commerce)  or  interpretation  problems  (e.g.  European  Court  of 
Justice  ruling  on  the  Easycar  case  in  which  it  was  decided  that  car  hire  amounts  to  a 
“transport service” and is as a consequence excluded from the scope of the Directive; use 
of broad terminology such as “leisure services”)? 

7. Has the insertion of a definition of financial services by Article 18 of Directive 2002/65 
in  the  Directive)  solved  any  transposition  problems  Member  States  may  have  originally 
encountered when transposing the Directive? (this issue will be considered in more detail 
in the course of the review of Directive 2002/65) 

8. Does the exemption covering the construction and sale of immovable property or rights 
related  to  immovable  property  cause  any  interpretation  problem  e.g.  interaction  of  this 
Directive with the Timeshare Directive?  

9. Should auctions or specific types of auctions be covered by the Directive? 

Article 4 – Prior information 

10. Can Article 4 be improved (e.g. clearer provisions concerning timing and/or format of 
the  prior  information;  introduction  of  additional  requirements  or  repeal  of  certain 
requirements)? 

11. Are all groups of consumers (e.g. minors) sufficiently protected by the Directive? If 
not, how can their protection be improved? 

EN 

16 

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Article 5 – Written confirmation 

12.  Can  Article  5  be  improved  e.g.  introduction  of  a  definition  of  “durable  medium”  as 
defined  in  Directive  2002/65/EC;  introduction  of  further  information  to  be  confirmed  in 
writing or deletion of some information)  

13.  Would  the  merger  of  the  information  requirements  at  Article  4(1)  and  5(1)  simplify 
these rules for both consumers and suppliers? 

Article 6 – Right of withdrawal 

14.  Do  you  think  the  length  of  the  distance  selling  cooling  off  period  should  be 
harmonised across the Member States and if, so how long should this period be? (the issue 
of whether the length of the cooling off periods in the different consumer directives should 
be  harmonised  across  the  acquis  will  be  considered  in  the  broader  consumer  acquis 
review work. However, you may wish to comment here)? 

15. Do the rules concerning the exercise of the right of withdrawal and its consequences 
need to be clarified? 

16. Do the current exemptions to the right of withdrawal need to be revised, expanded or 
repealed in the light of new market developments and/or technologies? 

17.  Should  the  provisions  concerning  the  cost  of  return  be  harmonised  in  the  field  of 
distance  selling  and  if  so,  who  should  pay  the  cost  of  return?  (this  issue  will  also  be 
considered in the broader consumer acquis review work) 

Article 7 - Performance 

18. Do the provisions of Article 7 ensure proper performance of distance contracts e.g. are 
the rules concerning timing and form clear? 

19.  Should  the  optional  provision  concerning  substitute  goods  at  Article  7(3)  be  made 
compulsory to raise the level of consumer protection evenly across the Internal Market? 

Article 10 

20. Should Article 10 be expressly repealed to clarify the relationship between Article 10 
and the Directive 2002/58/EC on privacy and electronic communications? 

General questions 

21. How has the use of the minimal clause i.e. the possibility for Member States to retain 
or  introduce  provisions  offering  a  higher  standard  of  consumer  protection  affected  cross 
border  trade  and  competition  e.g.  has  it  constituted  a  hindrance  to  cross-border  trade  or 
raised obstacles to the exercise of the right of establishment? If so, please give examples. 

22. Have you encountered any other problem with the regulation of distance selling as it 
currently stands?  

23. Do you feel that there are other aspects of distance selling that require regulation? 

EN 

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ANNEX III 

CONSUMER DIRECTIVES UNDER REVIEW 

Council  Directive  85/577/EEC  of  20  December  1985  to  protect  the  consumer  in  respect  of 
contracts negotiated away from business premises, OJ L 372, 31.12.1985, p. 31. 

Council  Directive  90/314/EEC  of  13  June  1990  on  package  travel,  package  holidays  and 
package tours, OJ L 158, 23.6.1990, p. 59. 

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95, 
21.4.1993, p. 29. 

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 a 
right to use immovable properties on a timeshare basis, OJ L 280, 29.10.1994, p. 83. 

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, OJ L 144, 4.6.1997, p. 19. 

Directive  98/6/EC  of  the  European  Parliament  and  of  the  Council  of  16  February  1998  on 
consumer protection in the indication of the prices of products offered to consumers, OJ L 80, 
18.3.1998, p. 27. 

Directive  98/27/EC  of  the  European  Parliament  and  of  the  Council  of  19  May  1998  on 
injunctions for the protection of consumers' interests, OJ L 166, 11.6.1998, p. 51. 

Directive  1999/44/EC  of  the  European  Parliament  and  of  the  Council  of  25  May  1999  on 
certain aspects of the sale of consumer goods and associated guarantees, OJ L 171, 7.7.1999, 
p. 12. 

EN 

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ANNEX IV  

LENGTH OF THE COOLING OFF PERIOD IN THE MEMBER STATES 

Member State 

Length of cooling off period 

Austria 
Belgium  
Cyprus 
Czech Republic  
Denmark 
Estonia 
Finland 
France  

Germany  
Greece  
Hungary 
Ireland 
Italy 
Latvia 
Lithuania 
Luxembourg 
Malta 
Netherlands 
Poland  
Portugal 
Slovakia 
Slovenia 
Spain 
Sweden 
United Kingdom  

7 working days (expressly excludes Saturday) 
7 working days  
14 days 
14 days 
14 days 
14 days 
14 days 
7 working days? (meaning of “jours francs” in need of 
clarification) 
2 weeks 
10 working days 
8 working days 
7 working days 
10 working days 
14 days minimum 
7 working days 
7 working days 
15 days 
7 working days 
10 days 
14 days 
7 working days 
15 days 
7 working days based on the law of country of delivery 
14 days 
7 working days 

EN 

19 

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