Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects concerning contracts for the online and other distance sales of goods
Date: 2015-12-09
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: approximation of laws, commercial contract, consumer goods, consumer protection, contract, digital technology, electronic commerce, impact of information technology, information society, single market

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   EUROPEAN COMMISSION  Brussels, 9.12.2015  COM(2015) 635 final 2015/0288 (COD)   Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects concerning contracts for the online and other distance sales of goods  (Text with EEA relevance) {SWD(2015) 274 final} {SWD(2015) 275 final}  
 
1. 

CONTEXT OF THE PROPOSAL 

EXPLANATORY MEMORANDUM 

The Digital Single Market Strategy1 adopted by the Commission on 6 May 2015 announced a 
legislative initiative on harmonised rules for the supply of digital content and the online sales 
of goods. This initiative is composed of (i) a proposal on certain aspects concerning contracts 
for the supply of digital content, and (ii) a proposal on certain aspects concerning contracts for 
the online2 and other distance sales of goods.  

As announced by the Commission in its 2015 Work Programme, these two proposals draw on 
the  experience  acquired  during  the  negotiations  for  a  Regulation  on  a  Common  European 
Sales  Law.  In  particular,  they  no  longer  follow  the  approach  of  an  optional  regime  and  a 
comprehensive set of rules. Instead, the proposals contain a targeted, fully harmonised set of 
rules. The proposals also build on a number of amendments made by the European Parliament 
in first reading concerning the proposal for a Regulation on a Common European Sales Law, 
in  particular  the  restriction  of  the  scope  to  online  and  other  distance  sales  of  goods  and  the 
extension  of  the  scope  to  certain  digital  content  which  is  provided  against  another  counter-
performance than money. 

While  this  explanatory  memorandum  covers  specifically  the  proposal  on  certain  aspects 
concerning  contracts  for  the  online  and  other  distance  sales  of  goods,  the  part  of  this 
explanatory memorandum explaining the reasons for the proposal concerns both proposals as 
these two proposals are envisaged as a package with common objectives.  

• 

Reasons for and objectives of the proposal 

The  general  objective  of  the  proposals  is  to  contribute  to  faster  growth  of  opportunities 
offered  by  creating  a  true  Digital  Single  Market,  to  the  benefit  of  both  consumers  and 
businesses. By eliminating the key contract law-related barriers hindering cross-border trade, 
the  rules  put  forward  in  the  proposals  will  reduce  the  uncertainty  faced  by  businesses  and 
consumers due to the complexity of the legal framework and the costs incurred by businesses 
resulting from differences in contract law. 

39% of businesses selling online but not cross-border quote different national contract laws as 
one of the main obstacles to cross-border sales.3 This applies particularly to remedies in case 
of a faulty product as mentioned by 49% of EU retailers selling online and 67% of those who 
are  currently  trying  to  sell  or  considering  selling  online  cross-border.4  Different  national 
contract  law  rules  have  created  one-off  costs  for  retailers  selling  to  consumers  of 
approximately  €4  billion;  these  costs  mostly  affect  micro  and  small-  and  medium-sized 
enterprises  (SMEs).  The  purpose  of  these  proposals  is  to  create  a  business-friendly 
environment  and  make  it  easier  for  businesses,  especially  SMEs,  to  sell  cross-border. 
Businesses  should  be  given  legal  certainty  and  avoid  unnecessary  costs  caused  by  differing 
national laws when selling goods and digital content outside their domestic market.  

Only 18% of consumers who used the Internet for private purposes in 2014 purchased online 
from another EU country while 55% did so domestically.5 Consumers are not confident when 

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COM(2015) 192 final http://ec.europa.eu/priorities/digital-single-market/ 
For the purpose of this Explanatory memorandum, any reference to ''online sales'' shall be understood as "online and other distance sales" 
Flash Eurobarometer 396 "Retailers' attitudes towards cross-border trade and consumer protection" (2015). 
Flash Eurobarometer 413 "Companies engaged in online activities" (2015), breakdown by sector (B2C only). 
Eurostat survey on ICT usage in households and by individuals (2014) 

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buying online across borders and believe that they are better protected when buying online in 
their  own  country,  under  their  familiar  domestic  law.  One  of  the  major  reasons  is  their 
uncertainty  about  their  key  contractual  rights.  Differing  national  regimes  also  constitute  an 
obstacle  to  efficient  enforcement  of  consumer  rights.  As  a  result,  consumers  miss 
opportunities and face a narrower range of goods at less competitive prices. Moreover, since 
consumers are not confident to shop online cross-border, they are unable to take advantage of 
existing  price  divergences  between  Member  States  and  thus  miss  important  potential 
opportunities. 

It  is  necessary  to  act  fast  in  relation  to  the  online  sales  of  goods.  At  the  same  time, 
harmonising the rules on distance sales may bear the risk to have rules on the distance sales 
which are different from the rules on the face-to-face sales. Given the increasing importance 
of  the  omni-channel  distribution  model  (i.e.  selling  at  the  same  time  via  multiple  channels 
such as directly in a shop, online or otherwise at a distance), the Commission will take steps 
to avoid such a result and ensure that consumers and traders will indeed be able to rely on a 
coherent legal framework which is simple to apply everywhere in the EU. 

Therefore,  together  with  the  current  proposal,  the  Commission  has,  in  the  context  of  its 
Regulatory  Fitness  and  Performance  Programme,  launched  an  in-depth  analysis  of  the 
existing EU consumer legislation. Data from the Fitness Check Analysis on the application of 
the Consumer Sales and Guarantees Directive to face-to-face purchases of goods are likely to 
be available in the 2nd half of 2016. While these data and therefore the outcome of the Fitness 
Check exercise on this point are not yet available, its possible conclusions if pointing to the 
need  for  a  Commission  initiative  on  the  face-to-face  sales  of  goods,  could  feed  into  the 
progress  made  by  the  co-legislators  on  the  proposal  for  online  and  other  distance  sales  of 
goods.  

• 

Consistency with existing policy provisions in the policy area 

The  key  substantive  provisions  of  this  proposal  cover  the  main  differences  of  national 
consumer  mandatory  rules  following  the  Member  States  implementation  of  the  minimum 
harmonisation rules of 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 guarantees6. 
It  is  those  main  differences  on  national  rules  which  affect  traders’  decision  whether  or  to 
which extent to sell goods cross-border.  

While the proposal takes  the rules of Directive 1999/44/EC as a basis, it provides for a full 
harmonisation  of  the  conformity  criteria  for  the  goods,  of  the  hierarchy  of  the  remedies, 
available  to  consumers  and  of  the  periods  for  the  reversal  of  burden  of  proof  and  the  legal 
guarantees.  Furthermore,  certain  features  of  the  current  Directive  1999/44/EC  are  clarified, 
such as the fact the consumer would be entitled to termination or price reduction if the seller 
does  not  repair  or  replace  the  goods  within  a  reasonable  time.  Differently  from  Directive 
1999/44/EC,  the  consumer  would  also  have  the  right  to  terminate  in  case  of  minor  defects. 
Also,  unlike  Directive  1999/44/EC,  under  the  proposal  consumers  would  not  have  the  duty 
that they currently have under a number of national laws to notify a defect of the goods to the 
seller  within  a  certain  period  of  time  from  its  discovery.  A  major  change  compared  to 
Directive  1999/44/EC  is  certainly  that  the  period  for  the  shift  of  the  burden  of  proof  is 
extended  to  two  years.  Like  Directive  1999/44/EC,  the  proposal  leaves  provisions  on  the 
consumer's right to receive compensation for the losses caused by such lack of conformity to 
national laws.  

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OJ L 171, 7.7.1999, p.12. 

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Furthermore,  the  proposal  also  supplements  Directive  2011/83/EU  of  the  European 
Parliament  and  of  the  Council  of  25  October  2011  on  consumer  rights,  amending  Council 
Directive  93/13/EEC  and  Directive  1999/44/EC  of  the  European  Parliament  and  of  the 
Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European 
Parliament  and  of  the  Council7,  which  has  already  fully  harmonised  certain  rules  for  the 
online and other distance sales of goods (mainly pre-contractual information requirements and 
the  right  of  withdrawal).  The  proposal  also  supplements  Directive  2000/31/EC  of  the 
European  Parliament  and  of  the  Council  of  8  June  2000  on  certain  legal  aspects  of 
information  society  services,  in  particular  electronic  commerce,  in  the  Internal  Market 
(Directive  on  electronic  commerce)8,  which,  among  others,  partially  establishes  harmonised 
rules on electronic contracts. 

The proposal will not fully harmonise any rules on unfair terms  and therefore will not have 
any  impact  on  Council  Directive  93/13/EEC  of  5  April  1993  on  unfair  terms  in  consumer 
contracts9. 

The proposal  is  compatible with  the existing EU rules  on applicable  law and jurisdiction in 
the Digital Single Market10. Regulation (EU) No 1215/2012 of the European Parliament and 
of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of 
judgments  in  civil  and  commercial  matters11  and  the  Regulation  (EC)  No  593/2008  of  the 
European Parliament and of the Council of 17 June 2008 on the law applicable to contractual 
obligations  (Rome  I)12,  which  provide  rules  to  determine  the  competent  jurisdiction  and 
applicable  law,  apply  also  in  the  digital  environment.  These  instruments  have  been  adopted 
quite  recently  and  the  implications  of  the  internet  were  considered  closely  in  the  legislative 
process.  Some  rules  take  specific  account  of  internet  transactions,  in  particular  those  on 
consumer contracts. These rules aim at protecting consumers inter  alia in  the Digital  Single 
Market by giving them the benefit of the non-derogable rules of the Member State in which 
they are habitually resident. Since the current proposal on the online and other distance sales 
of  goods  aims  at  harmonising  the  key  mandatory  provisions  for  the  consumer  protection, 
traders  will  no  longer  face  such  wide  disparities  across  the  28  different  legal  regimes. 
Together with the proposed new contract rules for online and other distance sales of goods as 
set out in this proposal, the existing rules on private international law establish a clear legal 
framework for buying and selling in a European digital market, which takes into account both 
consumers' and businesses' interests. Therefore, this legislative proposal does not require any 
changes  to  the  current  framework  of  EU  private  international  law,  including  to  Regulation 
(EC) No 593/2008 (Rome I). 

The  proposal  complements  and  allows  sector  specific  Union  legislation,  such  as  the 
Ecodesign13  or  Energy  Labelling14  legislation,  its  implementing  and  delegated  acts,  to 

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OJ L 304, 22.11.2011, p.64.  

OJ L 178, 17.7.2000, p. 1–16. 

OJ L 095, 21.04.1993 p. 29 – 34. 

A detailed explanation of the EU rule on applicable law and jurisdiction in the Digital Single Market can be found in Annex 7 to the Commission Staff Working 

Document  containing  the  Impact  Assessment  accompanying  the  Proposals  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  certain  aspects 

concerning contracts for the supply of digital content and a Directive of the European Parliament and of the Council on certain aspects concerning contracts for 

the online and other distance sales of goods, SWD(2015) 275

OJ L 351, 20.12.2012, p. 1–32. 
OJ L 177, 4.07.2008, p. 6 
Directive 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of ecodesign requirements 

for energy-related products, OJ L285, 31.10.2009, p.10 – 35. 

Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product information of the 

consumption of energy and other resources by energy-related products, OJ L 153, 18.06.2010, p. 1 – 12. 

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introduce  product  specific  durability  requirements  for  example  durability  information 
requirements.  

• 

Consistency with other Union policies 

The  Digital  Single  Market  Strategy  intends  to  deal  with  all  major  obstacles  to  the 
development  of  cross-border  e-commerce  in  the  Digital  Single  Market  in a  holistic  manner. 
The proposal should be seen in the context of this holistic approach. This covers among others 
the  initiatives  related  to  the  role  of  platforms,  the  European  Cloud  initiative,  VAT  related 
burden  and  parcel  delivery.  It  also  covers  initiatives  related  to  enforcement/redress,  i.e.  the 
entry  into  operation  of  the  Online  Dispute  Resolution  platform15  and  the  review  of  the 
Regulation  (EC)  No  2006/2004  of  27  October  2004  on  cooperation  between  national 
authorities responsible for the enforcement of consumer protection laws16. In particular, fully 
harmonised contract law rules in the EU will also facilitate coordinated enforcement actions 
undertaken by the Consumer Protection Co-operation authorities17.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  of  this  proposal  is  Article  114  of  the  Treaty  on  the  Functioning  of  the 
European  Union  and  its  main  objective  is  the  improvement  of  the  establishment  and  the 
functioning of the internal market.  

The  existing  differences  in  consumer  contract  law  rules  hinder  traders  from  selling  online 
cross-border  because  they  have  to  adapt  their  contracts  to  different  mandatory  consumer 
contract law rules in different Member States they export to and consequently incur contract 
law related costs. Consumers are uncertain about their key contractual rights when shopping 
abroad  and  therefore  prefer  to  stick  to  their  own  domestic  markets.  Those  problems  have  a 
direct  effect  on  the  establishment  and  functioning  of  the  internal  market  and  limit 
competition.  

The  differences  between  national  mandatory  rules  that  apply  to  consumer  sales  contracts  in 
the Member States mainly result from national mandatory rules going beyond EU minimum 
harmonisation  Directives18  19.  There  are  several  key  areas  where  such  differences  exist  and 
bring additional costs for businesses and lack of legal certainty for consumers.  

Directive  1999/44/EC  provides  for  a  hierarchy  of  the  remedies  available  to  consumers.  If 
goods  are  not  in  conformity  with  the  contract,  a  consumer  is  entitled  to  have  the  goods 

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Regulation (EU) No 524/2013 of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 

2009/22/EC, OJ L 165, 18.06.2013, p.1. 

OJ L 364, 9.12.2004, p. 1. 
This Directive will amend the Regulation on consumer protection cooperation to add a reference of this Directive in the Annex of that Regulation. 
That  information  is  mainly  drawn  from  the  notifications  by  Member  States  to  the  Commission  according  to  Articles  32  and  33  of  Directive  2011/83/EU 

regarding 
Council 
http://ec.europa.eu/consumers/consumer_rights/rights-contracts/directive/notifications/index_en.htm. 

transposition 

93/13/EEC 

Directive 

Directive 

and 

the 

of 

1999/44/EC; 

for 

full 

notifications 

see: 

While  most  of  the  differences  in  the  national  consumer  rules  come  from  the  different  ways  the  Member  States  have  implemented  the  EU  minimum 

harmonisation directives, there are also some other national mandatory consumer contract law rules which do not have their origin in the implementation of EU 

consumer acquis. For specific examples see: the Impact Assessment accompanying the Proposals for a Directive of the European Parliament and of the Council 

on  certain  aspects  concerning  contracts  for  the  supply  of  digital  content  and  a  Directive  of  the  European  Parliament  and  of  the  Council  on  certain  aspects 

concerning contracts for the online and other distance sales of goods, SWD (2015) 275,  section 1.2."Main differences between consumer mandatory contract 
law rules affecting cross-border trade of goods".  

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brought into conformity by first requesting repair or replacement. Only as a second step can 
the consumer ask for termination of the contract or price reduction. 20 Member States20 have 
followed this approach, while other Member States have either offered the consumers a free 
choice of remedies, or have taken over the hierarchy of remedies but have also provided for 
another remedy, for instance a right to reject non-conforming goods within a short deadline. 

According to Directive 1999/44/EC Member States are authorised to oblige the consumers to 
inform the seller of the defect within two months from its discovery in order to benefit from 
their  rights.  In  case  of  non-notification  consumers  lose  their  right  to  remedies.  While  in  11 
Member  States21  consumers  do  not  have  such  an  obligation,  in  12  Member  States22  the 
consumer has  to  notify the defect  within 2 months, and in 5 Member States23  the consumer 
has to do so within a different period of time.  

Pursuant  to  Directive  1999/44/EC  a  consumer  can  only  ask  for  a  remedy  if  the  goods  were 
non-conforming  when  delivered.  The  burden  of  proof  is  reversed  during  the  first  6  months, 
obliging  the  trader  to  prove  during  this  period  that  no  such  defect  existed  at  the  time  of 
delivery.  While  25  Member  States  have  followed  that  approach,  3  Member  States24  have 
recently extended the period for shifting the burden of proof. 

Directive 1999/44/EC provides that the trader can be held liable for a period of no less than 2 
years for defects  which were  present  at the time of delivery.  While 23 Member States  have 
implemented this 2 year period, in 1 Member State25 that period is longer and in 2 Member 
States26 it is unlimited. In 2 other Member States27 there is no specific legal guarantee period, 
but  the  consumer  rights  are  limited  by  the  prescription  period  (time  limits  in  national 
legislations within which rights can be invoked in court). 

Overall,  the  proposal  will  remove  obstacles  to  the  exercise  of  fundamental  freedoms  which 
result  from  these  differences  between  national  mandatory  consumer  contract  law  rules,  in 
particular from the additional transaction costs when concluding cross-border transactions and 
the  lack  of  confidence  in  their  rights  experienced  by  consumers  when  purchasing  from 
another EU country all of which have a direct effect on the establishment and functioning of 
the internal market and limit competition. 

The proposal  will guarantee  a high level of consumer protection  by providing a set of fully 
harmonised  mandatory  rules  which maintain  and  in  a  number  of  cases  improve  the  level  of 
protection that consumers enjoy under the existing Directive 1999/44/EC. 

• 

Subsidiarity  

The proposal complies with the subsidiarity principle as set out in Article 5 of the Treaty on 
European Union. 

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Austria, Belgium, Bulgaria, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Italy, Latvia, Luxemburg, Malta, the Netherlands, Poland, 

Romania, Slovakia, Spain, Sweden.  

Austria, Bulgaria, Czech Republic, France, Germany, Greece, Ireland, Lithuania, Luxembourg, Poland and the United Kingdom. 

Belgium, Croatia, Cyprus, Estonia, Finland, Italy, Latvia, Malta, Portugal, Romania, Slovenia and Spain.  

Within reasonable time in Denmark and Sweden; promptly in the Netherlands and immediately in Hungary (in these countries a notification within 2 months is 

always considered to be within the time limit); within 6 months in Slovakia. 
France, Portugal and Poland. 
Sweden. 

Finland and the Netherlands. 
Ireland and the United Kingdom. 

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The objective of the initiative is to remove consumer contract law barriers in the online trade 
and  help  to  establish  a  genuine  Digital  Single  Market  for  the  benefit  of  businesses  and 
consumers. This objective cannot be adequately achieved by the Member States. Rules on the 
sales  of  goods  in  Directive  1999/44/EC  are  of  minimum  harmonisation  and  therefore  allow 
for different implementation by the Member States. This has led to legal fragmentation. Only 
a coordinated intervention at the Union level aiming at removing existing diverging national 
approaches  in  the  European  Union  consumer  laws  by  way  of  full  harmonisation  can 
contribute to the completion of the internal market by solving this problem. 

The proposal is based on full harmonisation of certain key consumer contractual rights. Thus 
it will create a single set of rules ensuring the same high level of consumer protection across 
the European Union and allowing traders to sell to consumers in all Member States based on 
the same contractual terms. The proposal would significantly reduce traders' compliance costs 
while granting consumers a high level of protection. Therefore, action at EU level would be 
more effective than action at national level. 

The  full  harmonisation approach  has  already  proven  successful  in  the  area  of  EU  consumer 
protection legislation, for instance through the rules of Directive 2011/83/EU, by ensuring a 
set  of  uniform  consumer  rights  for  all  consumers  within  the  European  Union  which  are 
interpreted and enforced in a uniform way in all Member States. An initiative at EU level will 
secure  the  development  of  consumer  rights  in  a  coherent  manner  while  ensuring  that  all 
consumers in the EU benefit from the same high level of consumer protection. It will create 
legal certainty for businesses which want to sell their goods in other Member States. Such a 
result can only be achieved by an action at the EU level. 

Furthermore,  an  initiative  at  EU  level  will  secure  the  application  of  consumer  rights  in  a 
coherent manner while ensuring that all consumers in the EU benefit from the same high level 
of  consumer  protection.  It  will  create  legal  certainty  for  businesses  which  want  to  sell  their 
goods  in  other  Member  States.  Such  an  initiative  will  provide  a  consistent  legal  basis  for 
coordinated enforcement actions as the proposed Directive will be included in the Annex of 
Regulation  (EC)  No  2006/2004  on  cooperation  of  national  authorities  responsible  for  the 
enforcement  of  consumer  protection  laws.  Moreover,  enforcement  actions  would  be  largely 
facilitated  by  the  proposed  uniform  fully  harmonised  rules.  Thus  the  enforcement  of  EU 
legislation  will  be  strengthened  for  the  benefit  of  EU  consumers.  Such  a  result  can  only  be 
achieved by an action at the EU level. 

• 

Proportionality 

The  proposal  complies  with  the  principle  of  proportionality  as  set  out  in  Article  5  of  the 
Treaty on European Union because the proposal will not go beyond what is necessary for the 
achievement of the objectives.  

The  proposal  will  not  harmonise  all  aspects  concerning  contracts  for  the  online  and  other 
distance sales of goods. Instead, it will focus on further harmonising only those targeted, key 
mandatory  consumer  EU  contractual  rights  which  are  essential  in  cross-border  online 
transactions,  and  which  have  been  identified  as  barriers  to  trade  by  stakeholders  and  are 
necessary to build consumer trust when buying at a distance abroad. Moreover, the choice of 
the  legal  form  of  a  Directive  instead  of  a  Regulation  will  have  as  a result  considerably less 
interference into national laws (see below under "Choice of the instrument"). 

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• 

Choice of the instrument 

The Commission presents a set of two full harmonisation Directives: one Directive on certain 
aspects concerning contracts for the online and other distance sales of goods and a Directive 
on certain aspects concerning contracts for the supply of digital content.  

The choice of a Directive leaves Member States freedom to adapt the implementation to their 
national  law.  A  Regulation  would  require  a  much  more  detailed  and  comprehensive  regime 
than a Directive in order to allow its effects to be directly applicable. This would have as a 
consequence considerably more interference into national laws.  

The choice of full  harmonisation  will lead to simple and modern  rules that  remove contract 
law  barriers  and  create  a  level  playing  field  for  businesses  while  at  the  same  time  ensuring 
that consumers benefit from a high level of consumer protection all over the EU. 

A non-binding instrument such as a voluntary model contract would not achieve the objective 
to  improve  the  establishment  and  functioning  of  the  internal  market.  Traders  would  still  be 
obliged  to  comply  with  different  mandatory  national  rules  of  the  consumer's  country  of 
residence,  when  the latter  provide  for  a  higher level  of  consumer  protection  than the model 
contract, and would thus still face increased contract law-related costs.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

Consultation process 

An  extensive  consultation  strategy  has  been  developed  to  ensure  a  wide  participation 
throughout the policy cycle of this initiative. This strategy was based on a mix of public and 
targeted  consultations.  The  Commission  has  sought  a  wide  and  balanced  range  of  views  on 
this  issue  by  giving  the  opportunity  to  all  relevant  parties  (businesses,  consumers,  national 
authorities, lawyers and academics) to express their opinions.28  

-  Public  Consultation:  An  open  12  weeks  web-based  public  consultation  resulted  in  189 
responses from all categories of stakeholders from across the EU.  

- Targeted consultations: A stakeholder consultation group was composed of 22 organisations 
representing a wide range of interests. The group met 7 times.  

In-depth interviews with businesses were also conducted from June to August 2015 in order 
to gather data on contract law related costs faced by business when selling abroad.  

Within  the  framework  of  the  Digital  Single  Market  Strategy,  two  surveys,  a  consumer 
survey29 and a business survey30, were used in 2015 to collect data identifying the main cross-
border obstacles to the Digital Single Market.  

Consultation  of  Member  States:  Three  one-day  workshops  with  Member  States  were 
organised  between  June  and  October  2015.  The  relevant  issues  were  also  discussed  with 
national enforcement authorities at the Consumer Protection Cooperation committee meeting 

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For more details about the consultations, please see: http://ec.europa.eu/justice/newsroom/contract/opinion/index_en.htm  
GfK for  the  European  Commission,  Consumer  survey  identifying  the  main  cross-border  obstacles  to  the  Digital  Single Market  and  where  they  matter  most, 

2015. 

Flash Eurobarometer 413 "Companies engaged in online activities" (2015) http://ec.europa.eu/public_opinion/flash/fl_413_en.pdf  

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(April  2015)  and  the  national  authorities  responsible  for  consumer  policy  at  the  Consumer 
Policy Network meeting (May 2015). 

Summary of the results  

The  majority  of  respondents  from  the  consumer  side  recognise  that  harmonisation  may 
improve cross border e-commerce but they would only support full harmonisation as long as 
existing  consumer  protection  levels  across  Member  States  are  not  reduced.  They  also  warn 
about  the  risk  of  creating  different  regimes  depending  on  the  sales'  channel.  Consumer 
associations  strongly  oppose  any  form  of  the  application  of  the  trader's  law.  Moreover 
considering  the  different  characteristics  of  B2B  and  B2C  contracts  and  taking  into  account 
possible  frictions  with  already  existing  legal  instruments  consumer  organisations  do  not 
support  the  inclusion  of  B2B  contracts  in  the  scope  of  this  proposal.  The  majority  of 
businesses  would  favour  harmonised  EU  rules  on  the  B2C  sales  of  goods.  Some  business 
associations  however  are  doubtful  about  the  need  to  take  any  action,  but  if  there  is  some 
action at EU-level they would prefer the application of the trader's law and a modification of 
Regulation  (EC)  No  593/2008  (Rome  I).  Business  organisations  recommend  avoiding  as 
much  as  possible  a  sectorial  approach  which  could  lead  to  diverging  rules  for  online  and 
offline  sales  and  for  goods  and  digital  content.  The  large  majority  of  legal  professions' 
associations  would  favour  harmonised  EU  rules  and  the  same  regime  for  B2C  and  B2B 
contracts. 

Member States would in general support EU harmonised rules, but are cautious about political 
feasibility and the differentiation between online and offline sales rules. Some of them would 
prefer a better implementation, enforcement and evaluation of the existing legislation before 
producing  new  legislation.  The  vast  majority  of  Member  State  respondents  support  the 
inclusion  of  only  B2C  contracts.  In  addition,  an  important  number  of  Member  States 
explicitly oppose any form of application of the trader's law and, thus, amending the Rome I 
Regulation. 

On the substance of the rules, the majority of consumer associations support a free choice of 
remedies  while  the  majority  of  respondents  from  the  business  side  argue  in  favour  of  a 
hierarchy  of  consumer  remedies  across  the  EU.  Member  States  are  divided:  while  some  of 
them are in favour of a hierarchy of remedies, others would support a free choice of remedies 
by the consumer. A majority of respondents from the legal professions are in favour of a free 
choice  of  consumer  remedies,  while  some  others  prefer  to  keep  a  hierarchy  of  remedies, 
possibly  negotiable  between  the  parties.  On  the  reversal  of  the  burden  of  proof  consumer 
organisations advocate for a period longer than 6 months (mainly 2 years) and practically all 
of them are in favour of a longer legal guarantee period. Businesses would want to maintain 
the current 6-month reversal of burden of proof period and would support full harmonisation 
of  the  current  2-year  legal  guarantee  period.  Member  States  and  legal  professions  would  in 
general support maintaining the existing rules for the reversal of the burden of proof and the 
legal guarantee.  

• 

Collection and use of expertise 

The  Commission  relied  on  several  economic  and  legal  studies,  which  were  either 
commissioned for the specific purpose of this initiative or as part of the Digital Single Market 
Strategy. Those include a survey carried out in 2015 in order to identify the main cross-border 

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obstacles to the Digital Single Market31, Eurostat statistics 2014, Eurobarometers and an SME 
panel32.  

A  comparative  law  study  provided  an  overview  of  the  mandatory  rules  applicable  to 
contractual  obligations  in  contracts  for  sales  of  goods  sold  at  a  distance  and  in  particular 
online. 

• 

Impact assessment 

The Regulatory Scrutiny Board delivered an initial opinion on the draft impact assessment on 
16 October 2015 which has been modified taking into account comments from the Board and 
resubmitted.  The  second  opinion,  which  approved  the  draft  impact  assessment  subject  to 
comments, was delivered by the Board on 9 November 2015.33  

The  revised  impact  assessment  report  and  an  executive  summary  are  published  with  the 
proposals.34  

Policy alternatives examined 

In  addition  to  examining  the  consequences  of  the  absence  of  policy  change,  the  impact 
assessment examined the following policy alternatives: (i) option 1: targeted fully harmonised 
rules for goods and digital content; (ii) option 2: application of the trader's law combined with 
the existing harmonised rules on goods/targeted and fully harmonised rules for digital content; 
(iii)  option  3:  no  policy  change  for  goods  and  targeted  fully  harmonised  rules  for  digital 
content;  (iv)  option  4:  no  policy  change  for  goods  and  minimum  harmonisation  rules  for 
digital content; (v) option 5: a voluntary European model contract combined with an EU trust-
mark. 

On  a  comparative  analysis  of  the  impacts  of  these  options,  the  Impact  Assessment  Report 
arrived at the conclusion that option 1 would best meet the policy objectives. This option will 
reduce  contract  law-related  costs  for  traders  and  facilitate  cross-border  e-commerce. 
Businesses will be able to rely largely on their own law when selling cross-border as the main 
rules, which are relevant for cross-border trade, will be the same in all Member States. While 
the  new  rules  on  online  sales  of  goods  will  entail  certain  one-off  adaptation  costs  for 
businesses selling online, these costs would be counterbalanced by the cost savings resulting 
from the possibility to sell throughout the EU at no additional contract law-related costs, due 
to fully harmonised rules. Particularly small businesses will benefit compared to the current 
situation, as the cost savings from fully harmonised cross-border rules for goods will be the 
more  significant  the  smaller  a  business  is.  Therefore  the  new  rules  will  provide  businesses 
with a legally certain and business friendly environment. Consumers will have a clear set of 

31

32

33

34

See, in particular:  

- GfK for the European Commission, Consumer survey identifying the main cross-border obstacles to the Digital Single Market and where they matter most, 

2015 http://ec.europa.eu/consumers/consumer_evidence/market_studies/obstacles_dsm/docs/21.09_dsm_final_report.pdf 

- Eurostat survey on ICT usage in households and by individuals (2014),   

-  Comparative  Study  on  cloud  computing  contracts  (2014)  DLA  Piper,  p.33  and  seq.;    Analysis  of  the  applicable  legal  frameworks  and  suggestions  for  the 

contours of a model system of consumer protection in relation to digital content contracts; University of Amsterdam: Centre for the Study of European Contract 

Law (CSECL)Institute for Information Law (IViR): Amsterdam Centre for Law and Economics (ACLE) p.32 and seq 

- Flash Eurobarometer 413 "Companies engaged in online activities" (2015) http://ec.europa.eu/public_opinion/flash/fl_413_en.pdf 

- Economic study on consumer digital Content products, ICF International, 2015. 

A  SME  panel  survey  conducted  in  2011  within  the  Europe  Enterprise  network,    which  gathered  responses  from  1047  micro,  small  and  medium  sized 

businesses. 

The opinion of the Regulatory Scrutiny Board is available at: http://ec.europa.eu/justice/contract/index_en.htm. 

The impact assessment report and the Executive summary are available at : http://ec.europa.eu/justice/contract/index_en.htm. 

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rights throughout the EU and will thus be more confident in buying goods or accessing digital 
content cross-border. While in a few Member States the level of protection may be lowered 
on a few individual points, this option will significantly increase the overall current level of 
EU  consumer  protection  under  Directive  1999/44/EC,  notably  by  extending  the  period  of 
reversal  of  the  burden  of  proof  to  two  years.  Although  Member  States  will  not  be  able  to 
adopt or maintain more protective consumer protection rules, overall a high level of consumer 
protection will be ensured, and cross-border enforcement of the rules will be enhanced. This 
will create a win-win situation for businesses and consumers. Competition will be increased, 
leading  to  an  overall  increase  of  trade  and  consequently  an  increased  choice  at  more 
competitive prices for consumers, with significant macroeconomic gains for the EU. 

Lack of policy change would not contribute to achieving the objectives of the Digital Single 
Market, and would risk having negative economic impacts relative to the current situation.  
Option 2 would lead to increased incentives for cross-border supply, since traders would be 
able to sell their products cross-border entirely on the basis of their own law. Consumers may 
to  some  extent  benefit  from  increased  choice  and  lower  prices.  In  certain  cases  they  may 
benefit from a potentially higher level of consumer protection under the trader's law, if that 
goes on specific points beyond their own national law. However, as a result of the application 
of the trader's law for the online sales of goods and the respective derogation from Regulation 
(EC)  No  593/2008  (Rome  I),  European  consumers  would  no  longer  benefit  from  a  higher 
level of consumer protection that their own national law, going in its implementation beyond 
Directive  1999/44/EC,  may  provide  on  top  of  the  trader's  law.  This  would  have  a  negative 
impact on consumers' confidence in cross-border purchasing. In addition, it is very likely that 
such a change could not be limited to EU traders and, consequently, would entail the removal 
of protection offered by mandatory consumer contract rules in transactions with traders from 
third countries.  

In  options  3  and  4  contract  law-related  obstacles  to  cross-border  trade  would  remain  for 
goods.  

Option  5  could  help  businesses  sell  goods  across  the  EU  and  provide  consumers  with  a 
satisfactory level of consumer protection, very much depending on the content of the model 
contract rules to be agreed upon by the industry and on the degree of usage and acceptance of 
the  trust  mark  by  EU  businesses.  Consumers  may  be  more  confident  to  buy  from  foreign 
traders to whom the EU trust mark has been awarded. However, traders would still be obliged 
to  comply  with  mandatory  national  rules  of  the  consumer's  country  of  habitual  residence, 
when  they  provide  for  a  higher  level  of  consumer  protection  than  the  model  contract  rules, 
and may thus still face contract law-related costs.  

Main impacts of the proposal 

The  impact  assessment  considers  the  impact  of  both  proposals,  the  Directive  on  certain 
aspects concerning contracts for the supply of digital content and the Directive certain aspects 
concerning contracts for the online and other distance sales of goods.  

The  two  proposals  will  eliminate  contract  law  related  barriers  to  cross-border  online  trade, 
both  for  consumers  and  traders.  Removing  these  obstacles  is  an  incentive  for  cross-border 
trade:  if  the  barriers  related  to  contract  law  were  lifted,  122,000  more  businesses  would  be 
selling online across borders. Intra-EU exports would increase by around €1 billion. Increased 
online retail competition will lead to retail prices going down in all Member States, averaging 
-0.25% at EU level. As a result of this price decrease and increased consumer trust stemming 

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from uniform EU rights, there will be additional consumer demand. Household consumption, 
which mirrors consumers' welfare, would rise in every Member State with an EU average of 
+0.23%,  which  corresponds  to  about  €18  billion.  Between  7.8  and  13  million  additional 
consumers  would  start  buying  online  cross-border.  The  average  amount  spent  annually  by 
each cross-border buyer would also increase by €40. This increase in supply and demand will 
have direct effects on the main macroeconomic variables in each Member State and in the EU 
as a whole. Overall real EU GDP is expected to permanently gain about €4 billion per year.  

Who would be affected and how  

Businesses will face costs to comply with the new Directive but eventually benefit even more 
from  fully harmonised rules  to  export goods and digital content  throughout  the EU. Having 
implemented the new rules, businesses will largely not have to adapt their contract terms to 
the laws of other Member States, no matter how many Member States they sell to. SMEs will 
not be exempted from the new legislation: exemptions would decrease consumers' trust when 
purchasing  from  them.  There  is  no  justification  for  giving  consumers  less  protection  when 
they  buy  from  SMEs  instead  of  bigger  sellers.  An  exemption  would  also  undermine  the 
benefits  for  SMEs  of  having  one  single  set  of  rules  applying  throughout  the  EU.  On  the 
contrary, the initiative will be particularly beneficial to SMEs, which are more affected by the 
costs  to  adapt  their  contract  to  mandatory  rules  of  other  Member  States  and  are  more  often 
confined  to  their  home  market  that  their  bigger  competitors.  Cross-border  trade  is  an 
important way for them to benefit from the advantages of economies of scale. SMEs face a 
problem in finding customers. This would be easier to cope with in the online context, since 
the internet enables online sales at reduced costs compared to offline trade. 

For goods  in  particular, businesses currently selling only  face-to-face will not  have to  incur 
any  adaptation  costs.  Businesses  already  selling  or  wishing  to  sell  online  to  consumers  in 
other  Member  States  will  directly  benefit  from  the  cost  savings  resulting  from  fully 
harmonised  EU  rules.  Businesses  currently  selling  both  online  and  face-to-face  will  not  in 
practice be faced with additional costs due to different regimes, as a fragmentation between 
the rules on online and face-to-face sales of goods is not likely to occur or would probably not 
have a significant impact. If such costs do occur, they would be limited and only for a short 
transitional  period.  According  to  retail  business  representatives,  omni-channel  businesses 
could actually cope with possible transitional differences between the online and face-to-face 
sales regimes for goods  by applying the respective higher standards to all of their sales and 
thus operating under a single business model. 

For businesses the application of the new rules will entail a certain number of obligations in 
their relations with consumers. However, many of these obligations are already contained in 
national  laws,  to  different  degrees  and  extent,  as  a  result  of  EU  minimum  harmonisation 
legislation  and  therefore  businesses  are  familiar  with  them.  Regarding  in  particular  the 
prolongation of the period for the shift of the burden of proof from 6 months to two years, this 
is not expected to have a very significant impact on businesses, since recent data show that in 
practice only a minority of businesses insist on consumers proving the trader's liability within 
the  entire  2  year  legal  guarantee  period  and  that  the  reversal  of  the  burden  of  proof  often 
operates  de  facto  throughout  the  entire  2-year  legal  guarantee  period,  with  very  limited 
change in traders’ behaviour before or after the 6 months on this point. 35 

35

"Consumer market study on the functioning of Legal and Commercial Guarantees for consumers in the EU" (2015, to be published). 

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Consumer protection level will be increased compared to the existing EU level. This applies 
in particular to the extension of the reversal of the burden of proof to two years by aligning it 
with the legal guarantee period. Compared to their national standards, all EU consumers will 
benefit  on  this  point  from  a  higher  level  of  consumer  protection  (except  in  the  case  of  two 
Member  States  where  the  level  will  remain  the  same).  This  higher  level  of  protection  will 
facilitate consumers exercising their rights and is expected to significantly boost consumers' 
trust, which is particularly relevant for cross-border purchases given the element of distance 
involved.  As  regards  the  level  of  consumer  protection  on  other  points,  like  the  consumer's 
duty to notify the defect to the seller and the consumer's right to terminate the contract even in 
case where the non-performance is minor, in comparison with current national standards, in 
most cases the proposal will result in a higher level of protection, while in a limited number of 
Member States certain additional rights in some individual points may be lower. Nevertheless, 
overall a high level of consumer protection will be ensured and enforcement of the rules will 
be enhanced. In addition, not only consumers will have access to a wider choice of products 
from  traders  across  the  EU  at  competitive  prices,  but  they  will  also  be  able  to  benefit  from 
higher  quality  and  more  durable  products,  in  line  with  European  Commission's  Circular 
Economy Package. 

• 

Fundamental rights 

The proposal for the online and other distance sales of goods will impact positively a number 
of rights protected under the EU Charter of Fundamental Rights, in particular Article 38 on 
consumer protection and Article 16 on the freedom to conduct a business.  

A set of fully harmonised rules for online sales of goods will ensure a fully harmonised high 
level of consumer protection throughout the EU in conformity with Article 38 of the Charter 
of Fundamental Rights by providing consumers with clear and specific rights when they buy 
goods online domestically or from other Member States. However, these rules will replace the 
current national rules that exist for goods which could lower the level of protection consumers 
enjoy in certain Member States. 

A set of fully harmonised rules for online sales of goods will also contribute to achieving the 
objective  of  Article  16  because  businesses  will  be  facilitated  to  sell  goods  in  the  EU,  both 
domestically  and  cross-border.  Their  ability  to  expand  their  business  will  therefore  be 
reinforced.  

Finally,  clear  contract  law  rights  may  help  to  fulfil  the  objective  of  Article  47  (Right  to  an 
effective  remedy)  because  it  may  increase  the  ability  to  exercise  one's  right  to  an  effective 
remedy  before  the  courts.  The  new  rules  should  clarify  the  remedies  available  in  case  of 
disputes.  

4. 

BUDGETARY IMPLICATIONS 

The proposal will not have any budgetary implications 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Member  States  will  be  required  to  send  to  the  Commission  the  measures  implementing  the 
Directive  on  certain  aspects  concerning  contracts  for  the  online  and  other  distance  sales  of 
goods. These measures will set out the text of the adopted legislation by the Member States. 
The Commission will monitor these measures to ensure that they comply with the Directive. 

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• 

Explanatory documents 

In  accordance  with  the  Joint  Political  Declaration  of  28  September  2011  of  Member  States 
and  the  Commission  on  explanatory  documents,  Member  States  have  undertaken  to 
accompany,  in  justified  cases,  the  notification  of  their  transposition  measures  with  one  or 
more  documents  explaining  the  relationship  between  the  components  of  a  directive  and  the 
corresponding  parts  of  national  transposition  instruments.  With  regard  to  this  Directive,  the 
legislator considers the transmission of such documents to be justified. 

• 

Detailed explanation of the specific provisions of the proposal 

The proposal consists of 21 articles. Many of these provisions have their origin in Directive 
1999/44/EC or the proposal for a Regulation on a Common European Sales Law. 

Article 1 sets the subject matter and the scope of the Directive by clarifying that the Directive 
sets  certain  rules  on  conformity,  remedies  and  the  modalities  for  the  exercise  of  these 
remedies. In the course of the impact assessment, which accompanies the proposals, no B2B 
problems were identified; consequently the Directive does not  deal  with those matters. This 
Directive does not apply to goods like DVDs and CDs incorporating digital content in such a 
way  that  the  goods  function  only  as  a  carrier  of  the  digital  content,  neither  it  applies  to 
distance  contracts  for  provision  of  services.  However,  it  applies  to  goods  like  household 
appliances or toys where the digital content is embedded in such a way that its functions are 
subordinate to the main functionalities of the goods and it operates as an integral part of the 
goods.  Furthermore,  where  a  sale  contract  provides  both  for  the  sale  of  goods  and  the 
provision of services this Directive applies only to the part relating to the sale of goods.  

Article 2 contains a list of definitions for terms used in the Directive. Some definitions stem 
from the current acquis (such as, for example, the definition of 'consumer' and 'goods') and as 
they refer to the same concepts, they should be applied and interpreted in a manner consistent 
with the acquis. Others definitions come from Directive 2011/83/EU or from the proposal for 
a Regulation on a Common European Sales Law.  

Article  3  establishes  that  the  present  Directive  is  a  full  harmonisation  Directive.  Member 
States  will  not  be  able  to  adopt  or  maintain  laws  that  remain  below  or  go  beyond  the 
requirements  contained  therein.  The  effect  of  Article  3  combined  with  Article  1  is  also  to 
determine  that  in  areas  not  included  in  the  scope  of  the  Directive  Member  States  can  still 
legislate. 

Article 4 sets the conformity criteria which the goods have to meet in order to conform to the 
contract.  The  goods  must  primarily  conform  to  what  was  promised  in  the  contract.  It  also 
clarifies that, as a default rule, the conformity of the goods would be assessed not only with 
regard to the contract terms but also a combination of subjective and objective criteria should 
apply  in  order  to  safeguard  legitimate  interests  of  both  parties  to  a  sales  contract.  Those 
additional objective criteria are set in articles 5, 6 and 7.  

Article  5  sets  objective  criteria  for  conformity  of  the  goods.  In  the  absence  of  explicit 
contractual terms, specifying conformity criteria, the goods must conform to these objective 
criteria.  

Article  6  explains  that  a  lack  of  conformity  resulting  from  an  incorrect  installation  of  the 
goods is to be regarded as a lack of conformity of the goods themselves if the reason for the 
incorrect installation is in the sphere of the seller.  

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Article  7  contains  an  additional  conformity  requirement  relating  to  the  legal  defects  goods 
may have. According to that rule the goods must be clear of any third-party rights, including 
those based on intellectual property.  

Article 8 specifies at which time the conditions for the lack of conformity must be completed 
in  order  to  engage  the  seller's  liability  for  non-performance.  Generally,  that  is  the  time  of 
passing  of  risk,  similarly  as  in  Directive  2011/83/EU,  where  the  consumer  or  a  third  party, 
designated  by  the  consumer,  including  a  carrier,  commissioned  by  the  consumer,  obtains 
control  over  the  goods.  In  cases  where  the  goods  need  to  be  installed,  the  relevant  time  for 
establishing  conformity  is  when  the  installation  is  completed  or  after  the  consumer  had  a 
reasonable  time  for  installation  but  in  any  case  not  later  than  30  days  from  the  moment  of 
passing of risk. Finally, paragraph 3 of article 8 shifts the burden of proof for the absence of 
lack of conformity to the seller for a period of two years.  

Article  9  lists  the  remedies  for  lack  of  conformity  the  consumer  has  available  by  fully 
harmonising  the  order  in  which  remedies  could  be  exercised.  In  a  first  step  the  consumer 
should be entitled to have the goods repaired or replaced within a reasonable time and without 
any  significant  inconvenience.  In  a  second  step  the  consumer  should  be  entitled  to  a  price 
reduction  or  to  terminate  the  contract  where  the  lack  of  conformity  is  not  or  cannot  be 
remedied through repair or replacement. The article also provides the consumer with the right 
to withhold performance until the goods are brought in conformity.  

Article  10  imposes  on  the  seller  the  obligation,  when  remedying  a  lack  of  conformity  by 
replacement  of  goods,  to  take  back  the  replaced  goods  at  its  own  expenses.  The  seller  may 
take back the defective goods and install the new ones itself or commission a third party to do 
that at the seller's expenses. The article also clarifies that the consumer should not be obliged 
to pay for the use which was made of the replaced goods prior to the replacement. 

Article  11  clarifies  that  it  is  up  to  the  consumer  to  choose  between  repair  and  replacement 
unless  the  option  chosen  would  be  disproportionate  compared  to  the  other  option  available, 
impossible  or  unlawful.  It  also  provides  criteria  for  assessing  whether  the  option  chosen  is 
disproportionate compared to the other option available.  

Article 12 provides guidance as to how to calculate the price reduction. 

Article  13  regulates  the  modalities  for  and  the  consequences  of  exercising  the  right  to 
terminate the contract. The right to terminate the contract due to the lack of conformity is a 
last resort remedy applicable where other ways to remedy that lack of non-conformity are not 
feasible or have failed. The consumer should enjoy this right also in cases where the lack of 
conformity is minor. The article specifies that the contract can be terminated by any means of 
notice  from  the  consumer  and  that  termination  should  be  only  partial,  where  the  lack  of 
conformity relates only to part of the goods delivered under the contract. However where the 
lack of conformity can justify the termination of the contract as a whole, that remedy should 
not be limited to only partial termination. Article 13 furthermore regulates the restitution as a 
consequence  of  the  termination  by  providing  that  no  later  than  14  days  the  seller  should 
reimburse the price paid at its own expenses and that the consumer should return the defective 
goods  at  the  seller's  expense.  Finally,  this  article  regulates  consumers'  obligations  under 
certain restricted conditions to pay the monetary value of the goods where the goods cannot 
be returned and also to pay to a limited extent for the diminution of the value of the goods.  

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Article 14 maintains the time limits of two years for the availability of the remedies under this 
Directive.  Where  in  some  Member  States  the  rights  available  to  consumers  under  article  9 
may be subject to a prescription period that period cannot expire earlier.  

Article 15 provides transparency requirements as to the commercial guarantees issued by the 
sellers, for instance as to the form for delivery and the content a guarantee statement should 
have.  Moreover,  it  states  that  the  guarantee  is  binding  for  the  seller  in  accordance  with  the 
conditions  which  are  contained  in  advertisements,  pre-contractual  information  and  in  the 
guarantee statement. It clarifies that where conditions which are for instance advertised differ 
from  those  included  in  the  guarantee  statement  the  more  advantageous  to  the  consumers 
should prevail. 

Article 16 provides the seller with a right to redress in case of an act or omission by a person 
in  earlier  links  of  the  chain  of  transactions  which  triggered  the  seller's  liability  for  lack  of 
conformity towards the consumer. The modalities for exercising this right are to be regulated 
by the national laws of Member States. 

Article 17 obliges Member States to ensure that adequate and effective means exist to ensure 
compliance with this Directive. 

Article 18 affirms the mandatory nature of the consumer contract law rules of this Directive 
by  the  usual  clause  clarifying  that  any  deviation  from  the  requirements  contained  in  the 
Directive to the detriment of the consumer is not binding on the consumer. 

Article 19 provides for amendments to other EU legislation. It amends Directive 1999/44/EC 
in order to avoid overlaps between the two instruments. Article 19 also adds a reference to the 
Directive  in  the  Annex  of  Regulation  (EC)  No  2006/2004  so  as  to  facilitate  cross-border 
cooperation  on  enforcement  of  this  Directive.  It  also  adds  a  reference  to  the  Directive  in 
Annex 1 of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 
2009  on  injunctions  for  the  protection  of  consumers’  interests36 so  as  to  ensure  that  the 
consumers’ collective interests laid down in this Directive are protected. 

Article 20 establishes the deadline for transposition by Member States. 

Article 21 sets the date of entry into force.  

Article 22 specifies the addressees of the Directive.  

36

OJ L110, 1.05.2009 , p.30. 

EN 

16 

   EN 

 
 
                                                 
 
2015/0288 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain aspects concerning contracts for the online and other distance sales of goods 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee37,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

In  order  to  remain  competitive  on  global  markets,  the  Union  needs  to  successfully 
answer the multiple challenges raised today by an increasingly technologically-driven 
economy.  The  Digital  Single  Market  Strategy38  lays  down  a  comprehensive 
framework facilitating the integration of the digital dimension into the Single Market. 
The first pillar of the Strategy tackles fragmentation in intra-EU trade by approaching 
all major obstacles to the development of cross-border e-commerce.  

For  the  achievement  of  a  genuine  digital  single  market,  the  harmonisation  of  certain 
aspects  concerning  contracts  for  sales  of  goods,  taking  as  a  base  a  high  level  of 
consumer protection, is necessary.  

E-commerce is the main driver for growth within the Digital Single Market. However 
its  growth  potential  is  far  from  being  fully  exploited.  In  order  to  strengthen  Union 
competiveness  and  to  boost  growth,  the  Union  needs  to  act  swiftly  and  encourage 
economic actors to unleash the full potential offered by the Digital Single Market. The 
full  potential  of  the  Digital  Single  Market  can  only  be  unleashed  if  all  market 
participants  enjoy  smooth  access  to  the  online  sales  of  goods  and  are  able  to 
confidently engage in e-commerce transactions. The contract law rules on the basis of 
which  market  participants  conclude  transactions  are  among  the  key  factors  shaping 
business’  decisions  whether  to  offer  goods  online  cross-border.  Those  rules  also 
influence consumers’ willingness to embrace and trust this type of purchase.  

(4)  While online sales of goods constitute the vast majority of distance sales in the Union, 
this  Directive  should  cover  all  distance  sales  channels,  including  phone  and  mail 

37

38

OJ C […], […], p. […]. 
COM(2015) 192 final.  

EN 

17 

   EN 

 
                                                 
 
 
(5) 

(6) 

orders, in order to avoid any unjustified distortions of competition and to create a level 
playing field for all businesses selling at a distance.  

The  Union  rules  applicable  to  the  online  and  other  distance  sales  of  goods  are  still 
fragmented  although  rules  on  pre-contractual  information  requirements,  the  right  of 
withdrawal  and  delivery  conditions  have  already  been  fully  harmonised.  Other  key 
contractual elements  such as the conformity criteria, the remedies  and modalities for 
their exercise for goods which do not conform to the contract are subject to minimum 
harmonisation  in  Directive  1999/44/EC  of  the  European  Parliament  and  of  the 
Council39.  Member  States  have  been  allowed  to  go  beyond  the  Union  standards  and 
introduce rules that ensure even higher level of consumer protection. Having done so, 
they  have  acted  on  different  elements  and  to  different  extents.  Thus,  national 
provisions  transposing  the  Union  legislation  on  consumer  contract  law  significantly 
diverge  today  on  essential  elements  of  a  sales  contract,  such  as  the  absence  or 
existence  of a hierarchy of remedies,  the period of the legal guarantee, the period of 
the reversal of the burden of proof, or the notification of the defect to the seller.  

Existing  disparities  may  adversely  affect  businesses  and  consumers.  Pursuant  to 
Regulation  (EC)  No  593/2008  of  the  European  Parliament  and  of  the  Council40, 
businesses  directing  activities  to  consumers  in  other  Member  States  need  to  take 
account  of  the  mandatory  consumer  contract  law  rules  of  the  consumer’s  country  of 
habitual  residence.  As  these  rules  differ  among  Member  States,  businesses  may  be 
faced  with  additional  costs.  Consequently  many  businesses  may  prefer  to  continue 
trading  domestically  or  only  export  to  one  or  two  Member  States.  That  choice  of 
minimising  exposure  to  costs  and  risks  associated  with  cross-border  e-commerce 
results  in  lost  opportunities  of  commercial  expansion  and  economies  of  scale.  Small 
and medium enterprises are in particular affected.  

(7)  While  consumers  enjoy  a  high  level  of  protection  when  they  purchase  online  or 
otherwise at a distance from abroad as a result of the application of Regulation (EC) 
No  593/2008,  fragmentation  also  impacts  negatively  on  consumers’  levels  of 
confidence  in  e-commerce.  While  several  factors  contribute  to  this  mistrust, 
uncertainty  about  key  contractual  rights  ranks  prominently  among  consumers’ 
concerns.  This  uncertainty  exists  independently  of  whether  or  not  consumers  are 
protected  by  the  mandatory  consumer  contract  law  provisions  of  their  own  Member 
State in the case where a seller directs his cross-border activities to them or whether or 
not  consumers  conclude  cross-border  contracts  with  a  seller  without  the  respective 
seller pursuing commercial activities in the consumer's Member State.  

(8) 

(9) 

39

40

In order to remedy those problems, businesses and consumers should be able to rely 
on a set of fully harmonised, targeted rules for the online and other distance sales of 
goods.  Uniform  rules  are  necessary  in  relation  to  several  essential  elements  of 
consumer contract law which under the current minimum harmonisation approach led 
to disparities and trade barriers across the Union.  

Fully harmonised consumer contract law rules will make it easier for traders to offer 
their products in other Member States. Businesses will have reduced costs as they will 
no longer need to take account of different consumer mandatory rules. They will enjoy 

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. 

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) OJ 
L177, 4.7.2008, p.6. 

EN 

18 

   EN 

                                                 
 
 
more legal certainty when selling at a distance to other Member States through a stable 
contract law environment.  

(10) 

Increased  competition  among  retailers  is  likely  to  result  in  wider  choices  at  more 
competitive  prices  being  offered  to  consumers.  Consumers  will  benefit  from  a  high 
level  of  consumer  protection  and  welfare  gains  through  targeted  fully  harmonised 
rules. This in turn would increase their trust in the cross-border commerce at a distance 
and  in  particular  online.  Consumers  will  more  confidently  buy  at  a  distance  cross-
border knowing they would enjoy the same rights across the Union.  

(11)  This Directive covers rules applicable to the online and other distance sales of goods 
only  in  relation  to  key  contract  elements  needed  to  overcome  contract-law  related 
barriers  in  the  Digital  Single  Market.  For  this  purpose,  rules  on  conformity 
requirements,  remedies  available  to  consumers  for  lack  of  conformity  of  the  goods 
with the contract and modalities for their exercise should be fully harmonised and the 
level  of  consumer  protection  as  compared  to  Directive  1999/44/EC,  should  be 
increased.  

(12)  Where a contract includes elements of both sales of goods and provision of services, 
the Directive should apply only to the part relating to the sale of goods in line with the 
approach taken by Directive 2011/83/EU.  

(13)  This  Directive  should  not  apply  to  goods  like  DVDs  and  CDs  incorporating  digital 
content in such a way that the goods function only as a carrier of the digital content. 
However,  this  Directive  should  apply  to  digital  content  integrated  in  goods  such  as 
household appliances or toys where the digital content is embedded in such a way that 
its functions are subordinate to the main functionalities of the goods and it operates as 
an integral part of the goods. 

(14)  This Directive should not affect contract laws of Member States in areas not regulated 
by  this  Directive.  Member  States  should  also  be  free  to  provide  more  detailed 
conditions in relation to aspects regulated in this Directive to the extent those are not 
fully harmonised by this Directive: this concerns limitation periods for exercising the 
consumers' rights, commercial guarantees, and the right of redress of the seller.  

(15)  Where referring to the same concepts, the rules of this Directive should be applied and 
interpreted  in  a  manner  consistent  with  the  rules  of  Directive  1999/44/EC  and 
Directive 2011/83/EU of the European Parliament and of the Council41 as interpreted 
by the case law of the Court of Justice of the European Union. 

(16)  For the purpose of legal clarity the Directive includes a definition of a sales contract. 
This  definition  maintains  that  contracts  where  goods  are  yet  to  be  produced  or 
manufactured,  including  under  consumer's  specifications,  are  also  included  in  the 
scope of the Directive.  

(17) 

In order to bring clarity and certainty for sellers and consumers the Directive should 
define  the  notion  of  a  contract.  This  definition  follows  the  common  traditions  of  all 
Member States by requiring an agreement intended to give rise to obligations or other 
legal effects for a contract to exist.  

(18) 

In order to balance the requirement of legal certainty with an appropriate flexibility of 
the  legal  rules,  any  reference  to  what  can  be  expected  of  or  by  a  person  in  this 

41

EN 

Directive  2011/83/EU  of  the  European  Parliament  and  of  the  Council  of  25  October  2011  on  consumer  rights,  amending  Council  Directive  93/13/EEC  and 

Directive  1999/44/EC  of  the  European  Parliament  and  of  the  Council  and  repealing  Council  Directive  85/577/EEC  and  Directive  97/7/EC  of  the  European 
Parliament and of the Council OJ L 304, 22.11.2011, p.64. 

19 

   EN 

                                                 
 
(19) 

Directive should be understood as a reference to what can reasonably be expected. The 
standard  of  reasonableness  should  be  objectively  ascertained,  having  regard  to  the 
nature and purpose of the contract, to the circumstances of the case and to the usages 
and practices of the parties involved. In particular, the reasonable time for completing 
a repair or replacement should be objectively ascertained, having regard to the nature 
of the goods and the lack of conformity.  

In order to provide clarity as to what a consumer can expect from the goods and what 
the  seller  would  be  liable  for  in  case  of  failure  to  deliver  what  is  expected,  it  is 
essential  to  fully  harmonise  rules  for  determining  the  conformity  with  the  contract. 
Applying  a  combination  of  subjective  and  objective  criteria  should  safeguard 
legitimate  interests  of  both  parties  to  a  sales  contract.  Conformity  with  the  contract 
should be assessed by taking into account not only requirements which have actually 
been  set  in  the  contract  -  including  in  pre-contractual  information  which  forms  an 
integral part of the contract - but also certain objective requirements which constitute 
the  standards  normally  expected  for  goods,  in  particular  in  terms  of  fitness  for  the 
purpose,  packaging,  installation  instructions  and  normal  qualities  and  performance 
capabilities.  

(20)  A  large  number  of  consumer  goods  are  intended  to  be  installed  before  they  can  be 
usefully  used  by  the  consumer.  Therefore  any  lack  of  conformity  resulting  from  an 
incorrect installation of the goods should be regarded as a lack of conformity with the 
contract where the installation was performed by the seller or under the seller's control, 
as  well  as  where  the  goods  were  installed  by  the  consumer  but  the  incorrect 
installation is due to incorrect installation instructions. 

(21)  Conformity  should cover  material defects as  well as  legal  defects. Third party  rights 
and other legal defects might effectively bar the consumer from enjoying the goods in 
accordance with the contract when the right's holder rightfully compels the consumer 
to  stop  infringing  those  rights.  Therefore  the  seller  should  ensure  that  the  goods  are 
free from any right of a third party, which precludes the consumer from enjoying the 
goods in accordance with the contract.  

(22)  While freedom of contract with regard to the criteria of conformity with the contract 
should  be  ensured,  in  order  to  avoid  circumvention  of  the  liability  for  lack  of 
conformity  and  ensure a  high  level  of  consumer  protection,  any  derogation  from  the 
mandatory  rules  on  criteria  of  conformity  and  incorrect  installation,  which  is 
detrimental  to  the  interests  of  the  consumer,  shall  be  valid  only  if  the  consumer  has 
been  expressly  informed  and  has  expressly  consented  to  it  when  concluding  the 
contract.  

(23)  Ensuring  longer  durability  of  consumer  goods  is  important  for  achieving  more 
sustainable  consumption  patterns  and  a  circular  economy.  Similarly,  keeping  non-
compliant products out of the Union market by strengthening market surveillance and 
providing the right incentives to economic operators is essential to increase trust in the 
single  market.  For  these  purposes,  product  specific  Union  legislation  is  the  most 
appropriate approach to introduce durability and other product related requirements in 
relation to specific types or groups of products, using for this purpose adapted criteria. 
This  Directive  should  therefore  be  complementary  to  the  objectives  followed  in  this 
Union  sector  specific  legislation.  In  so  far  as  specific  durability  information  is 
indicated in any pre-contractual statement which forms part of the sales contract, the 
consumer should be able to rely on them as a part of the criteria for conformity.  

EN 

20 

   EN 

(24)  Enhancing legal certainty for both consumers and sellers requires a clear indication of 
the time when the conformity of the goods to the contracts should be assessed. In order 
to  ensure  coherence  between  the  present  Directive  and  Directive  2011/83/EU  it  is 
appropriate  to  indicate  the  time  of  the  passing  of  risk  as  the  time  for  assessing  the 
conformity of the goods. However, in cases where the goods need to be installed, that 
relevant time should be adapted.   

(25)  The  optional  possibility  for  Member  States  to  maintain  notification  obligations  for 
consumers may lead them to easily lose well-substantiated claims for remedies in case 
of delayed or lack of notification, especially in a cross-border transaction where a law 
of  another  Member  State  applies  and  the  consumer  is  not  aware  of  this  notification 
obligation  resulting  from  the  law  of  another  Member  State.  Therefore  a  notification 
obligation  for  consumers  should  not  be  established.  Accordingly,  Member  States 
should be prevented from introducing or maintaining a requirement for the consumer 
to notify the seller the lack of conformity within a certain deadline.  

(26) 

In  order  to  allow  businesses  to  rely  on  a  single  set  of  rules  across  the  Union,  it  is 
necessary to fully harmonise the period of time during which the burden of proof for 
the  lack  of  conformity  is  reversed  in  favour  of  the  consumer.  Within  the  first  two 
years,  in  order  to  benefit  from  the  presumption  of  lack  of  conformity,  the  consumer 
should only establish that the good is not conforming, without needing to demonstrate 
that  the  lack  of  conformity  actually  existed  at  the  relevant  time  for  establishing 
conformity.  In  order  to  increase  legal  certainty  in  relation  to  available  remedies  for 
lack  of  conformity  with  the  contract  and  in  order  to  eliminate  one  of  the  major 
obstacles  inhibiting  the  Digital  Single  Market,  a  fully  harmonised  order  in  which 
remedies can be exercised should be provided for. In particular, the consumer should 
enjoy a choice between repair or replacement as a first remedy which should help in 
maintaining  the  contractual  relation  and  mutual  trust.  Moreover,  enabling  consumers 
to require repair should encourage a sustainable consumption and could contribute to a 
greater durability of products.  

(27)  The consumer's choice between repair and replacement should only be limited where 
the  option  chosen  would  be  disproportionate  compared  to  the  other  option  available, 
impossible  or  unlawful.  For  instance,  it  might  be  disproportionate  to  request  the 
replacement of goods because of a minor scratch where this replacement would create 
significant costs while, at the same time, the scratch could easily be repaired.  

(28)  Where  the  seller  has  not  remedied  the  lack  of  conformity  through  repair  or 
replacement  without  significant  inconvenience  for  the  consumer  and  within  a 
reasonable time, the consumer should be entitled to a price reduction or to terminate 
the  contract.  In  particular  any  repair  or  replacement  needs  to  be  successfully 
accomplished  within  this  reasonable  period.  What  is  a  reasonable  time  should  be 
objectively ascertained considering the nature of the goods and the lack of conformity. 
If upon the laps of the reasonable period, the seller has failed to successfully remedy 
the  lack  of  conformity,  the  consumer  should  not  be  obliged  to  accept  any  further 
attempts by the seller in relation to the same lack of conformity.  

(29)  Considering that the right to terminate the contract due to the lack of conformity is an 
important  remedy  applicable  where  repair  or  replacement  are  not  feasible  or  have 
failed,  the  consumer  should  also  enjoy  the  right  to  terminate  the  contract  in  cases 
where  the  lack  of  conformity  is  minor.  This  would  provide  a  strong  incentive  to 
remedy all cases of a lack of conformity at an early stage. In order to make the right to 
terminate effective for consumers, in situations where the consumer acquires multiple 

EN 

21 

   EN 

goods, some being an accessory to the main item which the consumer would not have 
acquired without the main item, and the lack of conformity impacts that main item, the 
consumer  should  have  the  right  to  terminate  the  contract  also  in  relation  to  the 
accessory elements, even if the latter are in conformity with the contract. 

(30)  Where  the  consumer  terminates  the  contract  due  to  the  lack  of  conformity,  this 
Directive prescribes only the main effects and modalities of the right of termination, in 
particular  the  obligation  for  the  parties  to  return  what  they  have  received.  Thus,  the 
seller  shall  be  obliged  to  refund  the  price  received  from  the  consumer  and  the 
consumer shall return the goods.  

(31) 

(32) 

(33) 

(34) 

In  order  to  ensure  the  effectiveness  of  the  right  to  terminate  for  consumers  while 
avoiding  the consumer's unjustified enrichment, the consumer's obligation to  pay for 
the decrease of the value of the goods should be limited to those situations where the 
decrease exceeds normal use. In any case the consumer should not be obliged to pay 
more than the price agreed for the goods. In situations where the return of the goods is 
impossible  due  to  their  destruction  or  loss,  the  consumer  should  pay  the  monetary 
value  of  the  goods  which  were  destroyed.  However,  the  consumer  should  not  be 
obliged to pay the monetary value where the destruction or loss is caused by the lack 
of conformity of the goods with the contract. 

In  order  to  increase  legal  certainty  for  sellers  and  overall  consumer  confidence  in 
cross-border purchases it is necessary to harmonise the period during which the seller 
is held liable for any lack of conformity which exists at the time when the consumer 
acquires  the  physical  possession  of  goods.  Considering  that  the  large  majority  of 
Member States have foreseen a two-year period when implementing Directive 1999/44 
and  in  practice  this  is  considered  by  market  participants  as  a  reasonable  period,  this 
period should be maintained. 

In order to ensure higher awareness of consumers and easier enforcement of the Union 
rules on consumer's rights in relation to non-conforming goods, this Directive should 
align the period of time during which the burden of proof is reversed in favour of the 
consumer  with  the  period  during  which  the  seller  is  held  liable  for  any  lack  of 
conformity.  

In  order  to  ensure  transparency,  certain  transparency  requirements  for  commercial 
guarantees  should  be  provided.  Moreover  in  order  to  improve  legal  certainty  and  to 
avoid  that  consumers  are  misled,  this  Directive  provides  that  where  commercial 
guarantee  conditions  contained  in  advertisements  or  pre-contractual  information  are 
more  favourable  to  the  consumer  than  those  included  in  the  guarantee  statement  the 
more advantageous conditions should prevail.  

(35)  Considering that the seller is liable towards the consumer for any lack of conformity of 
the goods resulting from an act or omission of the seller or a third party it is justified 
that the seller should be able to pursue remedies against the responsible person earlier 
in the chain of transactions. However, this Directive should not affect the principle of 
freedom of  contract  between  the seller  and other parties in the chain of transactions. 
The  details  for  exercising  that  right,  in  particular  against  whom  and  how  such 
remedies are to be pursued, should be provided by the Member States. 

(36)  Persons or organisations regarded under national law as having a legitimate interest in 
protecting  consumer  contractual  rights  should  be  afforded  the  right  to  initiate 
proceedings,  either  before  a  court  or  before  an  administrative  authority  which  is 
competent to decide upon complaints or to initiate appropriate legal proceedings. 

EN 

22 

   EN 

(37)  Nothing  in  this  Directive  should  prejudice  the  application  of  rules  of  private 
international  law,  in  particular  Regulation  (EC)  No  593/2008  Regulation  (EC)  No 
1215/2012 of the European Parliament and of the Council42. 

(38)  Directive 1999/44/EC should be amended to exclude distance sales contracts from its 

scope of application. 

(39)  Regulation  (EC)  No  2006/2004  of  the  European  Parliament  and  of  the  Council43 
should  be  amended  to  include  a  reference  to  this  Directive  in  its  Annex  so  as  to 
facilitate cross-border cooperation on enforcement of this Directive. 

(40)  Directive  2009/22/EC  of  the  European  Parliament  and  of  the  Council44  should  be 
amended to include a reference to this Directive in its Annex so as to ensure that the 
consumers’ collective interests laid down in this Directive are protected. 

(41) 

In  accordance  with  the Joint  Political  Declaration  of  28  September  2011  of  Member 
States  and  the  Commission  on  explanatory  documents45,  Member  States  have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  with  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified. 

(42)  Since  the  objectives  of  this  Directive,  namely  to  contribute  to  the  functioning  of  the 
internal  market  by  tackling  in  a  consistent  manner  contract  law-related  obstacles  for 
the  online  and  other  distance  sales  of  goods  cannot  be  sufficiently  achieved  by  the 
Member States but can rather be better achieved at Union level, the Union may adopt 
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty on European Union. In accordance with the principle of proportionality, as set 
out  in  that  Article,  this  Directive  does  not  go  beyond  what  is  necessary  in  order  to 
achieve those objectives. 

(43)  This Directive respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union  and 
specifically Article 16, 38 and 47 thereof.  

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Subject matter and scope 

This  Directive  lays  down  certain  requirements  concerning  distance  sales  contracts 
concluded between the seller and the consumer, in particular rules on conformity of 
goods,  remedies  in  case  of  non-conformity  and  the  modalities  for  the  exercise  of 
these remedies.  

Regulation (EC) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and 

commercial matters (recast) OJ L 351, 20.12.2012, p.1. 

Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for 

the enforcement of consumer protection laws OJ L 165, 18.06.2013, p.1. 

Directive  2009/22/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  on  injunctions  for  the  protection  of  consumers’  interests  OJ  L110, 

1.05.2009 , p.30. 

OJ C 369, 17.12.2011, p. 14. 

1. 

42

43

44

45

EN 

23 

   EN 

                                                 
 
 
 
 
 
2. 

3. 

4. 

This  Directive  shall  not  apply  to  distance  contracts  for  the  provision  of  services. 
However,  in  case  of  sales  contracts  providing  both  for  the  sale  of  goods  and  the 
provision  of  services,  this  Directive  shall  apply  to  the  part  relating  to  the  sale  of 
goods.  

This  Directive  shall  not  apply  to  any  durable  medium  incorporating  digital  content 
where  the  durable  medium  has  been  used  exclusively  as  a  carrier  for the  supply  of 
the digital content to the consumer. 

In  so  far  as  not  regulated  therein,  this  Directive  shall  not  affect  national  general 
contract  laws  such  as  rules  on  formation,  the  validity  or  effects  of  contracts, 
including the consequences of the termination of a contract. 

Article 2  

Definitions 

For the purpose of this Directive, the following definitions shall apply:  

(a) 

(b) 

(c) 

‘sales contract’ means any contract under which the seller transfers or undertakes to 
transfer the ownership of goods, including goods which are to be manufactured or 
produced,  to  the  consumer  and  the  consumer  pays  or  undertakes  to  pay  the  price 
thereof.  

‘consumer’ means any natural person who, in contracts covered by this Directive, is 
acting for purposes which are outside his trade, business, craft or profession;  

‘seller’  means  any  natural  person  or  any  legal  person,  irrespective  of  whether 
privately  or  publicly  owned,  who  is  acting,  including  through  any  other  person 
acting in his name or on his behalf, for purposes relating to his trade, business, craft 
or profession in relation to contracts covered by this Directive;  

(d) 

‘goods’ means any tangible movable items with the exception of 

(e) 

(f) 

(g) 

(a) 

items sold by way of execution or otherwise by authority of law;  

(b)  water,  gas  and  electricity  unless  they  are  put  up  for  sale  in  a  limited 

volume or a set quantity. 

‘distance  sales  contract’  means  any  sales  contract  concluded  under  an  organised 
distance  scheme  without  the  simultaneous  physical  presence  of  the  seller  and  the 
consumer, with the exclusive use of one or more means of distance communication, 
including  via  internet,  up  to  and  including  the  time  at  which  the  contract  is 
concluded; 

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

‘commercial  guarantee’  means  any  undertaking  by  the  seller  or  a  producer  (the 
guarantor)  to  the  consumer,  in  addition  to  his  legal  obligation  relating  to  the 
guarantee of conformity, to reimburse the price paid or to replace, repair or service 
goods in any way if they do not meet the specifications or any other requirements 
not  related  to  conformity  set  out  in  the  guarantee  statement  or  in  the  relevant 
advertising available at the time of, or before the conclusion of the contract; 

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(h) 

(i) 

(j) 

‘contract’  means  an  agreement  intended  to  give  rise  to  obligations  or  other  legal 
effects; 

‘repair’ means, in the event of lack of conformity, bringing goods into conformity 
with the contract;  

‘free  of  charge’  means  free  of  the  costs  necessarily  incurred  in  order  to  bring  the 
goods into conformity, particularly the cost of postage, labour and materials. 

Article 3  

Level of harmonisation 

Member States shall not maintain or introduce provisions diverging from those laid down in 
this  Directive  including  more  or  less  stringent  provisions  to  ensure  a  different  level  of 
consumer protection. 

Article 4 

Conformity with the contract  

1. 

The  seller  shall  ensure  that,  in  order  to  conform  with  the  contract,  the  goods  shall, 
where relevant: 

(a)  be  of  the  quantity,  quality  and  description  required  by  the  contract,  which 
includes that where the seller shows a sample or a model to the consumer, the 
goods  shall  possess  the  quality  of  and  correspond  to  the  description  of  this 
sample or model; 

(b)  be  fit  for  any  particular  purpose  for  which  the  consumer  requires  them  and 
which the consumer made known to the seller at the time of the conclusion of 
the contract and which the seller has accepted; and 

(c)  possess  the  qualities  and  performance  capabilities  indicated  in  any  pre-

contractual statement which forms an integral part of the contract. 

2. 

3. 

In order to conform with the contract, the goods must also meet the requirements of 
Articles 5, 6 and 7. 

Any agreement excluding, derogating from or varying the effects of Articles 5 and 6 
to the detriment of the consumer is valid only if, at the time of the conclusion of the 
contract, the consumer knew of the specific condition of the goods and the consumer 
has expressly accepted this specific condition when concluding the contract.  

Article 5  

Requirements for conformity of the goods  

The goods shall, where relevant: 

(a)  be  fit  for  all  the  purposes  for  which  goods  of  the  same  description  would 

ordinarily be used; 

(b)  be  delivered  along  with  such  accessories  including  packaging,  installation 

instructions or other instructions as the consumer may expect to receive; and  

(c)  possess  qualities  and  performance  capabilities  which  are  normal  in  goods  of 
the  same  type  and  which  the  consumer  may  expect  given  the  nature  of  the 
goods and taking into account any public statement made by or on behalf of the 

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seller or other persons in earlier links of the chain of transactions, including the 
producer, unless the seller shows that:  

(i) 

the  seller  was  not,  and  could  not  reasonably  have  been,  aware  of  the 
statement in question;  

(ii)  by  the  time  of  conclusion  of  the  contract  the  statement  had  been 

corrected; or 

(iii) 

the  decision  to  buy  the  goods  could  not  have  been  influenced  by  the 
statement. 

Article 6  

Incorrect installation  

Where the goods are incorrectly installed, any lack of conformity resulting from the incorrect 
installation is regarded as lack of conformity with the contract of the goods if: 

(a) 

(b) 

the goods were installed by the seller or under the seller’s responsibility; or 

the  goods,  intended  to  be  installed  by  the  consumer,  were  installed  by  the 
consumer  and  the  incorrect  installation  was  due  to  a  shortcoming  in  the 
installation instructions. 

Article 7  

Third party rights 

At the time relevant for establishing the conformity with the contract as determined by Article 
8,  the  goods  must  be  free  from  any  right  of  a  third  party,  including  based  on  intellectual 
property, so that the goods can be used in accordance with the contract. 

Relevant time for establishing conformity with the contract 

Article 8  

1. 

The seller shall be liable for any lack of conformity with the contract which exists at 
the time when:  

2. 

(a) 

(b) 

the  consumer  or  a  third  party  indicated  by  the  consumer  and  other  than  the 
carrier has acquired the physical possession of the goods; or 

the  goods  are  handed  over  to  the  carrier  chosen  by  the  consumer,  where  that 
carrier was not proposed by the seller or where the seller proposes no means of 
carriage. 

In  cases  where  the  goods  were  installed  by  the  seller  or  under  the  seller’s 
responsibility, the time  when the installation  is complete shall  be considered  as the 
time when the consumer has acquired the physical possession of the goods. In a case 
where  the  goods  were  intended  to  be  installed by  the  consumer,  the  time  when  the 
consumer  had  reasonable  time  for  the  installation  but  in  any  case  not  later  than  30 
days after the time indicated in paragraph 1 shall be considered as the time when the 
consumer has acquired the physical possession of the goods. 

3. 

Any lack of conformity with the contract which becomes apparent within two years 
from the time indicated in paragraphs 1 and 2 is presumed to have existed at the time 

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26 

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indicated  in  paragraphs  1  and  2  unless  this  is  incompatible  with  the  nature  of  the 
goods or with the nature of the lack of conformity.  

Article 9  

Consumer's remedies for the lack of conformity with the contract 

In the case of a lack of conformity with the contract, the consumer shall be entitled to 
have  the  goods  brought  into  conformity  by  the  seller,  free  of  charge,  by  repair  or 
replacement in accordance with Article 11. 

A repair or replacement shall be completed within a reasonable time and without any 
significant inconvenience to the consumer, taking account of the nature of the goods 
and the purpose for which the consumer required the goods. 

The consumer shall be entitled to a proportionate reduction of the price in accordance 
with Article 12 or to terminate the contract in accordance with Article 13 where:  

(a) 

(b) 

(c) 

(d) 

a repair or replacement are impossible or unlawful;  

the seller has not completed repair or replacement within a reasonable time;   

a repair or replacement would cause significant inconvenience to the consumer; 
or 

the  seller  has  declared,  or  it  is  equally  clear  from  the  circumstances,  that  the 
seller  will  not  bring  the  goods  in  conformity  with  the  contract  within  a 
reasonable time.  

The  consumer  shall  be  entitled  to  withhold  the  payment  of  any  outstanding  part  of 
the price, until the seller has brought the goods into conformity with the contract. 

The consumer shall not be entitled to a remedy to the extent that the consumer has 
contributed to the lack of conformity with the contract or its effects.  

Article 10 

Replacement of goods 

Where the seller remedies the lack of conformity with the contract by replacement, 
the seller shall take back the replaced goods at the seller's expense unless the parties 
have agreed otherwise after the lack of conformity with the contract has been brought 
to the seller's attention by the consumer.  

Where the consumer had installed the goods in a manner consistent with their nature 
and  purpose,  before  the  lack  of  conformity  with  the  contract  became  apparent,  the 
obligation  to  take  back  the  replaced  goods  shall  include  the  removal  of  the  non-
conforming  goods  and  the  installation  of  replacement  goods,  or  bearing  the  costs 
thereof.  

The consumer shall not be liable to pay for any use made of the replaced goods in the 
period prior to the replacement.  

Article 11 

Consumer's choice between repair and replacement 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

3. 

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27 

   EN 

The consumer may choose between repair and replacement unless the option chosen would be 
impossible, unlawful or, compared to the other option, would impose costs on the seller that 
would be disproportionate, taking into account all circumstances, including: 

(a) 

the  value  the  goods  would  have  if  there  were  no  lack  of  conformity  with  the 
contract; 

(b) 

the significance of the lack of conformity with the contract; 

(c)  whether  the  alternative  remedy  could  be  completed  without  significant 

inconvenience to the consumer. 

Article 12  

Price reduction  

The reduction of price shall be proportionate to the decrease in the value of the goods which 
were received by the consumer compared to the value the goods would have if in conformity 
with the contract 

1. 

2. 

3. 

Article 13  

The consumer's right to terminate the contract  

The consumer shall exercise the right to terminate the contract by notice to the seller 
given by any means. 

Where  the  lack  of  conformity  with  the  contract  relates  to  only  some  of  the  goods 
delivered  under  the  contract  and  there  is  a  ground  for  termination  of  a  contract 
pursuant  to  Article  9,  the  consumer  may  terminate  the  contract  only  in  relation  to 
those goods and any other goods, which the consumer acquired as an accessory to the 
non-conforming goods.  

Where  the  consumer  terminates  a  contract  as  a  whole  or  in  relation  to  some  of  the 
goods delivered under the contract in accordance with paragraph 2:  

(a) 

(b) 

the seller shall reimburse to the consumer the price paid without undue delay 
and in any event not later than 14 days from receipt of the notice and shall bear 
the cost of the reimbursement; 

the consumer shall return, at the seller's expense, to the seller the goods without 
undue delay and in any event not later than 14 days from sending the notice of 
termination; 

(c)  where  the  goods  cannot  be  returned  because  of  destruction  or  loss,  the 
consumer shall pay to the seller the monetary value which the non-conforming 
goods would have had at the date when the return was to be made, if they had 
been kept by the consumer without destruction or loss until that date, unless the 
destruction or loss has been caused by a lack of conformity of the goods with 
the contract; and 

(d) 

the  consumer  shall  pay  for  a  decrease  in  the  value  of  the  goods  only  to  the 
extent that the decrease in value exceeds depreciation through regular use. The 
payment for decrease in value shall not exceed the price paid for the goods.  

EN 

Article 14  

Time limits  

28 

   EN 

The consumer shall be entitled to a remedy for the lack of conformity with the contract of the 
goods where the lack of conformity becomes apparent within two years as from the relevant 
time for establishing conformity. If, under national legislation, the rights laid down in Article 
9 are subject to a limitation period, that period shall not be shorter than two years from the 
relevant time for establishing conformity with the contract.  

Article 15  

Commercial guarantees  

1. 

Any  commercial  guarantee  shall  be  binding  on  the  guarantor  under  the  conditions 
laid down in: 

(a)  pre-contractual  information  provided  by  the  seller,  including  any  pre-

contractual statement which forms an integral part of the contract; 

(b) 

(c) 

advertising available at the time of or before the conclusion of the contract; and  

the guarantee statement.  

If the guarantee statement is less advantageous to the consumer than  the conditions 
laid  down  in  pre-contractual  information  provided  by  the  seller  or  advertising,  the 
commercial  guarantee  shall  be  binding  under  the  conditions  laid  down  in  the  pre-
contractual information or advertising relating to the commercial guarantee. 

2. 

The guarantee statement shall be made available on a durable medium and drafted in 
plain, intelligible language. It shall include the following: 

(a) 

(b) 

a  clear  statement  of  the  legal  rights  of  the  consumer  as  provided  for  in  this 
Directive  and  a  clear  statement  that  those  rights  are  not  affected  by  the 
commercial guarantee; and 

the  terms  of  the  commercial  guarantee  that  go  beyond  the  legal  rights  of  the 
consumer, information about the duration, transferability, territorial scope and 
existence  of  any  charges  which  the  consumer  might  incur  in  order  to  benefit 
from the commercial guarantee, the name and address of the guarantor and, if 
different from the guarantor, the person against whom any claim is to be made 
and the procedure by which the claim is to be made. 

3. 

4. 

Non-compliance  with  paragraph  2  shall  not  affect  the  binding  nature  of  the 
commercial guarantee for the guarantor. 

The Member States may lay down additional rules on commercial guarantees insofar 
as those rules do not reduce the protection set out in this Article. 

Article 16  

Right of redress  

Where the seller is liable to the consumer because of a lack of conformity with the contract 
resulting from an act or omission by a person in earlier links of the chain of transactions, the 
seller shall be entitled to pursue remedies against the person or persons liable in the chain of 
transactions.  The  person  against  whom  the  seller  may  pursue  remedies  and  the  relevant 
actions and conditions of exercise, shall be determined by national law. 

EN 

Article 17 

Enforcement 

29 

   EN 

1.   Member  States  shall  ensure  that  adequate  and  effective  means  exist  to  ensure 

compliance with this Directive.  

2.  

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

(a) public bodies or their representatives;  

(b) consumer organisations having a legitimate interest in protecting consumers;  

(c) professional organisations having a legitimate interest in acting.  

Article 18  

Mandatory nature  

Any contractual agreement which, to the detriment of the consumer, excludes the application 
of  national  measures  transposing  this  Directive,  derogates  from  them  or  varies  their  effect 
before the lack of conformity with the contract of the goods is brought to the seller's attention 
by the consumer shall not be binding on the consumer unless parties to the contract exclude, 
derogate from or vary the effects of the requirements of Articles 5 and 6 in accordance with 
Article 4 (3).  

Article 19 

Amendments to Directive 1999/44/EC, Regulation (EC) No 2006/2004 and Directive 
2009/22/EC  

1. 

Article 1 of Directive 1999/44/EC is amended as follows: 

(a) paragraph 1 is replaced by the following: 

"1.  The  purpose  of  this  Directive  is  the  approximation  of  the  laws,  regulations  and 
administrative provisions of the Member States on certain aspects of contracts for the sale of 
consumer goods and associated guarantees, which are not distance sales contracts, in order 
to  ensure  a  uniform  minimum  level  of  consumer  protection  in  the  context  of  the  internal 
market."  

(b) paragraph 2 is amended as follows:  

(i) point (f) is replaced by the following:  

"(f)  repair:  shall  mean,  in  the  event  of  lack  of  conformity,  bringing  consumer  goods  into 
conformity with the contract of sale;" 

(ii) the following point is added: 

''g)‘distance sales contract’ means any sales contract concluded under an organised distance 
scheme without the simultaneous physical presence of the seller and the consumer, with the 
exclusive use of one or more means of distance communication, including via internet, up to 
and including the time at which the contract is concluded".  

2. 

In the Annex to Regulation (EC) No 2006/2004, the following point is added: 

"22. Directive (EU) N/XXX of the European Parliament and of the Council of XX/XX/201X on 
certain aspects concerning contracts for the online and other distance sales of goods (OJ…)" 

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3. 

In Annex I to Directive 2009/22/EC the following point is added: 

"16. Directive (EU) N/XXX of the European Parliament and of the Council of XX/XX/201X on 
certain aspects concerning contracts for the online and other distance sales of goods (OJ…)" 

Article 20  

Transposition 

1. 

2. 

3. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  [date  of  two  years  after  the 
entry into force] at the latest. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

Member  States  shall  communicate  to  the  Commission  the  text  of  the  provisions  of 
national law which they adopt in the field covered by this Directive. 

Article 21  

Entering into force 

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

Article 22 

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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