Green Paper on the Review of the Consumer Acquis
Date: 2007-02-08
Institutions: European Commission
Subjects: Community acquis, EU law, amendment of a law, consumer protection, drafting of EU law, simplification of legislation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 8.2.2007 
COM(2006) 744 final 

GREEN PAPER 

on the Review of the Consumer Acquis 

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GREEN PAPER 

on the Review of the Consumer Acquis 

Table of Contents 

1. 

2. 

2.1. 

2.2. 

3. 

3.1. 

3.2. 

3.3. 

4. 

4.1. 

4.2. 

4.3. 

4.4. 

4.5. 

4.6. 

Introduction .................................................................................................................. 3 

Background .................................................................................................................. 3 

Objective and status of the Review.............................................................................. 3 

Relationship between the Review and other Community legislation .......................... 5 

The Main Issues ........................................................................................................... 6 

New Market Developments.......................................................................................... 6 

Fragmentation of Rules ................................................................................................ 6 

Lack of Confidence ...................................................................................................... 7 

Possible Options for the future..................................................................................... 7 

Option I: the vertical approach..................................................................................... 8 

Option II: the mixed approach (Horizontal instrument combined, where necessary, 
with vertical action)...................................................................................................... 8 

Option III: “no legislative action”................................................................................ 9 

Possible scope of a Horizontal Instrument................................................................... 9 

Degree of Harmonisation ........................................................................................... 10 

The consultation contained in Annex I ...................................................................... 11 

ANNEX I: ISSUES FOR CONSULTATION 

ANNEX II: CONSUMER DIRECTIVES UNDER REVIEW 

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1. 

INTRODUCTION 

With  this  Green  Paper  the  European  Commission  calls  on  all  interested  persons  to 
express their views on the issues identified in the context of the Review of Consumer 
Acquis  by  sending  in  their  replies  (marked  “Response  to  the  Green  Paper  on  the 
Review  of  Consumer  Acquis”)  by  no  later  than  May  15th,  2007  to  the  following 
address. 

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

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

Replies  and  observations  will  be  published  on  the  web  site  of  the  Health  and 
Consumer  Protection  Directorate-General  of  the  European  Commission  unless 
respondents  clearly  indicate  their  objections.  The  Commission  will  examine  the 
contributions and publish a summary thereof in the first half of 2007. On the basis of 
the outcome of the consultation, the Commission will decide whether there is a need 
for a legislative initiative. Any legislative proposal will be accompanied by an impact 
assessment. 

2. 

BACKGROUND 

2.1. 

Objective and status of the Review 

The  Commission  launched  the  Review  of  the  Consumer  Acquis  in  20041  with  the 
objective to better achieve its Better Regulation goals by simplifying and completing 
the  existing  regulatory  framework.  The  review  process  is  outlined  in  the  2004 
Communication on European Contract Law and the revision of the acquis: the way 
forward.2 

This  Review  covers  eight  directives  aiming  at  protecting  consumers3.  The 
overarching aim of the Review is to achieve a real consumer internal market striking 
the 
the  right  balance  between  a  high 
competitiveness  of  enterprises,  while  ensuring  the  strict  respect  of  the  principle  of 
subsidiarity.  At  the  end  of  the  exercise  it  should,  ideally,  be  possible  to  say  to  EU 
consumers  "wherever  you  are  in  the  EU  or  wherever  you  buy  from  it  makes  no 
difference: your essential rights are the same". This is in line with the approach taken 

level  of  consumer  protection  and 

1 
2 
3 

COM(2004) 651 final, OJ C 14, 20.1.2005, p.6. 
COM(2004) 651 final, OJ C 14, 20.1.2005, p.6. 
Listed in annex II. It is important to note that what is commonly referred to as the 'Consumer Acquis' 
does not cover all consumer protection legislation in the EU. The recently adopted Directive on Unfair 
Commercial  Practices  falls  outside  the  Consumer  Acquis  for  instance.  In  addition,  many  provisions 
aiming at protecting consumers can be found in sector-specific EU legislation, such as legislation in the 
field of e-commerce, financial services. 

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by the Commission in its Communication “A citizens’ agenda - Delivering results for 
Europe”.4  In  other  words,  consumers’  confidence  in  the  internal  market  must  be 
stimulated by ensuring a high level of protection across the EU. Consumers should 
be  able  to  rely  on  the  equivalent  rights  and  have  resort  to  equivalent  remedies  if 
something goes wrong. 

We must also make sure that businesses, not least SMEs, may benefit from a more 
predictable  regulatory  environment  and  simpler  EU  rules  in  order  to  decrease  their 
compliance costs and more generally to allow them to trade more easily across the 
EU, irrespective of where they are established. 

The Review of the Consumer Acquis can provide a unique opportunity to modernise 
the  existing  consumer  directives,  in  order  to  simplify  and  improve  the  regulatory 
environment  for  both  professionals  and  consumers  and  improve  or  extend  if 
necessary  the  protection  offered  to  consumers.  This  is  fully  in  line  with  the 
modernisation of the Internal Market. To this end, the directives are being reviewed 
as a whole and individually to identify regulatory gaps and shortcomings affecting all 
of  them  as  well  as  problems  specific  to  individual  directives.  As  envisaged  in  the 
First  Annual  Progress  Report5,  this  Green  Paper  concludes  the  diagnostic  phase  of 
the  review,  sums  up  the  Commission’s  initial  findings  and  calls  on  views  on  some 
options to review the consumer acquis. The Commission findings are the result of the 
following activities: 

– 

– 

– 

– 

A  comparative  analysis  on  how  the  Directives  are  applied  in  the  Member 
States, including case-law and administrative practice6. 

In  December  2005,  the  Commission  established  a  standing  working  group  of 
experts  from  the  Member  States.  Three  meetings  dedicated  to  the  review  of 
specific Directives were held in 2006. 

A  number  of  stakeholder  workshops  organized  in  the  context  of  the  work  on 
the Common Framework of Reference on contract law7 were held throughout 
the  first  semester  of  2006.  These  workshops  concentrated  on  contract  law 
issues directly relevant for the Review of the Consumer Acquis8. 

Analysis of consumer and business attitudes towards existing legislation in the 
area of consumer protection and its effects on cross-border trade9. 

4 
5 

6 

7 

8 

9 

of 

the 

EC 

Analysis 

Consumer 

Comparative 

the  Acquis  Review, 

COM(2006) 211 final. 
Commission’s  First  Annual  Report  on  European  Contract  Law  and 
COM (2005) 456 final. 
The 
http://ec.europa.eu/consumers/cons_int/safe_shop/acquis/index_en.htm 
See the Commission’s Communication on European Contract Law and the revision of the acquis: the 
way forward, COM (2004) 651 final, and the Commission’s First Annual Report on European Contract 
Law and the Acquis Review, COM (2005) 456 final. 
Discussed  topics  included:  consumer  sales  of  goods  (incl.  direct  producers’  liability),  unfair  contract 
terms,  pre-contractual  information  duties  in  consumer  contracts,  consumer  rights  of  withdrawal  and 
consumer’s  rights  to  damages.  See  the  Second  Annual  Progress  Report  on  Common  Framework  of 
Reference […], to be published in 2007 at the website of DG Health and Consumer Protection. 
Eurobarometer Consumer Protection in the Internal Market, survey conducted February to March 2006, 
published in September 2006. (http://ec.europa.eu/consumers/topics/eurobarometer_09-2006_en.pdf) 

available 

Law 

on 

is 

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In addition, the Commission evaluated how the various Directives under review have 
been transposed in the Member States. Implementation reports were published on the 
Unit  Pricing10  and  Distance  Selling  Directives11;  the  implementation  reports  on  the 
Directive on Sale of Goods and Guarantees (“Consumer Sales Directive”) as well as 
on the Injunctions Directive are to be published shortly. 

In  addition  to  the  work  conducted,  all  interested  parties  will  be  consulted  on  the 
specific  problems  which  were  identified  by  the  Commission  in  the  course  of  the 
review  of  the  Package  Travel  and  Doorstep  Selling  Directives.  These  will  be 
addressed  in  working  documents  to  be  published  on  the  website  of  the  Health  and 
Consumer  Protection  Directorate-General.  The  Commission  identified  a  number  of 
problems  related  to  long-term  tourism  products  which  require  a  quick  solution.  To 
this  end,  the  Commission  has  begun  work  on  a  proposal  for  a  revision  of  the 
timeshare directive.12 

2.2. 

Relationship between the Review and other Community legislation  

Given  the  breadth  of  the  ground  covered  by  the  consumer  acquis  and  the  overlaps 
with  other  internal  market  directives  the  impact  of  any  proposed  follow-up  to  the 
Green Paper on areas such as e-commerce or intellectual property rights will need to 
be assessed. In particular, the follow up to the Green Paper should not prejudice the 
operation of the internal market clause of the e-commerce Directive.  

The review will not affect Community rules on the conflict of laws. In this field, the 
Commission  has  presented  two  proposals  for  Regulations:  A  proposal  for  a 
Regulation  on  the  law  applicable  to  non-contractual  obligations  (Rome  II)  and  a 
proposal for a Regulation on the law applicable to contractual obligations (Rome I). 
This  latter  proposal  includes  a  provision  proposing  a  conflict  rule  on  consumer 
contracts consisting of applying only the law of the place of the consumer’s habitual 
residence under certain conditions.  

In  accordance  with  what  has  been  announced  in  the  White  Paper  on  financial 
services policy (2005-2010), the Commission is undertaking various initiatives in the 
financial services sector, in particular in the field of retail financial services. In the 
light of the results of the consultation the Commission will examine to what extent 
any  follow-up  legislative  action  will  apply  to  financial  services.  It  may  thus  be 
necessary to exclude the application of all or part of any legislative follow-up to the 
financial sector.  

This  Green  Paper  seeks  to  collect  views  from  all  interested  parties  on  the  possible 
policy  options  for  the  Review  of  the  Consumer  Acquis  as  well  as  on  a  number  of 
specific issues. 

10 
11 
12 

available on http://ec.europa.eu/consumers/cons_int/safe_shop/price_ind/index_en.htm 
available on http://ec.europa.eu/consumers/cons_int/safe_shop/dist_sell/index_en.htm 
See the Commission’s Consultation Document on the Timeshare Directive at 
http://ec.europa.eu/consumers/cons_int/safe_shop/timeshare/consultation_paper010606_en.doc 

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3. 

THE MAIN ISSUES 

3.1. 

New Market Developments 

Most  directives  that  are  part  of  the  Consumer  Acquis  are  prescriptive  rather  than 
principle-based.  Most  of  them  no  longer  meet  fully  the  requirements  of  today’s 
rapidly  evolving  markets.  This  is  particularly  important  in  the  face  of  the  growing 
importance of digital technology and digital services (e.g. music downloads), which 
raise controversial issues relating to user rights, as compared to the sale of physical 
goods. 

Technological  developments  are  creating  new  channels  for  transactions  between 
businesses  and  consumers,  which  are  not  covered  by  consumer  legislation.  On-line 
auctions are a good example of this phenomenon. The Distance Selling Directive, for 
instance, which was prepared before the recent expansion of e-commerce, allows the 
Member  States  to  exempt  auctions.  As  confirmed  by  the  evaluation  of  the  national 
laws,  the  different  usage  of  this  regulatory  option  by  the  Member  States  creates 
fragmentation and has led to a rise in consumer complaints in respect of these online 
auctions13. The exclusion of software and data from the scope of the Consumer Sales 
Directive  may  prompt  professionals  to  try  to  avoid  responsibility  for  possible 
damages/non conformity of such products through conditions in End User Licences 
Agreements  (EULA),  preventing  consumers  from  making  use  of  remedies  for  non-
conformity and invoking damages14. 

3.2. 

Fragmentation of Rules 

The  existing  EU  consumer  protection  rules  are  fragmented  basically  in  two  ways. 
Firstly, the current directives allow Member States to adopt more stringent rules in 
their  national  laws  (minimum  harmonisation)  and  many  Member  States  have  made 
use  of  this  possibility  in  order  to  ensure  a  higher  level  of  consumer  protection. 
Secondly, many issues are regulated inconsistently between directives or have been 
left  open.  During  the  preliminary  phase  of  the  Review,  business  and  consumer 
stakeholders  have  pointed  out  a  number  of  examples  of  regulatory  fragmentation 
which  create  problems.  These  are  illustrated  in  Annex  I.  The  differences  usually 
trigger  extra  compliance  costs  for  businesses,  including  costs  of  acquiring  relevant 
legal  advice,  changing  information  and  marketing  material  or  contracts,  or  in  the 
event of non-compliance, possibly litigation costs. This is often cited by enterprises 
as one reason among others for not conducting business cross-border. While 19 % of 
EU  retailers15  market  and  advertise  to  at  least  another  EU  country,  48 %  of  the 
companies are prepared to make cross-border sales. As many as 55 % of retailers that 
express  interest  in  cross-border  sales  consider  extra  costs  of  compliance  with 
different national laws regulating consumer transaction to be very important or fairly 

13 

14 

15 

the 

See  the  Communication  from  the  Commission  on  the  implementation  of  Directive  1997/7EC  on 
Distance Selling. 
For more information on the problems encountered by consumers in respect of the EULA see the report 
by 
on 
http://www.vzbv.de/mediapics/anlage_pm_digitale_medien_06_2006_copy.pdf. 
Flash  Eurobarometer  186  on  Business  attitudes  towards  cross-border  trade  and  consumer  protection, 
conducted in October 2006. The survey will be published in its totality on the DG Health and Consumer 
Protection web page. 

Consumer  Organisations 

of  German 

Federation 

available 

(vzbv) 

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important. 43 % of all EU retailers think harmonisation of consumer protection laws 
should  have  a  positive  effect  on  their  cross-border  sales  and  their  cross-border 
marketing budget.  

There are even cases where professionals refuse to sell to customers in other Member 
States:  a  recent  Eurobarometer16  shows  that  33 %  of  consumers  report  that 
businesses refused to sell or deliver goods or services because the consumer was not 
resident in their country. 

3.3. 

Lack of Confidence 

According  to  the  above-mentioned  Eurobarometer  survey,  26 %  of  EU  consumers 
purchased  goods  and  services  from  businesses  established  in  other  EU  Member 
States17. While distance selling is a growing phenomenon only 6 % made purchases 
by Internet from a supplier in another Member State18. One reason to this is that as 
many  as  45 %  of  the  consumers  feel  less  confident  in  making  purchases  on  the 
Internet from businesses located abroad (in one Member State this figure amounted 
to 73 %). This is further demonstrated by the fact that 44% of those who had internet 
access  at  home  made  a  domestic  e-commerce  purchase  whereas  only  12%  made  a 
cross-border e-commerce purchase. In general terms, 56 % of consumers were of the 
opinion that, when purchasing goods and services from businesses in other Member 
States, businesses are less likely to respect consumer protection laws. 71 % believed 
it  is  harder  to  resolve  problems  such  as  complaints,  returns,  price  reductions, 
guarantees  etc.  when  purchasing  from  businesses  in  other  Member  States. 
65 % considered  it  to  be  more  problematic  returning  a  product  bought  by  distance 
selling within the cooling-off period when purchasing from a supplier in a different 
Member State.  

Different rules resulting from minimum harmonisation may have a negative impact 
on  the  internal  market.  One  reason  for  consumers  being  reluctant  to  make  cross-
border  purchases  is  that  consumers  cannot  be  sure  that  the  level  of  protection  that 
they enjoy at home will apply when they buy cross-border. For example, the length 
of  the  cooling-off  period  for  cross-border  distance  selling  varies  between  the 
Member  States,  creating  uncertainties  for  consumers.  The  same  applies  to  the 
modalities of exercising the right of withdrawal and the cost of returning goods. 

4. 

POSSIBLE OPTIONS FOR THE FUTURE 

In  the  First  Annual  Progress  Report  on  European  Contract  Law  and  the  Review  of 
the Acquis of 200519, the Commission identified two main strategies for the revision 
of the consumer acquis: a vertical approach consisting of the individual revision of 
the existing directives, or a more horizontal approach consisting of the adoption of 

16 

17 

18 

19 

The survey was conducted from February to March 2006. The survey is published in its totality at the 
DG Health and Consumer Protection web page. 
This  figure  refers  to  cross-border  purchases  during  the  period  February/  March  2005  to  February/ 
March 2006. 
The number of  consumers  purchasing from  other  Member States  by  Internet  varies from  only  1 %  in 
Greece, Hungary and Slovakia, up to 28 % in Luxemburg followed by Denmark with 19 %. 
COM (2005) 456 final. 

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one  or  more  framework  instruments  to  regulate  common  features  of  the  acquis, 
underpinned whenever necessary by sectoral rules.  

When  translating  the  review  into  concrete  policy  proposals,  the  Commission  will 
examine carefully the impact of such proposals, including the impact on business.  

4.1. 

Option I: the vertical approach 

Under the vertical approach, the existing directives could be amended separately in 
order to adapt them to market and technological developments. The gaps specific to 
the individual directives could be filled in and particularities to these directives could 
be  addressed.  The  inconsistencies  between  the  different  directives  could  be 
eliminated.  It  could,  however,  take  much  longer  and  not  be  able  to  achieve  the 
simplifying  effect  of  the  horizontal  approach.  The  EU  would  have  to  address  the 
same  issues  in  the  course  of  the  different  legislative  procedures.  The  Commission 
would  also  have  to  make  sure  that  the  same  issue  is  transposed  consistently  by  the 
Member States for each of the directives. The volume of legislative acts would not 
diminish  and  the  same  common  concepts  would  continue  to  be  contained  and 
regulated  in  the  various  directives.  However,  it  would  allow  for  respect  of  the 
specificity of each area by improving the existing legislation and reviewing it when 
necessary. 

4.2. 

Option II: the mixed approach (Horizontal instrument combined, where necessary, 
with vertical action) 

Consumer  protection  legislation  until  the  adoption  of  the  Unfair  Commercial 
Practices  Directive  (“UCP”)20  in  2005  has  mostly  been  based  on  the  vertical 
approach,  intended  to  provide  specific  solutions  to  particular  problems.  This 
approach,  however,  has  given  rise  to  a  fragmented  regulatory  environment.  The 
relation  between  the  different  instruments  is  sometimes  unclear  as  the  legal 
terminology,  as  well  as  the  relevant  provisions,  is  not  sufficiently  coordinated.  For 
instance, if timeshare is sold by a door-to-door salesman, it is unclear which of the 
different  information  and  withdrawal  provisions  of  the  Doorstep  Selling  and 
Timeshare Directives apply21. 

A more integrated, “horizontal” approach has begun with UCP. 

There are a number of issues which are common to all directives forming part of the 
Consumer  acquis.  Definitions  of  basic  notions  such  as  consumer  and  professional, 
the  length  of  cooling-off  periods  and  the  modalities  for  the  exercise  of  the  right  of 
withdrawal  are  examples  of  issues  that  are  of  relevance  in  the  context  of  several 
directives. These common issues could be extracted from the existing directives and 
regulated  in  a  systematic  fashion  in  a  horizontal  instrument.  Together  with  the 
provisions  of  the Unfair Terms Directive, given its horizontal character, they could 
form  the  general  part  of  the  instrument  since  they  would  apply  to  all  consumer 
contracts.  A  second  part  of  the  horizontal instrument  could  regulate  the  contract  of 
sale,  which  is  the  most  common  and  broad  consumer  contract.  For  this  reason,  the 
Consumer  Sales  Directive  would  be  included  in  the  horizontal  instrument.  This 

20 
21 

Directive 2005/29/EC. 
This situation is addressed in the ECJ case Travel Vac, Case C-423/97. 

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approach would simplify and rationalise the consumer acquis in line with the Better 
Regulation  principles22.  It  would  repeal,  through  a  recasting  exercise,  the  existing 
consumer directives fully or in part, and so reduce the volume of the acquis. 

The  horizontal  instrument  will  have  to  be  complemented  by  a  certain  number  of 
vertical actions (e.g. revision of timeshare directive to address its specific problems, 
such as the definition of timeshare) whenever needed (“mixed approach”). 

4.3. 

Option III: “no legislative action” 

Both  the  horizontal  and  the  vertical  approaches  require  legislative  action.  No 
legislative action would mean that existing regulatory fragmentation would remain or 
could  increase  through  Member  States’  use  of  minimum  harmonisation  clauses. 
Inconsistencies between different directives would continue to exist. 

4.4. 

Possible scope of a Horizontal Instrument 

If  Option  II  is  followed,  an  important  issue  to  consider  will  be  the  scope  of  the 
horizontal  instrument.  Under  the  mixed  approach,  a  possible  solution  would  be  to 
adopt  a  framework  instrument  with  a  broad  coverage,  applicable  to  both  domestic 
and  cross-border  transactions.  Creating  one  instrument  for  all  consumer  contracts 
would  simplify  the  regulatory  environment  significantly,  both  for  consumers  and 
businesses.  However,  where  sector  specific  rules  exist  (such  as,  for  instance,  in 
financial  services  and  insurance)  they  will  continue  to  prevail,  unless  provided 
otherwise.  Examples  of  these  rules  are  the  provisions  regulating  the  cancellation 
period and the definition of consumer in the financial services area23.  

An alternative could be to introduce a horizontal instrument applying exclusively to 
cross-border  contracts.  The  notion  of  cross-border  contract  would  then  have  to  be 
defined (e.g. all distance contracts concluded by a consumer and a professional from 
two  different  Member  States).  As  a  result,  consumers  dealing  with  a  foreign 
professional would benefit from a uniform protection across the EU. This alternative 
could,  on  the  one  hand,  increase  consumer  confidence  in  cross-border  trade  but  on 
the  other  hand  it  could  increase  legal  fragmentation,  subjecting  consumers  and 
professionals to different sets of rules depending on whether the transaction is cross-
border or domestic. It would also reduce the better regulation value of the horizontal 
instrument. 

Another  alternative  could  be  a  horizontal  instrument  limited  to  distance  shopping 
whether  cross-border  or  domestic,  which  would  replace  the  Distance  Selling 
Directive. This could create a set of uniform rules for distance contracts. Again, the 
main  disadvantage  would  be  that  different  conditions  would  apply  to  distance  and 
face-to-face transactions, thereby increasing the legal fragmentation, and decreasing 
its better regulation value. 

22 

23 

The  review  of  the  consumer  acquis  is  listed  in  the  Rolling  Simplification  Programme  attached  to  the 
Commission’s Communication on simplification of 25 October 2005. COM (2005) 535 – implementing 
the Community Lisbon programme – A strategy for the simplification of the regulatory environment.  
E.g.  Article  35  and  Annex  III  of  the  Recast  Life  Assurance  Directive  2002/83/EC;  Article  31  of  the 
Third Non-life Insurance Directive 92/49/EEC.  

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4.5. 

Degree of Harmonisation 

Independently of the option chosen to revise the acquis, the degree of harmonisation 
would also need to be decided. 

The  current  consumer  protection  directives,  which  are  under  review,  are  based  on 
minimum  harmonisation,  i.e.  they  contain  clauses  under  which  Member  States  are 
allowed  to  have  higher  protection  levels  than  those  provided  for  by  the  directives. 
Many Member States have made use of this possibility, e.g. by providing for longer 
cooling-off  periods  than  the  minimum  periods  laid  down  in  the  Directives  on 
Distance Selling, Doorstep Selling and Timeshare. 

Consequently consumers cannot be sure that the level of protection they are used to 
in  their  home  country  will  apply  when  they  shop  cross-border,  whereas  businesses 
may be deterred from marketing their products or services across the EU by the fact 
that they have to comply with different rules in each Member State. 

To remedy this problem, one option would be to revise the Consumer Acquis with a 
view to achieving full harmonisation. This would mean that no Member State could 
apply stricter rules than the ones laid down at Community level. Full harmonisation 
would not only entail the repeal of the minimum harmonisation clauses; it would also 
imply  the  elimination  of  the  regulatory  options  available  to  Member  States  on 
specific aspects by some provisions in the directives, which could result in modifying 
the level of consumer protection in some Member States.  

For instance, when regulating the time limits of the legal guarantee imposed on the 
seller, Article 5 of the Directive on Sale of Consumer Goods allows Member States 
to provide that, in order to benefit from their rights, consumers must inform the seller 
of the lack of conformity within a period of two months from the date of detection. 
Such  options  for  Member  States  would  disappear.  The  transposition  checks  have 
confirmed  that  a  significant  number  of  Member  States  have  made  use  of  such 
regulatory  options.  On  the  basis  of  the  full  harmonisation  approach,  a  choice  will 
have  to  be  made  between  different  solutions,  for  instance  by  eliminating  or 
generalising the duty to notify the seller of the lack of conformity within a specified 
time period.  

Nevertheless,  given  that  it  may  be  difficult  to  achieve  full  harmonisation  on  all 
aspects,  and  in  order  to  avoid  the  re-creation  of  barriers  to  the  internal  market,  a 
harmonisation approach might on a case-by-case basis be complemented by a clause 
providing  for  mutual  recognition  for  certain  aspects  covered  by  the  proposed 
legislation but not fully harmonised. 

Another option could therefore be the combination of minimum harmonisation with a 
mutual recognition clause. In this case, Member States would retain the possibility to 
introduce stricter consumer protection rules in their national laws, but they would not 
be  entitled  to  impose  their  own  stricter  requirements  on  businesses  established  in 
other Member States in a way which would create unjustified restrictions to the free 
movement of goods or to the freedom to provide services.  

Finally, another option would be minimum harmonisation eventually combined with 
the country of origin approach. This combination would mean that a Member State 

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would  retain  the  possibility  to  introduce  stricter  consumer  protection  rules  in  its 
national law, but businesses established in other Member States would only have to 
comply with the rules applicable in their home country.  

these  options  would  not  simplify  and  rationalise 

the  regulatory 
However, 
environment.  Regulatory  fragmentation  would  continue  to  exist  and  its  negative 
effects on consumers' confidence in the internal market would not be removed. In the 
absence  of  a  rule  designating  the  law  of  the  trader  as  the  applicable  law,  the  judge 
having jurisdiction over a crossborder lawsuit (i.e. normally the judge of the country 
of destination) would have to compare systematically the law of the country of the 
consumer  with  that  of  the  country  of  origin.  He  would  then  have  then  to  assess  to 
what  extent  the  country  of  destination  law  goes  beyond  the  level  of  protection 
provided in the law of the country of the trader and, if the divergence constitutes an 
unjustified  restriction,  disapply 
the  stricter  requirements.  This  cumbersome 
procedure would not enhance legal certainty.  

These two options would also not provide for a solution ensuring the high common 
level of consumer protection required by the Treaty. 

4.6. 

The consultation contained in Annex I 

Annex I contains the list of issues and questions put to consultation. The majority of 
questions relate to the cross-cutting or horizontal issues which could be dealt with in 
the  context  of  the  mixed  approach.  The  vertical  approach,  which  concerns  the 
specific  directives,  does  not  require  an  extended  list  of  issues  or  questions;  these 
have  been  dealt  with  in  the  context  of  the  different  consultations  organised  by  the 
Commission, as described in point 2.1. of the Green Paper. 

A number of cross-cutting issues have emerged from the review. These issues reflect 
regulatory  shortcomings  and  consumer  protection  lacunae  in  the  acquis.  In  most  of 
the  cases,  which  have  been  brought  to  the  Commission’s  attention  by  various 
consumer  and  business  stakeholders,  the  issues  arise  from  the  use  of  the  minimum 
clauses and regulatory options by the Member States. 

The issues are grouped in two categories; those which are common to the whole of 
the  acquis  (e.g.  definition  of  consumer)  or  to  more  than  one  directive  (e.g.  right  of 
withdrawal), and those which are specific to the contract of sale, which is by far the 
predominant consumer contract. 

As to the first group, the Commission feels that a consistent definition of the notions 
of consumer and professional is important since it permits to delimit the scope of the 
acquis more accurately. 

A more far reaching option is the possible introduction of a general principle of good 
faith  and  fair  dealing  in  contractual  transactions.  The  inclusion  of  such  a  principle, 
which would act as a safety net, would fill in any future regulatory gap and ensure 
that the acquis remains future proof. 

A number of issues refer to the Unfair Contract Terms Directive, which is the only 
directive  applying  to  all  types  of  consumer  contracts,  covering  both  goods  and 
services. The practical importance of these issues is demonstrated by the noticeable 

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proportion  of  complaints  received  by  the  European  Consumer  Centres  concerning 
contract terms24. In this context, the Commission wishes, amongst others, to raise the 
question whether the protection afforded by the directive should be extended to cover 
individually negotiated terms. 

Issues  such  as  the  right  of  withdrawal,  which  is  a  typical  remedy  afforded  to  the 
consumer by several directives, and the conditions for its exercise are also addressed. 

The  introduction  of  general  contractual  remedies,  including  a  generalised  right  to 
damages  is  also  touched  on.  The  absence  of  general  remedies  in  the  acquis  may 
create a consumer protection deficit, which could be addressed in this context. 

As regards the sale of goods, some important questions refer to the clarification and 
possible extension of the scope in order to include intangible goods, such as software 
and data. Some other questions cover key concepts such as delivery, the passing of 
risk  and  the  hierarchy  of  remedies.  Finally,  the  possible  introduction  of  the 
producer’s direct liability, and the content of commercial guarantees are also raised. 

Annex I describes each of the following issues: 

1 

2 

3 

4.1 

4.2 

4.3 

General legislative approach 

Scope of a Horizontal Instrument 

Degree of harmonisation 

Definition of “consumer” and “professional” 

Consumers acting through an intermediary 

Introduction of a general clause of good faith and fair dealing  

4.4.1 

Extension of the scope of the unfairness test to negotiated terms 

4.5 

4.6 

4.7 

4.8.1 

4.8.2 

4.8.3 

4.9 

4.10 

5.1 

5.2 

5.3 

5.4 

5.5.2 

5.5.3 

The legal effects of the list of unfair terms 

Scope of the unfairness test: price and subject matter of the contract  

Providing for contractual effects of the failure to provide information  

Harmonisation of the length of the cooling off periods 

Harmonisation of the modalities of exercising the right of withdrawal 

Harmonisation of cost imposed on consumers in the event of withdrawal.  

Introduction of the general contractual remedies 

Introduction of the right to damages 

Extension of the scope of application to other types of contracts  

Second-hand goods sold at public auctions 

Definition of delivery 

Passing of risk 

Time limits for lack of conformity 

Specific rule on recurring defects 

24 

European Consumer Centres report that 10 % of complaints made in 2005 concerned unfair terms. 

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5.5.4 

Specific rule on second-hand goods 

5.6 

5.7 

5.8 

5.9 

Burden of proof 

Modification of the order in which remedies may be invoked 

Notification of the lack of conformity 

Direct producers’ liability for non-conformity 

5.10.1 

Introduction of default rules on the content of the commercial guarantee 

5.10.2 

The transferability of the commercial guarantee 

5.10.3  Commercial guarantees for specific parts  

6 

Other issues 

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ANNEX I 

ISSUES FOR CONSULTATION 

When answering the questions below, contributors are encouraged to motivate their 
answers.  It  should  be  noted  that  all  options  indicated  are  non-exhaustive;  other 
solutions may also be put forward. 

1. 

General Legislative Approach 

As indicated in section 4 above, there are different alternatives available to reviewing 
the consumer legislation. 

Question  A1:  In  your  opinion,  which  is  the  best  approach  to  the  review  of  the 
consumer legislation? 

Option 1: A vertical approach consisting of the revision of the individual directives. 

Option  2:  A  mixed  approach  combining  the  adoption  of  a  framework  instrument 
addressing  horizontal  issues  that  are  of  relevance  for  all  consumer  contracts  with 
revisions of existing sectoral directives whenever necessary.  

Option 3: Status quo: no revision.  

2. 

Scope of a Horizontal Instrument 

Section 4.4 above highlights different options as to the scope of a possible horizontal 
instrument.  One  option  would  be  to  adopt  a  framework  instrument  with  broad 
coverage,  applicable  to  both  domestic  and  cross-border  transactions.  Alternatively, 
the horizontal instrument could cover cross-border contracts only. A third alternative 
would  be  to  limit  the  scope  of  application  of  the  instrument  to  distance  contracts 
concluded cross-border and domestically.  

Question A2: What should be the scope of a possible horizontal instrument? 

Option 1: It would apply to all consumer contracts whether they concern domestic or 
cross-border transactions. 

Option 2: It would apply to cross-border contracts only. 

Option 3: It would apply to distance contracts only whether they are concluded cross-
border or domestically. 

3. 

Degree of Harmonisation 

Section  4.5  above  discusses  the  degree  of  harmonisation  that  future  consumer 
protection legislation should be based on. Current legislation allows Member States 
to  adopt  more  stringent  national  rules  through  the  use  of  minimum  clauses.  The 
resulting  fragmentation  of  rules  may  create  internal  market  barriers  and  deter 
consumers from shopping cross-border. Full harmonisation could represent an option 
for  addressing  this  problem.  A  second  option  would  be  to  keep  the  minimum 

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harmonisation  approach.  Minimum  harmonisation,  as  indicated  above,  could  be 
combined  with  a  mutual  recognition  clause  or  with  the  country  of  origin  principle. 
However, this option would not simplify and rationalise the regulatory environment. 
Regulatory  fragmentation  would  continue  to  exist  and  its  negative  effects  on 
consumers' confidence in the internal market would not be removed.  

Question  A3:  What  should  be  the  level  of  harmonisation  of  the  revised 
directives/the new instrument? 

Option  1:  The  revised 
complemented on issues not fully harmonised with a mutual recognition clause. 

legislation  would  be  based  on  full  harmonisation 

Option  2:  The  revised  legislation  would  be  based  on  minimum  harmonisation 
combined with a mutual recognition clause or with the country of origin principle. 

4. 

Horizontal Issues 

4.1 

Definition of "consumer" and "professional" 

Currently  the  directives  do  not  have  coherent  definitions  of  the  concepts  of 
“consumer”  and  “professional”,  although  these  are  fundamental  concepts  for  the 
application of the consumer acquis. There is no serious justification in terms of the 
specific purposes of the relevant directives. The uncertainty this causes is aggravated 
by  the  fact  that  the  Member  States  use  the  minimum  clause  to  extend  the  vague 
definitions  in  different  ways.  Several  stakeholders  advocate  strongly  in  favour  of 
consistent  definitions  of  consumer  and  professional  to  avoid  confusion.  In  this 
respect it is also important to ensure coherence with definitions used in other areas of 
Community legislation.  

For instance, the Directive on Doorstep Selling defines consumer as a natural person 
who  is  acting  for  purposes  “which  can  be  regarded  as  outside  his  trade  or 
profession”.  The  Directive  on  Price  Indications  refers  to  any  natural  person  “who 
buys a product for purposes that do not fall within the sphere of his commercial or 
professional  activity”  and  the  Unfair  Contract  Terms  Directive  refers  to  “purposes 
which are outside his trade, business or profession”. 

Differences  between  Member  States  can  be  noted  for  example  when  it  comes  to 
individuals buying a product to be used both privately and professionally, e.g. when 
a  doctor  buys  a  car  and  occasionally  uses  it  to  visit  his  patients.  Several  Member 
States have granted natural persons acting for purposes which fall primarily outside 
their  trade,  business  or  profession  the  same  protection  as  consumers.  In  addition 
some  businesses,  such  as  individual  entrepreneurs  or  small  businesses  may 
sometimes  be  in  a  similar  situation  as  consumers  when  they  buy  certain  goods  or 
services  which  raises  the  questions  whether  they  should  benefit  to  a  certain  extent 
from the same protection provided for to consumers. During the review the widening 
of the definitions to cover transactions for mixed purposes should be considered. 

Similarly the professional is referred to variously as “trader”, “seller”, “supplier” etc, 
depending  on  the  directive.  The  definitions  vary  as  well:  The  Distance  Selling 
Directive, for instance, defines the “supplier” as “any natural or legal person who … 
is  acting  in  his  commercial  or  professional  capacity”,  whereas  the  Unfair  Contract 

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Terms Directive refers to a “seller or supplier” as a natural or legal person who “is 
acting for purposes relating to his trade, business or profession, whether publicly or 
privately  owned”.  To  overcome 
the  notion  of 
“professional” could replace the variety of terms in the existing Directives and apply 
to all persons who are not deemed to be consumers. 

inconsistencies 

the  current 

Question  B1:  How  should  the  notions  of  consumer  and  professional  be 
defined? 

Option  1:  An  alignment  would  be  made  of  the  existing  definitions  in  the  acquis, 
without  changing  their  scope.  Consumers  would  be  defined  as  natural  persons 
acting  for  purposes  which  are  outside  their  trade,  business  or  professions. 
Professionals  would  be  defined  as  persons  (legal  or  natural)  acting  for  purposes 
relating to their trade, business and profession. 

Option 2: The notions of consumer and professional would be widened to include 
natural  persons  acting  for  purposes  falling  primarily  outside  (consumer)  or 
primarily within (professional) their trade, business and profession. 

4.2 

Consumers acting through an intermediary  

A  consumer  is  not  protected  by  the  acquis  when  his/her  contractual  counterpart  is 
another private person. The same goes for the case when an individual is represented 
by a commercial agent, broker or any other intermediary. A practical example of this 
is  when  a  car  dealer  sells  a  second-hand  car  on  behalf  of  one  consumer  to  another 
consumer. It has been argued that in these cases consumers need similar protection as 
in an ordinary business-to-consumer contract since the other party will benefit from 
the professional expertise of the intermediary and some Member States have chosen 
to extend consumer protection to these situations. 

However, it may be very difficult to establish clear criteria as to when the role of the 
intermediary is so strong as to warrant consumer protection. There may be a risk of 
unforeseen and negative knock-on effects on markets on which private persons trade 
with private persons.  

Against applying consumer protection rules to private sellers it could also be argued 
that  a  private  person  might  not  realise  that  contracting  a  professional  as  her  or  his 
intermediary  will  put  her  or  him  in  a  position  equivalent  to  a  professional.  On  the 
other  hand,  a  consumer  who  concludes  a  contract  with  a  professional  acting  as 
intermediary  for  a  private  person  may  be  more  in  need  of  protection  than  his 
contractual counterpart. 

It  should  be  noted  that  the  notion  of  intermediary  would  not  include  trading 
platforms for sellers and consumers, e.g. on the Internet, where the platform provider 
is  not  involved  in  the  conclusion  of  the  contract.  The  role  of  intermediaries  in 
electronic  commerce,  including  search  engines  and  auction  platforms,  is  currently 
being examined in a different context and therefore not covered by this review25. 

25 

Conclusions will be announced in the Second Report on the application of the Directive 2000/31, to be 
adopted in 2008. 

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Question  B2:  Should  contracts  between  private  persons  be  considered  as 
consumer  contracts  when  one  of  the  parties  acts  through  a  professional 
intermediary? 

Option  1:  Status  quo:  consumer  protection  would  not  apply  to  consumer-to-
consumer contracts where  one party makes use  of a professional intermediary for 
the conclusion of the contract. 

Option  2:  The  notion  of  consumer  contracts  would  include  situations  where  one 
party acts through a professional intermediary. 

4.3 

The concepts of good faith and fair dealing in the Consumer Acquis  

The consumer acquis on contract law does not include a general duty to deal fairly or 
to act in good faith. A general clause referring to the concept of (un-)fairness exists 
in Article 5 of Directive on Unfair Commercial Practices, which concerns marketing 
practices,  but  which  does  not  apply  to  contracts26.  Article  3 (1)  of  Directive 
93/13/EEC  on  Unfair  Terms  in  Consumer  Contracts  constitutes  a  general  clause 
referring to “(un-) fairness” and contains a definition of that term for the purposes of 
the Directive. 

The main advantage of an overarching general clause for consumer contracts in the 
horizontal instrument would be the creation of a tool which would provide guidance 
for the interpretation of more specific provisions and would allow  the courts to fill 
gaps in the legislation by developing complementary rights and obligations. It could 
therefore  provide  a  safety  net  for  consumers  and  create  certainty  for  producers  by 
filling gaps in legislation. In addition, a general provision may also be a useful tool 
when interpreting clauses contained in offers or contracts and it may as well respond 
to  the  criticism  that  certain  directives  or  provisions  are  not  time-proof.  A  general 
provision could be built round the phrase “good faith and fair dealing”. This includes 
the idea that they show due regard to the interests of the other party, considering the 
specific situation of certain consumers. 

The disadvantage of such a general clause is that it does not encompass precisely the 
rights  and  obligations  imposed  on  each  party.  Its  interpretation  may  vary  from 
Member State to Member State. 

If included, such a general principle should apply from the negotiation phase to the 
execution of the contract, including remedies. It would also prevent the emergence of 
the  kind  of  problems  encountered  with  the  current  consumer  protection  directives, 
due to legislation being overtaken by technological and market developments. 

Question  C:  Should  a  horizontal  instrument  include  an  overarching  duty  for 
professionals  to  act  in  accordance  with  the  principles  of  good  faith  and  fair 
dealing?  

26 

Article 5 of the Directive on Unfair Commercial Practices outlaws marketing practices which - contrary 
to  the  requirement  of  professional  diligence  –  can  adversely  affect  the  economic  behaviour  of 
consumers.  

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Option  1:  The  horizontal  instrument  would  provide  that  under  EU  consumer 
contract law professionals are expected to act in good faith.  

Option 2: The status quo would be maintained: There would be no general clause.  

Option  3:  A  general  clause  would  be  added  which  would  apply  both  to 
professionals and consumers.  

4.4 

The scope of application of the EU rules on unfair terms  

4.4.1  Extension of the scope to individually negotiated terms 

The  Directive  on  unfair  contract  terms  currently  applies  to  non-negotiated  terms 
only, i.e. contractual clauses which the consumer has had no possibility to influence 
during the negotiation process. In practice, the Directive is in most cases applicable 
to  pre-formulated  contract  terms  used  in  mass  transactions.  In  reality  consumers 
often have only a very limited possibility to influence the content of a clause even if 
it  theoretically  is  open  to  negotiations.  A  number  of  Member  States  have  specific 
rules on the (un-)fairness of individually negotiated terms. 

If it is decided to include individually negotiated terms, the test of unfairness could 
be  reformulated  so  that  it  ensures  that  the  competent  authorities  will  take  into 
account  the  actual  ability  of  individual  consumers  to  influence  the  terms  of  the 
contract. Alternatively, this test could be restricted to the list of terms annexed to the 
directive. 

In the absence of specific rules, the unfairness of negotiated terms would be assessed 
under the principle of good faith (see 4.3). 

Question  D1:  To  what  extent  should  the  discipline  of  unfair  contract  terms 
also cover individually negotiated terms?  

Option  1:  The  scope  of  application  of  the  Directive  on  Unfair  Terms  would  be 
expanded to individually negotiated terms.  

Option 2: Only the list of terms annexed to the Directive would be made applicable 
to individually negotiated terms.  

Option  3:  Status  quo  –  Community  rules  would  continue  to  apply  exclusively  to 
non-negotiated or pre-formulated terms.  

4.5 

List of unfair terms 

The rationale behind the list attached to the current Directive on unfair contract terms 
is  to  provide  guidance  to  the  Member  States  as  to  what  contractual  terms  can  be 
challenged under the unfairness test. As the list has a purely indicative character, it 
may lead to divergent application in Member States. 

It  should  be  considered  whether  a  term  included  in  a  list  of  unfair  terms  of  a 
horizontal instrument should be considered unfair in all circumstances (black list) or 
unfair unless the examination of the specific circumstances of the contract (including 

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any  individual  negotiation)  shows  the  contrary  (i.e.  a  rebuttable  presumption  of 
unfairness  –  grey  list).  These  two  options  could  also  be  combined,  i.e.  some  terms 
would be considered unfair in all circumstances while other terms are presumed to be 
unfair. That option has been considered by the CFR researchers. 

A comitology mechanism could be included in the horizontal instrument in order to 
update the list of terms. 

Question D2: What should be the status of any list of unfair contract terms to 
be included in a horizontal instrument?  

Option 1: Status quo: To maintain the current indicative list. 

Option  2: A rebuttable presumption of unfairness (grey list) would be established 
for some contractual terms. This option would combine guidance with flexibility as 
to the assessment of fairness.  

Option 3: A list of terms – presumably much shorter than the existing list – which 
are considered to be unfair in all circumstances (black list) would be established.  

Option  4:  A  combination  of  options  2  and  3:  some  terms  would  be  banned 
completely, while a rebuttable presumption of unfairness would apply to the others. 

4.6 

Scope of the unfairness test 

Under the Directive on Unfair Terms a non-negotiated contractual term is considered 
unfair if, contrary to the requirement of good faith, it causes a significant imbalance 
in  the  parties’  rights  and  obligations  arising  under  the  contract,  i.e.  the  unfairness 
test.  According  to  this  test,  the  assessment  of  the  unfair  nature  of  the  terms  relates 
neither to the definition of the main subject matter of the contract nor to the adequacy 
of the price (as far these terms are expressed in plain intelligible language). 

National laws typically allow the aggrieved party to avoid the contract only where he 
or she has had little choice as to whether to conclude the contract and the situation 
has  been  exploited  by  the  contractual  counterpart  through  charging  an  exorbitant 
price. An example of this would be where a consumer whose car breaks down in the 
middle  of  a  rural  area  at  night  may  agree  to  pay  a  disproportionate  price  for  the 
repair. 

Especially if the scope of the directive were to be extended to negotiated terms, the 
question arises as to whether the unfairness test should be widened to assess all core 
terms  of  a  contract,  including  the  main  subject  matter  of  the  contract  and  the 
adequacy of the price. 

Question D3: Should the scope of the unfairness test of the directive on unfair 
terms be extended? 

Option 1: The unfairness test would be extended to cover the definition of the main 
subject matter of the contract and the adequacy of the price 

Option 2: Status quo - the test of unfairness would be kept in its present form. 

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4.7 

Information requirements  

Several  Directives  impose  obligations  on  professionals  to  provide  consumers  with 
information before, at or after the conclusion of the contract. Failure to comply with 
these  obligations  is  however  regulated  in  an  incomplete  and  inconsistent  way.  In 
several  cases  no  remedies  are  available  when  information  duties  are  ignored  by 
professionals.  Even  an  extension  of  the  cooling-off  periods  for  failure  to  provide 
information, as it is provided for in the Distance Selling and Timeshare Directives, 
may  not  be  sufficient  since  the  consumer  loses  his  right  to  withdraw  from  the 
contract within three months. Consumer organisations quote the lack of information 
as  one  of  the  main  problems  in  relation  to  distance  selling,  whereas  business 
stakeholders deplore the complexity of the current situation. 

The Commission is of the opinion that although the horizontal instrument should not 
cover the existence and the content of the information requirements, considering the 
varying purposes of consumer information in the different vertical directives, it could 
encompass  provisions  on  the  failure  to  fulfil  information  requirements.  One 
possibility  is  that  the  horizontal  instrument  would  provide  for  an  extension  of  the 
cooling-off  period  for  failure  to  comply  with  information  requirements.  Another 
solution  would  be  to  combine  such  an  extension  of  the  cooling–off  period  with 
general  remedies  for  the  most  serious  breaches  of  information  duties  (e.g.  no 
information on price and address of the professional). 

Question E: What contractual effects should be given to the failure to comply 
with information requirements in the consumer acquis?  

Option 1: The cooling-off period, as a uniform remedy for failure to comply with 
information requirements, would be extended, e.g. up to three months.  

Option  2:  There  would  be  different  remedies  for  breaching  different  groups  of 
information obligations: some breaches at the pre-contractual and contractual level 
would  give  rise  to  remedies  (e.g.  incorrect  information  on  the  price  of  a  product 
could  entitle  the  consumer  to  avoid  the  contract),  whilst  other  failures  to  inform 
would be treated differently (e.g. through an extension of the cooling-off period or 
with no contractual sanction at all).  

Option  3:  Status  quo:  The  contractual  effects  of  failure  to  provide  information 
would continue to be regulated differently for different types of contract. 

4.8 

Right of withdrawal  

4.8.1  The cooling-off periods 

The Directives on Timeshare, Doorstep Selling and Distance Selling give consumers 
the right to withdraw from the contract within a certain period. There are significant 
divergences  in  relation  to  the  length  of  these  periods,  and  as  to  the  beginning  and 
calculation  of  the  periods  (in  calendar  or  working  days).  Such  differences  may  be 

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confusing for consumers and can create legal uncertainty in case of overlaps between 
Directives27. 

The horizontal instrument could provide for common rules on the time frames for all 
types  of  contracts  for  which  a  right  of  withdrawal  exists,  so  as  to  increase  legal 
certainty. 

An alternative could be to group the directives into two categories, attaching to each 
of  them  a  specific  withdrawal  period.  The  reason  for  this  would  be  that  different 
directives grant consumers a right to withdrawal for different reasons, e.g. to allow 
consumers  to  compare  the  price  and  quality  of  the  products  ordered  in  a  door  step 
situation with alternative offers or to allow consumers to see the product ordered at a 
distance. 

Whichever of the two alternatives is chosen, the Commission is of the view that all 
periods  should  be  uniformly  counted  in  calendar  days  rather  than  working  days  to 
increase legal certainty. The concept of working days is differently interpreted by the 
Member States and varying national holidays may cause uncertainties for consumers 
and businesses.  

Question  F1:  Should  the  length  of  the  cooling-off  periods  be  harmonised 
across the consumer acquis? 

Option 1: There would be one cooling-off period for all cases when the consumer 
directives grant consumers a right to withdraw from the contract, e.g. 14 calendar 
days.  

Option 2: Two categories of directives would be identified and to each of them a 
specific  cooling-off  period  would  be  attached  (e.g.  10  calendar  days  for  door-to-
door and distance contracts as opposed to 14 calendar days for timeshare).  

Option 3: Status quo: cooling-off periods would not be harmonised in the consumer 
acquis; they would be regulated in the sectoral legislation. 

4.8.2  The modalities of exercising the right of withdrawal 

The  modalities  of  exercising  the  right  of  withdrawal  are  currently  regulated 
differently across the consumer acquis. There are also significant differences in the 
Member  States’  transposition  of  the  directives.  In  some  countries  consumers  may 
choose how to notify the seller (e.g. by sending an email or simply by returning the 
good  to  the  seller),  whereas  in  others  the  consumer  is  obliged  to  use  a  certain 
procedure  such  as  registered  mail.  Clarifying  the  rules  on  how  to  return  products 
transactions.  A  recent 
could 
Eurobarometer survey shows that, in relation to distance selling, 65 % of consumers 
consider that there are more problems with returning a good during the cooling off 
period when it was bought cross-border. 

increase  consumer  confidence 

in  cross-border 

27 

See e.g. the case C-423/97 Travel Vac, where the ECJ found that the Doorstep Selling Directive was 
applicable to a timeshare contract. 

EN 

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To  clarify  and  simplify  matters,  the  provisions  on  the  modalities  of  exercising  the 
right of withdrawal could be harmonised in the horizontal instrument. 

Question F2: How should the right of withdrawal be exercised? 

Option  1:  Status  quo:  Member  States  would  be  free  to  determine  the  form  of  the 
notice of withdrawal.  

Option 2: One uniform procedure for the notice of withdrawal across the consumer 
acquis would be established.  

Option  3:  All  formal  requirements  for  the  notification  of  withdrawal  would  be 
excluded.  A  consumer  would  then  be  able  to  withdraw  from  the  contract  by  any 
means (including by returning the goods).  

4.8.3  The contractual effects of withdrawal  

The effect on the contract when the consumer exercises his or her right of withdrawal 
is  regulated  differently  for  different  types  of  contract  in  the  acquis.  The  Doorstep 
Selling  Directive  provides  only  that  withdrawal  releases  consumers  from  any 
obligations under the cancelled contract. Other legal effects are to be determined by 
national law. The Directive on Distance Selling provides instead that when the right 
of cancellation is exercised, the seller is obliged to reimburse the sums paid by the 
consumer free of charge as soon as possible and in any case within 30 days. The only 
charge that may be made to the consumer is the direct cost of returning the goods. 

The  horizontal  instrument  could  harmonise  the  provisions  on  the  effects  of 
withdrawal. The rule that consumers should not bear any costs when exercising their 
right of cancellation could be spelled out more clearly and made general whereby the 
option  for  Member  States  to  impose  charges  on  consumers  in  the  event  of 
cancellation could be removed. In addition, the horizontal instrument could provide 
for  a  general  time  limit  by  which  the  professional  would  have  to  reimburse 
consumers who exercise their right to withdraw, as it is currently the case in respect 
of contracts concluded at a distance. 

Question  F3:  Which  costs  should  be  imposed  on  consumers  in  the  event  of 
withdrawal? 

Option  1:  The  current  regulatory  options  would  be  removed  -  consumers  would 
then not face any costs whatsoever when exercising their right of cancellation. 

Option  2:  The  existing  options  would  be  generalised:  consumers  would  then  face 
the same costs when exercising the right to withdrawal irrespective of the type of 
contract.  

Option 3: Status quo: The current regulatory options would be maintained. 

4.9 

General contractual remedies  

The acquis does not provide for a general set of remedies available to consumers for 
all consumer contracts. Existing remedies are limited to particular types of contracts. 
The  Directive  on  Sale  of  Consumer  Goods  for  example,  grants  consumers  some 

EN 

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remedies, but not all of those remedies apply to all consumer contracts. The absence 
of general remedies at EU level creates a deficit in consumer protection. 

According to a recent Eurobarometer survey, 71 % of consumers consider it harder 
to  resolve  problems  such  as  complaints,  returns,  price  reductions  and  guarantees 
when  shopping  cross-border.  Common  EU-wide  remedies  in  the  horizontal 
instrument  could  contribute  to  addressing  this  problem.  However,  this  would  not 
tackle the problems faced by consumers concerning the enforcement of rights against 
a person established in another country. Reduction of the price and termination of a 
contract could be construed as remedies of general application. Also the introduction 
of a general right to withhold performance in case of breach of a consumer contract 
could be considered. Under this option, if the consumer has not yet performed his or 
her  obligations  (typically  the  payment  of  the  price)  –  the  professional  who  is  in 
breach  of  the  contract  cannot  enforce  his  rights  against  the  consumer  until  he 
performs correctly. 

Question  G1:  Should  the  horizontal 
contractual remedies available to consumers? 

instrument  provide  for  general 

Option  1:  Status  quo:  the  existing  law  provides  for  remedies  limited  to  the 
particular types of contracts (i.e. sales). The general contractual remedies would be 
regulated by national law. 

Option 2: A set of general contractual remedies available to consumers in the case 
of  a  breach  of  any  consumer  contract  would  be  provided.  These  remedies  would 
include: the right of a consumer to terminate the contract, to ask for a reduction of 
the price and to withhold performance.  

4.10  General right to damages  

In addition  to the right  to  withhold  performance and the  right  to  reduction of  price 
and termination of contract, the horizontal instrument could foresee a general right to 
damages for breach of a consumer contract. At the moment, the issue of damages is 
not regulated in the Community acquis, the only exception being the Package Travel 
Directive.  The  relationship  between  domestic  rules  on  damages  and  the  remedies 
provided  for  by  the  specific  directives  is  unclear.  Different  solutions  are  possible. 
The  horizontal  instrument  could  merely  introduce  a  general  right  to  damages  for 
consumers or it could specify that these damages should cover only purely economic 
damages or both economic and moral losses as in the Package Travel Directive. 

Question  G2:  Should  the  horizontal  instrument  grant  consumers  a  general 
right to damages for breach of contract? 

Option  1:  Status  quo:  the  issue  of  contractual  damages  would  be  governed  by 
national  laws,  except  when  provided  for  in  the  Community  acquis  (e.g.  package 
travel). 

Option  2:  A  general  right  to  damages  for  consumers  would  be  foreseen  -  they 
would be able to claim damages for all breaches, irrespective of the type of breach 
and the nature of the contract. It would remain up to the Member States to decide 
what types of damages could be compensated.  

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Option  3:  A  general  right  to  damages  for  consumers  would  be  foreseen  and  it 
would  be  provided  that  these  damages  should  at  least  cover  purely  economic 
(material)  damages  that  the  consumer  has  suffered  as  a  result  of  the  breach. 
Member  States  would  then  be  free  to  regulate  non-economic  loss  (e.g.  moral 
damages).  

Option  4:  A  general  right  to  damages  for  consumers  would  be  introduced  and  it 
would  be  provided  that  these  damages  should  cover  both  the  purely  economic 
(material) damage and moral losses. 

5. 

Specific rules applicable to Consumer Sales 

5.1 

Types of contracts to be covered  

The Directive on Consumer Sales applies to sales contracts. It does not apply to any 
other  type  of  contract  involving  the  supply  of  goods,  except  for  goods  to  be 
manufactured in the future. Therefore a consumer who hires a car is not protected by 
its  provisions.  Likewise,  as  the  supply  of  digital  content  is  not  covered  by  the 
Directive, a consumer who downloads music from the Internet is not protected either. 
This is a potential consumer protection lacuna. If the horizontal instrument were to 
cover  these  types  of  contracts,  consumers  would  enjoy  the  same  protection  against 
lack of conformity regardless of the legal nature of the contract. 

The  lack  of  coverage  of  contracts  for  the  supply  of  software  and  data  (so  called 
“contracts  providing  digital  content”)  is  a  particularly  important  problem.  With  the 
increase  in  digital  content  consumption,  questions  of  liability  (e.g.  when  software 
damages  hardware)  and  guarantee  from  defects  will  grow  in  importance.  Several 
consumer  complaints  point,  for instance, to problems with music downloaded from 
the internet or used in MP3 players, software and digital content to be used in mobile 
phones (e.g. ring tones). An extension of the coverage of consumer protection rules 
to  such  situations  would  allow  consumers  to  make  use  of  remedies  for  non-
conformity and obtain damages. Such an extension of the scope of the Directive may, 
however,  require  specific  rules  since  digital  content  is  usually  licensed  rather  than 
sold to the consumers.  

Question  H1:  Should  the  rules  on  consumer  sales  cover  additional  types  of 
contracts  under  which  goods  are  supplied  or  digital  content  services  are 
provided to consumers?  

Option  1:  Status  quo:  i.e.  the  scope  of  application  would  be  limited  to  sales  of 
consumer goods, with the only exception of goods which are still to be produced.  

Option  2:  The  scope  would  be  extended  to  additional  types  of  contracts  under 
which goods are supplied to consumers (e.g. car rental).  

Option  3:  The  scope  would  be  extended  to  additional  types  of  contracts  under 
which digital content services are provided to consumers (e.g. on-line music) 

Option 4: Combination of Option 2 and 3 

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24 

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5.2. 

Second-hand goods sold at public auctions  

Under Article 1 (3) of the Directive, Member States may provide that the definition 
of consumer goods does not cover “second-hand goods sold at public auctions where 
the consumer has the opportunity to attend the sale in person”. This exemption is a 
source  of  uncertainty  both  for  businesses  and  consumers.  A  horizontal  instrument 
could  define  the  notion  of  “public  auctions”  in  order  to  remove  this  uncertainty; 
having said this it may be necessary to follow a specific and different approach for 
on-line auction. 

Question H2: Should the rules on consumer sales apply to second-hand goods 
sold at public auctions? 

Option 1: Yes.  

Option 2: No, they would be excluded from the scope of Community rules.  

5.3 

General obligations of a seller – delivery and conformity of goods  

According  to  a  recent  Eurobarometer  survey,  66 %  of  consumers  perceive  that 
delivery  in  the  context  of  cross-border  sales  may  cause  more  problems  than  for 
domestic sales. Adding rules on delivery should increase legal certainty and thereby 
consumer confidence. 

The Directive on Sale of Consumer Goods provides that the seller must deliver goods 
which  are  in  conformity  with  the  sales  contract.  However,  it  does  not  define  the 
notion of delivery. This is unfortunate, since the moment of delivery is the starting 
point for time limits for the exercise of fundamental consumer rights, e.g. remedies 
for non-conformity. The concept of delivery is also important for the passing of the 
risk28. 

The Directive does not provide for remedies against lack of delivery, late or partial 
delivery.  Regulating  such  questions  in  the  horizontal  instrument  would  require  a 
definition of delivery. 

The  horizontal  instrument  could  clarify  whether  delivery  means  that  the  consumer 
has materially received the goods (i.e. the consumer has acquired physical possession 
of the good, for example by collecting the ordered car from the dealer) or whether it 
is sufficient that the goods are put at the consumer’s disposal (e.g. the dealer informs 
the consumer that the ordered car has arrived at his garage and is ready to be picked 
up).  The  horizontal  instrument  could  also  provide  that,  as  a  default  rule,  delivery 
takes place when the consumer acquires physical possession of the good. The parties 
would remain free to agree otherwise. 

Question I1: How should delivery be defined? 

Option  1:  Delivery  would  mean  that  the  consumer  materially  receives  the  goods 
(i.e. the goods are handed over to the consumer).  

28 

See point 5.5 in this annex. 

EN 

25 

   EN 

 
                                                 
Option 2: Delivery would mean that goods are placed at the consumer’s disposal at 
the time and place specified in the contract.  

Option  3:  Delivery  would  mean,  by  default,  that  the  consumer  takes  physical 
possession of the goods, but the parties can agree otherwise. 

Option 4: Status quo: the term delivery would not be defined. 

5.4 

The passing of risk in consumer sales  

An issue connected to the definition of delivery is whether the horizontal instrument 
should regulate the passing of risk in consumer sales, i.e. the question of the point at 
which the professional bears the risk and the cost of any deterioration or destruction 
of  the  good  and  when  this  risk  passes  to  the  consumer,  e.g.  in  a  situation  where  a 
good is damaged or destroyed while in transit from the seller to the consumer. At the 
moment,  the  issue  is  regulated  differently  in  the  Member  States.  In  some  Member 
States the risk passes to the buyer at the time of the conclusion of the contract while 
in others property does not pass with the conclusion of the sales contract but with the 
delivery. 

The passing of the risk could be linked to the moment of delivery. Depending on the 
definition of delivery, this could be at the time when the consumer acquires physical 
possession of the good or at an earlier stage. 

Question I2: How should the passing of the risk in consumer sales be regulated?

Option  1:  The  passing  of  the  risk  would  be  regulated  at  Community  level  and  be 
linked to the moment of delivery. 

Option 2: Status quo: the passing of risk would be regulated by the Member States, 
with the consequence of divergent solutions.  

5.5 

Conformity of goods  

5.5.1 

Introduction  

The  duty  of  the  seller  to  deliver  goods  in  conformity  with  the  contract  is  the 
cornerstone  of  the  Directive  on  Consumer  Sales.  The  Directive  establishes  a 
presumption that goods are in conformity with the contract if they fulfil a series of 
conditions which are considered to be implied by the contract (e.g. that the goods are 
fit for the purposes for which goods of the same type are normally used). 

5.5.2  Extension of time limits  

Under  the  directive,  the  seller  is  liable  for  any  lack  of  conformity  which  existed  at 
the time of delivery and becomes apparent within two years from that moment (legal 
guarantee). The Directive does not regulate the suspension or interruption of the two-
year  period  in  the  event  of  repair,  replacement  or  negotiations  between  seller  and 
consumer.  Some  Member  States  have  introduced  specific  rules  on  the  extension  of 
the period during which the seller is liable while the seller is trying to cure the defect, 
whereas  others  have  not  introduced  such  rules.  This  has  led  to  significant 

EN 

26 

   EN 

 
divergences  among  national  laws  impeding  cross  border  trade.  A  horizontal 
instrument  could  provide  that  the  duration  of  the  legal  guarantee  is  extended  for  a 
period corresponding to the time during which the consumer was not able to use the 
goods because some remedy was being performed. 

Question J1: Should the horizontal instrument extend the time limits applying 
to lack of conformity for the period during which remedies were performed? 

Option 1: Status quo: no changes would be made. 

Option  2:  Yes.  The  horizontal  instrument  would  provide  that  the  duration  of  the 
legal guarantee is extended for a period during which the consumer was not able to 
use the goods due to remedies being performed.  

5.5.3  Recurring defects  

It may happen that defects which became apparent within two years from delivery re-
appear after the expiry of the legal guarantee, even though they have been repaired. 
In  these  cases,  consumers  are  left  with  goods  which  were  already  defective  at  the 
moment  of  delivery,  but  for  which  any  further  repair  is  at  the  expense  of  the 
consumers.  Some  Member  States  have  introduced  specific  rules  to  deal  with 
recurring defects. 

A horizontal instrument could provide that when the seller repairs the goods during 
the  period  of  the  legal  guarantee,  the  guarantee  is  automatically  extended  to  cover 
any future re-emergence of the same defect for a period to be specified since repair. 
The  issue  of  recurring  defects  could  also  be  relevant  in  the  context  of  remedies, 
possibly justifying a consumer’s claim for replacement instead of another repair. 

Question J2: Should the guarantee be automatically extended in case of repair 
of the goods to cover recurring defects? 

Option 1: Status quo: The guarantee would not be extended. 

Option 2: The duration of the legal guarantee would be extended for a period to be 
specified after the repair to cover the future re-emergence of the same defect. 

5.5.4  Second-hand goods  

Member States may currently provide that, in case of second-hand goods, the seller 
and  the  consumer  may  agree  on  a  shorter  time  period  for  the  liability  of  the  seller, 
provided  this  period  is  not  less  than  one  year.  Varying  conditions  in  different 
Member States cause legal uncertainty. 

This could be corrected by eliminating the possibility for the seller and the consumer 
to  agree  on  a  shorter  time  period  of  liability.  This  should  not  create  any 
disproportionate  burden  on  professionals  since  they  would  only  remain  responsible 
for those defects which already existed at the moment of delivery29. 

29 

In addition, as it is mentioned below, the presumption that the defects which become apparent within 
six  months  from  delivery  were  already  existent  at  that  moment  only  applies  if  it  is  not  incompatible 

EN 

27 

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Another option could be to allow professionals and consumers throughout Europe to 
agree on a shorter period for the seller’s liability for lack of conformity. 

Question J3: Should specific rules exist for second hand-goods? 

Option 1: A horizontal instrument would not include any derogation for second hand 
goods:  the  seller  and  consumer  would  not  be  able  to  agree  on  a  shorter  period  of 
liability for defects in second hand goods.  

Option  2:  A  horizontal  instrument  would  contain  specific  rules  for  second  hand 
goods:  the  seller  and  the  consumer  may  agree  on  a  shorter  period  of  liability  for 
defects in second hand goods (but not less than one year).  

5.6 

Burden of proof  

The Directive establishes a rebuttable presumption that any lack of conformity which 
becomes apparent within six months from delivery shall be presumed to have existed 
at  the  time  of  delivery.  However,  such  presumption  does  not  apply  when  it  is 
incompatible with the nature of the goods or the nature of the lack of conformity. 

The  Commission  has  been  informed  that  it  is  difficult  to  apply  a  system  with  a 
rebuttable presumption that can only be used when it is compatible with the nature of 
the goods and the defects. Once the six-month period has passed, consumers have to 
prove a fact (the existence of the defect at the time of delivery) which is extremely 
difficult  to  establish  without  access  to  relevant  technical  data  and/or  specialised 
assistance. Even during the first six months it is in each case necessary to examine 
whether the consumer can actually invoke the presumption and obtain the reversal of 
the burden of proof. This way the reversal of the burden of proof serves de facto as a 
limitation of the legal guarantee30. 

The Commission wonders if the present regime should not be changed. A horizontal 
instrument could provide that the professional would have to prove that the defects 
did not exist at the time of delivery since the seller is better placed than the consumer 
to  access  relevant  data  (e.g.  by  contacting  the  producer)  and  provided  that  the 
consumer acts in good faith. In any case the reversal of the burden of proof applies 
only if compatible with the nature of the goods and of the defects. The seller would, 
therefore, still be able to escape this reversal of the burden of proof in case of normal 
wear and tear. 

Question  J4:  Who  should  bear  the  burden  to  prove  that  the  defects  existed 
already at the time of delivery? 

Option 1: Status quo: During the first six months it would be up to the professional 
to prove that the defect did not exist at the time of delivery. 

Option 2: It would be up to the professional to prove that the defect did not exist at 

30 

with  the  nature  of  the  goods  and  the  nature  of  the  defects.  These  rules  ensure  an  adequately 
differentiated treatment of second hand goods vis-à-vis new products.  
For instance in some Member States, after the six months period, consumers are forced by the sellers to 
prove the existence of the defect at the moment of delivery by producing expensive technical reports.  

EN 

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the  time  of  delivery  for  the  entire  duration  of  the  legal  guarantee,  as  long  as  this 
would be compatible with the nature of the goods and the defects.  

5.7 

Remedies  

5.7.1 

Introduction  

In  the  context  of  consumer  sales,  remedies  should  lead  to  the  fulfilment  of 
consumers’  reasonable  expectations  in  relation  to  the  contract.  However,  the 
Directive  provides  for  remedies  only  in  the  case  of  non-conformity  and  not  other 
kinds of breaches of contract, e.g. when the goods are not delivered at all. Consumers 
perceive the existing rules as unsatisfactory. Approximately 70 % of consumers state 
that when buying goods cross-border it is harder to resolve problems such as returns 
or price reduction in comparison with the domestic situations. 

As mentioned in point 4.9 in this annex, the horizontal instrument might provide for 
some  general  remedies,  which  would  apply  to  any  breaches  of  consumer  contracts. 
The remaining, sale-specific remedies (repair and replacement) could continue to be 
available only in case of non-conformity of the goods. 

5.7.2  The order in which remedies may be invoked  

Currently  the  Directive  provides  for  a  particular  order  in  which  remedies  may  be 
invoked. Reduction of price or termination of contract can only be invoked if repair 
and  replacement  are  impossible  or  disproportionate.  The  Commission  has  been 
informed  that  it  is  difficult  for  consumers  to  assess  whether  a  professional’s  claim 
that a particular remedy would be disproportionate is right or not. 

A  horizontal  instrument  could  allow  consumers  to  choose  freely  amongst  the 
available  remedies  in  case  of  wrong  performance.  However,  to  limit  the  economic 
burden  on  the  professional,  termination  of  contract  would  remain  available  only  in 
case  of  non-performance  and  breaches  that  are  so  serious  as  to  give  consumers 
reasonable grounds to refuse correct performance. 

Alternatively,  the  horizontal  instrument  could  maintain  the  current  sequence  of 
remedies, with some amendments. For instance, it could provide that the reduction of 
the price is available immediately as an alternative to repair and replacement, while 
at the same time altering the conditions under which the consumer can “move” from 
these first-line remedies to the termination of contract (e.g. in the case of recurring 
defects). 

Question  K1:  Should  the  consumer  be  free  to  choose  any  of  the  available 
remedies? 

Option  1:  Status  quo:  consumers  would  be  obliged  to  request  repair/replacement 
first,  and  ask  for  a  price  reduction  or  termination  of  contract  only  if  the  other 
remedies are unavailable.  

Option 2: Consumers would be able to choose any of the available remedies from 
the  start.  However,  termination  of  the  contract  would  only  be  possible  under 
specific conditions. 

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Option 3: Consumers would be obliged to request repair, replacement or reduction 
of  price  first,  and  would  be  able  to  ask  for  termination  of  contract  only  if  these 
remedies are unavailable.  

5.8 

Notification of the lack of conformity  

The  Directive  allows  Member  States  to  provide  that  the  consumer  must  inform  the 
seller of the lack of conformity within a period of no less than two months from the 
moment of discovery in order to benefit from his rights. Most Member States have 
made  use  of  this  option,  some  of  them  waiving  this  obligation  only  in  certain 
circumstances. The horizontal instrument should eliminate the existing divergences, 
which cause confusion for consumers and businesses. 

Question  K2:  Should  consumers  have  to  notify  the  seller  of  the  lack  of 
conformity?  

Option 1: A duty to notify the seller of any defect would be introduced.  

Option 2: A duty to notify in certain circumstances would be introduced (e.g. when 
the seller acted contrary to the requirement of good faith or was grossly negligent).  

Option 3: The duty to notify within a certain period would be eliminated.  

5.9 

Direct producers’ liability for non-conformity  

A  number  of  Member  States  have  introduced  various  forms  of  direct  liability  of 
producers.  These  differ  considerably  as  to  the  conditions  and  modalities.  The 
horizontal  instrument  may  address  these  divergences  by  introducing  rules  on  the 
direct liability of producers (e.g. the introduction on an EU wide producer’s liability) 
so  that  consumers  would  be  able  to  request  certain  remedies  directly  from  the 
manufacturer  (and  possibly  from  the  importer)  throughout  the  EU.  This  would 
eliminate  possible  internal  market  barriers  and  would  favour  especially  consumers 
buying  cross-border.  A  more  detailed  analysis  can  be  found  in  the  Report  on  the 
implementation of the Consumer Sales Directive. 

The issue of producers’ liability in the context of the review of the acquis is limited 
to situations where a good is not in conformity with the consumer contract, e.g. the 
product  does  not  have  the  quality  or  characteristics  that  the  consumer  is  entitled  to 
expect.  Liability  for  damage  caused  by  the  defectiveness  of  a  product,  i.e.  death, 
personal  injuries  or  destruction  of  any  item  of  property  other  than  the  defective 
product  itself,  is  regulated  by  the  Product  Liability  Directive  and  falls  outside  the 
scope of the review31. 

Question  L:  Should  the  horizontal  instrument  introduce  direct  liability  of 
producers for non-conformity? 

Option 1: Status quo: no rules on direct liability of producers would be introduced 

31 

Council  Directive  85/374/EEC  of  25  July  1985  on  the  approximation  of  the  laws,  regulations  and 
administrative provisions of the Member States concerning liability for defective products. 

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at EU level.  

Option 2: A direct liability for producers would be introduced under the conditions 
described above. 

5.10  Consumer Goods Guarantees (Commercial guarantees) 

On  top  of  the  rights  conferred  upon  consumers  by  legislation,  sellers  or  producers 
may offer consumers additional rights on a voluntary basis (a so-called commercial 
guarantee). They can, for example, grant consumers certain rights in case the goods 
do  not  meet  the  specifications  set  out  in  the  guarantee  statement  and  in  associated 
advertising. 

5.10.1  Content of the commercial guarantee  

The  directive  does  not  address  the  question  of  what  happens  if  the  guarantee 
statement omits to inform the consumer on the content of the guarantee. It has been 
stated  that  the  current  situation  may  mislead  consumers  who  rely  on  such  vague 
statements without checking whether they are actually granted any additional rights. 

A horizontal instrument could remedy this situation by providing a default content of 
a guarantee setting out basic rights which the guarantee holder should have if these 
are  not  spelled  out  in  the  guarantee  document.  These  may  include  a  right  to 
replacement or repair if goods are not in conformity with the contract. If the duration 
of the commercial guarantee is not indicated it could apply to the estimated life-span 
of  the  goods.  It  would  have  to  be  EU-wide.  Finally,  the  costs  of  invoking  and 
performing the guarantee would be borne by the guarantor. 

Question M1: Should a horizontal instrument provide for a default content of 
a commercial guarantee? 

Option 1: Status quo: the horizontal instrument would contain no default rules.  

Option 2: Default rules for commercial guarantees would be introduced.  

5.10.2  The transferability of the commercial guarantee  

The  directive  does  not  regulate  the  issue  of  the  transferability  of  the  commercial 
guarantee  to  subsequent  buyers.  This  is  important  for  consumers  who  intend  to  re-
sell a product as well as for subsequent buyers who would like the products still to be 
covered  by  the  commercial  guarantee  especially  in  the  context  of  a  cross-border 
transaction. 

The  horizontal  instrument  may  address  this  problem  by  providing  that  a  guarantee 
would  benefit  also  subsequent  buyers  of  a  product.  Such  a  rule  could  have  a 
mandatory  or  default  character  (i.e.  the  seller  would  be  able  to  limit  the 
transferability of the guarantee in certain circumstances). 

Question  M2:  Should  a  horizontal  instrument  regulate  the  transferability  of 
the commercial guarantee?  

Option 1: Status quo: the possibility to transfer a commercial guarantee would not 

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be regulated by Community rules. 

Option  2:  A  mandatory  rule  that  the  guarantee  is  automatically  transferred  to  the 
subsequent buyers would be introduced.  

Option  3:  The  horizontal  instrument  would  provide  for  the  transferability  as  a 
default  rule,  i.e.  a  guarantor  would  be  able  to  exclude  or  limit  the  possibility  to 
transfer a commercial guarantee.  

5.10.3  Commercial guarantees for specific parts  

In  the  case  of  complex  goods  (e.g.  cars)  producers  offer  commercial  guarantees 
limited to specific parts. The horizontal instrument could make sure that consumers 
are  clearly  informed  on  which  parts  are  covered  by  a  particular  guarantee.  If  such 
information is not provided the limitation would be without any effect. 

Question  M3:  Should  the  horizontal 
guarantees limited to a specific part? 

instrument  regulate  commercial 

Option  1:  Status  quo:  the  possibility  to  provide  commercial  guarantee  limited  to 
specific part would not be regulated by the horizontal instrument. 

Option  2:  The  horizontal  instrument  would  only  provide  for  the  information 
obligation.  

Option  3:  The  horizontal  instrument  would  include  an  information  obligation  and 
would provide that, by default, a guarantee covers the entire contract goods.  

6. 

Other issues 

In  this  document  stakeholders  are  consulted  on  a  number  of  issues  that  have  been 
identified  as  important  in  the  context  of  the  review  of  the  consumer  acquis.  The 
Commission welcomes information and suggestions on any other matter deemed to 
be pertinent and relevant to overall objectives of the review. 

Question  N:  Is/are  there  any  other  issue(s)  or  area(s)  that  requires  to  be 
explored  further  or  addressed  at  EU  level  in  the  context  of  consumer 
protection? 

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ANNEX II 

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. 

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