COMMISSION STAFF WORKING DOCUMENT Evaluation of the Consumer Rights Directive Accompanying the document Report from the Commission to the European Parliament and the Council on the application of 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 1991/44/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
Date: 2017-05-23
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: application of EU law, commercial contract, consumer policy, consumer protection, contract, data protection, digital technology, electronic commerce, single market, supply

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 23.5.2017  SWD(2017) 169 final   COMMISSION STAFF WORKING DOCUMENT Evaluation of the Consumer Rights Directive  Accompanying the document Report from the Commission to the European Parliament and the Council on the application of 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 1991/44/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 {COM(2017) 259 final} {SWD(2017) 170 final}  
 
 
CRD Report - SWD 

Contents 

Acronyms and abbreviations ...................................................................................................... 4 

1. Introduction ............................................................................................................................ 5 

2. Background to the initiative ................................................................................................... 6 

2.1 The Directive and its main provisions .............................................................................. 6 

2.2 Original objectives of the Directive .................................................................................. 7 

2.3 How the objectives of the Directive were to be achieved ................................................. 9 

3. Evaluation Questions ............................................................................................................ 10 

4. Method ................................................................................................................................. 11 

4.1. External study ................................................................................................................ 11 

4.2. Online public consultation ............................................................................................. 12 

4.3. Consumer Summit dedicated to Fitness Check (17 October 2016) ............................... 13 

4.4. Stakeholder expert group ............................................................................................... 13 

4.5. Meetings with DG Justice and Consumers networks .................................................... 13 

4.6 Sweep activities and enforcement  actions by CPC network to  ensure compliance with 
CRD ...................................................................................................................................... 14 

4.7. Other consultation and evidence sources ....................................................................... 14 

4.8. Limitation – robustness of the findings ......................................................................... 15 

5. Implementation state of play ................................................................................................ 15 

5.1. Transposition and Implementation ................................................................................ 15 

5.2. Full harmonisation and regulatory choices .................................................................... 16 

5.3. Follow-up to transposition ............................................................................................. 17 

6. Answers to the evaluation questions .................................................................................... 18 

6.1. Effectiveness .................................................................................................................. 18 

6.1.1. Awareness ................................................................................................................ 23 

6.1.2. Problems with interpretation ................................................................................... 25 

6.1.3. Compliance by traders ............................................................................................. 27 

6.1.4. Administrative and judicial enforcement ................................................................ 32 

6.1.5. Penalties ................................................................................................................... 33 

6.2. Efficiency ....................................................................................................................... 34 

6.2.1. Costs and benefits – general analysis ...................................................................... 34 

6.2.2 Impacts on traders ..................................................................................................... 35 

6.2.3. Impact for SMEs ...................................................................................................... 41 

6.2.4. Impact for national authorities ................................................................................. 42 

2

 
 
 
 
6.2.5. Impact for sectors .................................................................................................... 42 

6.3. Coherence ...................................................................................................................... 42 

6.3.1. Coherence between the CRD and other EU legislation – general analysis ............. 42 

6.3.2. Interplay with consumer and marketing legislation ................................................ 44 

6.3.3. Interplay with other horizontal legislation ............................................................... 46 

6.3.4. Interplay with sector-specific legislation ................................................................. 47 

6.3.5. Interplay with new proposals ................................................................................... 48 

6.4. Relevance ....................................................................................................................... 48 

6.4.1. The objectives of the CRD ...................................................................................... 49 

6.4.2. Stakeholders’ views: Relevance of the objectives of the CRD ............................... 49 

6.4.3. Should the scope of the Directive be amended in relation to digital content? ........ 50 

6.4.4. Relevance of specific CRD provisions .................................................................... 53 

6.4.5. Relevance of specific information requirements and possible need for a model form
 ........................................................................................................................................... 53 

6.4.6. Relevance of specific information requirements for online marketplaces .............. 56 

6.5. European added value .................................................................................................... 53 

7. CONCLUSIONS .................................................................................................................. 56 

Annex 1 - Procedural information concerning the process to prepare the evaluation ............. 60 

Annex 2 - Synopsis of stakeholder consultations ..................................................................... 63 

1. Consultation on the roadmap ............................................................................................ 64 

2. Targeted stakeholder consultations (July-November 2016) ............................................. 64 

3. Meetings of Fitness Check Stakeholder Group ................................................................ 67 

4. Online Public Consultation ............................................................................................... 68 

6. Meetings with existing stakeholder groups of DG JUST networks .................................. 71 

7. Consumer summit – 17 October 2016 .............................................................................. 74 

8. European Parliament's internal market and consumer protection committee (IMCO) and 
legal affairs committee (JURI) .............................................................................................. 75 

9. European Economic and Social Committee's (EESC) consultation ................................. 76 

10. Overall messages from the consultations ........................................................................ 77 

Annex 3 - Methods and analytical models used in preparing the evaluation ........................... 78 

3

 
 
 
 
 
 
 
Acronyms and abbreviations 

B2B 

B2C 

CRD 

CPC 

DCDP 

Business-to-Business 

Business-to-Consumer 

Consumer Rights Directive 2011/83/EU 

Consumer Protection Cooperation  

 Proposal  for  a  Directive  on  contracts  for  the  supply  of  digital  content 
COM/2015/0634 final - 2015/0287 (COD) 

DG 

Directorate General 

DG JUST 

Directorate General Justice and Consumers 

EC 

ECC 

European Commission 

European Consumer Centre 

EESC   

European Economic and Social Committee 

EU 

ICT 

ID 

PID 

European Union 

Information and Communication Technology 

Injunctions Directive 2009/22/EC 

Price Indication Directive 98/6/EC 

SMEs   

Small and Medium-sized Enterprises 

SWD 

T&Cs   

UCPD  

UCTD  

Staff working document 

Terms and Conditions (standard contract terms) 

Unfair Commercial Practices Directive 2005/29/EC 

Unfair Contract Terms Directive 93/13/EEC 

4

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1. Introduction  

Pursuant to Article 30 of Directive 2011/83/EU of 25 October 2011 on consumer rights1 the 
Commission  is  required  to  report  on  the  application  of  the  Directive  to  the  European 
Parliament  and  the  Council.  The  report  shall  include  in  particular  an  evaluation  of  the 
provisions of this Directive regarding digital content, including the right of withdrawal. The 
report shall be accompanied, where necessary, by legislative proposals to adapt the Directive 
to developments in the field of consumer rights. 

To  this  end,  the  Commission  has  carried  out  an  evaluation of  the  Directive  with  the  aim  of 
establishing whether, and to what extent, the objectives of the Directive have been achieved, 
with  regard,  inter  alia,  to  the  functioning  of  the  internal  market.  The  evaluation  sought  to 
assess the overall impact of the Directive by assessing its effectiveness, efficiency, coherence, 
relevance and EU added value, having particular regard to the rules on digital content2 as well 
as on the pre-contractual information and formal requirements (Articles 5(1), 6(1), 7 and 8), 
and the fully harmonised right of withdrawal (Articles 9-16).  

Member  States  had  to  transpose  the  CRD  by  13  December  2013  and  had  to  apply  their 
national  transposition  measures  from  13  June  2014.  This  evaluation  has  therefore  been 
undertaken based on less than three years of actual application of the CRD provisions in the 
Member States. Therefore, it is too soon to see the full impact of the Directive in relation to 
its overall objectives, which – according to its Article 1 – is, "through the achievement of a 
high  level  of  consumer  protection,  to  contribute  to  the  proper  functioning  of  the  internal 
market". As further explained in Recital 4 of the CRD, the harmonisation of certain aspects of 
consumer distance and off-premises contracts is considered necessary for the "promotion of a 
real  consumer  internal  market  striking  the  right  balance  between  a  high  level  of  consumer 
protection and the competitiveness of enterprises".  

Due  to  the  limited  time  of  practical  application,  the  evaluation  has  been  mainly  focused  on 
assessing  how  far  the  Member  States,  businesses  and  consumers  are  implementing  and 
making use of the provisions of the Directive and whether the practical uptake is in line with 
the objectives pursued.  

The evaluation focuses on the effects of the new or modified rules introduced and takes into 
account  the  positive  and  negative  impacts  of  the  Directive  on  businesses  (e.g.  easier  cross-
border  market  access,  reduced  compliance  costs,  possible  additional  burden)  and  on 
consumers (e.g. greater choice, reduced detriment, possible lower level of protection). 

The analysis focussed on the fully harmonised provisions; it also summarises to which extent 
the Member States have made use of regulatory choices allowed by the Directive.  

The  evaluation  covered  the  period  since  the  beginning  of  the  application  of  the  national 
transposition measures (13 June 2014) and covered all EU Member States. 

1Directive 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 
2 See Articles 5(1)(g) and (h), 6(1)(r) and (s), 14(4)(b) and 16(m) of the CRD. 

5

 
 
 
 
                                                 
This SWD accompanies the report on the application of the CRD that the Commission needs 
to submit to the European Parliament and the Council pursuant to Article 30 of the Directive 
which is based on the evaluation's main findings.  

2. Background to the initiative  

2.1. The Directive and its main provisions 

The  Directive  replaced  two  previous  Directives  (i.e.  Directive  85/577/EEC  on  contracts 
negotiated away from business premises – "off-premises contracts" – and Directive 97/7/EC 
on contracts concluded through the means of distance communication – "distance contracts"3) 
and  amended  certain  provisions  of  Directive  93/13/EEC  on  unfair  terms  in  consumer 
contracts  and  Directive  1999/44/EC  on  certain  aspects  of  the  sale  of  consumer  goods  and 
associated guarantees. 

The Directive is a horizontal piece of legislation which regulates the main aspects of distance, 
off-premises  and  on-premises  contracts  between  consumers  and  businesses.  It  covers 
contracts  for  the  purchase  of  goods,  services,  digital  content  not  supplied  on  a  tangible 
medium  and  supply  of  public  utilities.  Nevertheless,  according  to  its  Article  3(3),  some 
contracts  are  excluded  from  the  scope  of  the  Directive  (e.g.  contracts  concerning  social 
services,  healthcare,  gambling,  immovable  property,  financial  services,  package  travel, 
timeshare,  supply  of  foodstuffs  or  –  except  for  some  specific  provisions  -  passenger 
transport). 

Whilst  the  former  Directives  of  1985  and  1997  concerning,  respectively,  off-premises  and 
distance  contracts,  only  provided  for  a  minimum  level  of  harmonisation  of  consumer 
protection rules, the Consumer Rights Directive is a full harmonisation Directive (Article 4). 
In particular, it provides a single set of core rules for distance and off-premises contracts. It 
aimed  at  strengthening  consumer  protection,  for  example  by  introducing  stricter  pre-
contractual information requirements and a uniform right of withdrawal period. It sets formal 
requirements  for  distance  and  off-premises  contracts,  clear  rules  on  delivery  of  goods  and 
passing of risk and sets limitations to the application of fees for the use of means of payments, 
communication by telephone between consumers and traders and additional payments. At the 
same time, the Directive aimed to reduce costs for cross-border traders, for whom the uniform 
rules across the EU should lead to lower compliance costs.  

3  Article  2(7)  CRD  reads:  "‘distance  contract’  means  any  contract  concluded  between  the  trader  and  the 
consumer  under  an  organised  distance  sales  or  service-provision  scheme  without  the  simultaneous  physical 
presence of the trader and the consumer, with the exclusive use of one or more means of distance communication 
up  to  and  including  the  time  at  which  the  contract  is  concluded";  while  Articles  2(8)  and  (9)  read:  (8)  "‘off-
premises contract’ means any contract between the trader and the consumer: (a) concluded in the simultaneous 
physical presence of the trader and the consumer, in a place which is not the business premises of the trader; (b) 
for which an offer was made by the consumer in the same circumstances as referred to in point (a); (c) concluded 
on the business premises of the trader or through any means of distance communication immediately after the 
consumer was personally and individually addressed in a place which is not the business premises of the trader 
in  the  simultaneous  physical  presence  of  the  trader  and  the  consumer;  or  (d)  concluded  during  an  excursion 
organised by the trader with the aim or effect of promoting and selling goods or services to the consumer; (9) 
‘business  premises’  means:  (a)  any  immovable  retail  premises  where  the  trader  carries  out  his  activity  on  a 
permanent basis; or (b) any movable retail premises where the trader carries out his activity on a usual basis". 

6

 
 
 
 
                                                 
 
As  mentioned,  the  Directive  generally  has  a  full  harmonisation  character,  meaning  that 
national  provisions  transposing  it  may  not  go  below  or  beyond  its  provisions  (Article  4). 
However,  the  Directive  allows  Member  States  to  impose  additional  pre-contractual 
information  requirements  for  on-premises  contracts  (Article  5(4)).  In  addition,  it  gives 
Members  States  the  possibility  to  make  use  of  certain  regulatory  choices  under  their  own 
national  law  as  analysed  under  section  5.2.  Member  States  are  held  to  report  about  the 
regulatory choices they have made  and the Commission has made the information available 
on its website in accordance with Article 29 CRD4. 

Compared  with 
framework  under 
Directive 97/7/EC  and  Directive  85/577/EEC,  the  new  provisions  of  the  Consumer  Rights 
Directive relate to: 

legal  minimum  harmonisation 

the  previous 

 

 

 

 

 further  harmonisation  of  pre-contractual  information  requirements  for  on-premises  
(Article 5(1)) and full harmonisation of those applicable to  distance and off-premises 
contracts (Article 6(1)); 

inclusion of digital content in the scope with  specific provisions related to it, such as 
right  of  withdrawal 
information  on 
(Articles 5(1)(g) and (h); 6(1)(r) and (s); 9(2)(c); 14(4)(b); and 16(m)); 

interoperability  and 

functionality  and 

formal requirements for distance and off-premises contracts, e.g. 'button provision'  for 
orders with an obligation to pay (Articles 7 and 8); 

fully harmonised period of 14 days for the right of withdrawal from distance and off-
premises  contracts  -  albeit  with  some  exceptions  (Article 16)  -  and  clearer  refund 
rights (Articles 9-15); 

  new rules on the delivery and passing of risk (Articles 18 and 20); 

 

 ‘basic rate’ requirement for consumer phone-calls to the trader in relation to contracts 
already concluded (Article 21); 

  ban  on  unjustified  charges  for  payment  means  (Article  19)  and  pre-ticked  boxes 

(Article 22).  

  exempting  the  consumer  from  the  obligation  to  pay  for  any  unsolicited  supply  of 

products or provision of services ('inertia selling', Article 27); 

 

introduction  of  an  EU-wide  model  withdrawal  form.(Articles  6(1)(h)  and  11,  Annex 
I(B)). 

2.2. Original objectives of the Directive 

The overall objective of the Directive is to achieve a high level of consumer protection across 
the  EU  and  to  contribute  to  the  proper  functioning  of  the  internal  market  by  approximating 
certain aspects of Member States' laws, regulations and administrative provisions concerning 
contracts concluded between consumers and traders.  

4 http://ec.europa.eu/justice/consumer-marketing/files/overview_regulatory_choices.pdf  

7

 
 
 
 
                                                 
The  Intervention  logic  shows  the  expected  sequence  of  general  and  specific  objectives,  inputs,  outputs  and  the  intended  results  and  impacts  of  the 
Directive 

 
 
The  Impact  Assessment  of  the  CRD  proposal  noted  that  the  Directive should  meet  the  dual 
objective  of  making  it  easier  for  traders  to  sell  cross-border  and  enhancing  consumer 
confidence in cross-border shopping.5  

Before the adoption of the Directive, surveys showed that, for most traders, compliance costs 
constituted  an  important  barrier  to  cross-border  trade,  which  reduced  their  incentive  to  sell 
cross-border, particularly to consumers in small Member States. The majority of respondents 
to  the  Green  Paper6  consultation  carried  out  in  2007  called  for  the  adoption  of  a  horizontal 
legislative  instrument  applicable  to  domestic  and  cross-border  transactions,  based  on  full 
targeted harmonisation.  

The  Directive  was  expected  to  strongly  contribute  to  the  better  functioning  of  the  internal 
market  through  harmonisation  and  streamlining.  As  indicated  in  the  Impact  Assessment, 
simplification  of  the  regulatory  framework  reduces  obstacles  for  traders  to  conclude 
cross-border contracts, increasing at the same time consumer confidence in cross-border and 
domestic  shopping,  particularly  through  lower  prices  and  better  choice  for  consumers.  The 
Directive  was  also  expected  to  strongly  improve  the  quality  of  national  legislation  and  the 
level  of  consumer  protection,  particularly  in  distance  and  off-premises  transactions,  as  it 
removes inconsistencies and loopholes by setting common rules and definitions. 

2.3. How the objectives of the Directive were to be achieved 

The  objectives  of  the  Consumer  Rights  Directive  were  to  be  achieved  by  a  comprehensive 
legislative instrument, which fully harmonises the main aspects of off-premises and distance 
contracts,  and  regulates  some  aspects  of  on-premises  contracts.  In  particular,  the  Directive 
sets a fully harmonised list of pre-contractual information requirements for off-premises and 
distance  contracts  and  harmonises  the  consumers'  right  of  withdrawal,  including  its  length, 
modalities for its exercise, its consequences and exceptions; it also stipulates clear rules  for 
delivery  of  goods  and  it  sets  out  the  moment  of  passing  of  risk  from  the  trader  to  the 
consumer for loss of or damage to the goods. 

The Directive also for the first time laid down specific rules at the EU level on digital content 
for example as regards pre-contractual information and the right of withdrawal. 

Consequently,  it  was  expected  that  the  Directive  would  remove  some  of  the  barriers  to  the 
Single  Market  and  facilitate  cross-border  transactions  by  ensuring  a  harmonised  contractual 
regime for businesses and the same rights for consumers across the EU. This should result in 
traders being encouraged to develop their business cross-border and consumers being able to 
benefit from extended choice and potentially lower prices. 

Together  with  the  Price  Indication  Directive  98/6/EC  (PID)7  and  the  Unfair  Commercial 
Practices  Directive  2005/29/EC  (UCPD),8 
the  Consumer  Rights  Directive  sets  a 

5  SEC(2008)  2544  Commission  Staff  Working  Document  accompanying  the  proposal  for  a  directive  on 
consumer rights Impact Assessment Report of 8.10.2008 
6 Green Paper on the Review of the Consumer Acquis, COM(2006) 744 final of 8 February 2007 
7 Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection 
in the indication of the prices of products offered to consumers 
8  Directive  2005/29/EC  of  the  European  Parliament  and  of  the  Council  of  11  May  2005  concerning  unfair 
business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, 

 
 
                                                 
 
comprehensive  framework  for  ensuring  transparency  in  business-to-consumers  relations, 
regarding  the  information  to  be  given  to  the  consumer  at  the  pre-contractual  stage  of  a 
transaction. Immediately before the conclusion of the contract, the Consumer Rights Directive 
protects  the  consumer  by  laying  down  formal  requirements  for  distance  and  off-premises 
contracts. 

At the stage of contract performance, it provides the consumer with certain additional rights, 
such  as  the  right  of  withdrawal  for  distance  and  off-premises  contracts  and  clear  rules  for 
delivery  of  goods  and  passing  of  risk.  At  this  stage,  the  Directive  interacts  with  the  Unfair 
Commercial  Practices  Directive,  the  Consumer  Sales  and  Guarantees  Directive9  and  the 
Unfair Contract Terms Directive.10 

The following diagram illustrates how the Consumer Rights Directive interacts with the other 
consumer  and  marketing  law  Directives  currently  subject  to  the  wider  Fitness  check 
evaluation. 

3. Evaluation Questions  

To analyse the effectiveness, efficiency, coherence, relevance and EU added value of the 
Consumer Rights Directive, the evaluation should provide answers to a series of evaluation 
questions relating to each of these five key evaluation criteria. The evaluation questions are 
listed in section 6 under each of the criteria. 

Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation 
(EC) No 2006/2004 of the European Parliament and of the Council 
9 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 
10 Council Directive 93/ 13/EEC of 5 April 1993 on unfair terms in consumer contracts 

10 

 
 
 
 
                                                                                                                                                         
4. Method  

The  findings  and  conclusions  of  the  evaluation  are  based  on  an  external  study  on  the 
application  of  the  CRD,  a  report  of  the  EESC  on  the  CRD11,  a  stakeholder  consultation, 
submissions  by  stakeholders  (also  within  the  context  of  the  REFIT  stakeholder  platform12), 
enforcement actions by national authorities, and information available through the conformity 
check of national transposition measures. The different evaluation activities are described in 
the  following  subsections  and  in  the  Annexes  to  this  SWD.  As  the  CRD  evaluation  ran  in 
parallel to the  general Fitness Check of consumer and  marketing law, and the results of the 
CRD evaluation feed into the Final Fitness Check report, several consultation activities of the 
Fitness Check (such as the Stakeholder consultation group13, the Consumer Summit14, online 
public consultation) were used to gather views and data also for the CRD evaluation. 

4.1. External study 

Between  May  2016  and  February  2017,  the  Commission's  external  contractor  carried  out  a 
dedicated study on the application of the CRD in order to support this evaluation.  

The study's aim was to establish the degree to which the objectives of the Directive have been 
achieved – i.e. a high level of consumer protection and contribution to the proper functioning 
of  the  internal  market  by  approximating  certain  aspects  of  the  laws,  regulations  and 
administrative provisions concerning contracts concluded between consumers and traders. 

The study was performed by a consortium led by Risk & Policy Analysts Ltd (RPA) which 
was  chosen  based  on  a  framework  contract  of  (former)  Directorate  General  Health  and 
Consumers (former DG SANCO, currently DG SANTE) for the provision of evaluation and 
impact  assessment  in  the  area  of  Consumer  Policy.  It  was  based  on  literature  review 
(including  documents  on  the  legal  implementation  of  the  Directive  in  different  Member 
States) and stakeholder consultation (by means of an online survey and interviews – with 524 
complete  replies  to  the  survey  and  64  interviews  in  total;  for  more  information  please  see 
Annex 2). In addition, results from the Commission's online public consultation carried out in 
the  framework  of  the  REFIT  Fitness  Check15,  the  2016  Consumer  summit16,  the  European 
Economic  and  Social  Committee  information  report  on  the  CRD,  the  results  of  the 
behavioural  experiment  and  mystery  shopping  exercises  to  support  the  Consumer  market 

11 EESC Information report: Consumer Rights Directive (evaluation) http://www.eesc.europa.eu/?i=portal.en.int-
opinions.39555 
12  The  REFIT  Platform  brings  together  the  Commission,  national  authorities  and  other  stakeholders  in  regular 
meetings  to  improve  existing  EU  legislation,  https://ec.europa.eu/info/law/law-making-process/overview-law-
making-process/evaluating-and-improving-existing-laws/reducing-burdens-and-simplifying-law/refit-
platform_en  
13 
and 
See 
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3423  
14  More  information  on  the  2016  Consumer  summit  is  available  at  http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=34204, and see point 7 in Annex 2 of this document. 
15Public 
the 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=31689  
16 European Consumer Summit 2016 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=34204  

of  Commission 

and  marketing 

Fitness  Check 

the  Register 

in  Annex 

consultation 

consumer 

groups: 

expert 

point 

law 

EU 

for 

of 

3 

2 

11 

 
 
 
                                                 
study for the Fitness Check17 as well as of the 2015 CRD sweep of the CPC network18 were 
taken into account.  

Annexes  1-3  provide  additional  information  on  the  external  study,  its  methodology  and 
consultations. The final report of the study is published together with this SWD19. Over the 
course of the project the evaluation team encountered many difficulties in carrying out tasks 
in  order  to  answer  the  evaluation  question.  The  contractor  for  the  CRD  study  has  not  been 
able to gather quantitative estimates of costs and benefits of the implementation of the CRD, 
except from anecdotal examples. In trying to overcome some difficulties in gathering data, the 
final report had to be revised and thus delayed compared to the original project timeline. 

4.2. Online public consultation 

The  Commission  organised  an  online  public  consultation  to  support  its  Fitness  Check  on 
consumer and marketing law and the CRD evaluation. The consultation ran from 12 May to 
12  September  2016  in  all  EU  languages.  In  total,  43620  replies  were  received  via  the  EU 
survey IT tool. The largest respondent category was companies, followed by consumers and 
business associations. As to the geographical distribution of responses, there was at least one 
reply  from  every  Member  State  whilst  the  biggest  number  of  responses  was  received  from 
Germany  (50%)  followed  by  Belgium  (11%)  and  UK  (6%).  The  survey  questionnaire 
consisted of short questionnaires for individual consumers and for individual companies and 
of  a  more  comprehensive  'full'  questionnaire  for  other  respondents.  The  'full'  questionnaire 
was  optional  for  individual  consumers  and  individual  companies.  Around  38%  of  the 
consumer  respondents  and  around  20%  of  the  companies  chose  to  also  reply  to  the  full 
questionnaire.  The  survey  responses  consisted  of  replies  to  multiple  choice  questions  and 
open  text  comments  to  specific  questions.  Around  50  respondents  submitted  also  additional 
position  papers.  The  public  consultation  provided  information  essentially  in  the  form  of 
opinions about aspects of the Consumer law directives, but were not supported by evidence. 
The  respondents  were  self-selecting  and  can  therefore  not  be  considered  as  representative, 
moreover  within  the  different  stakeholder  categories,  the  numbers  of  respondents  are 
relatively  low.  The  results  were  nonetheless  used  to  inform  this  evaluation,  also  in  order  to 
complement information gathered from other sources. In particular, the level of replies from 
national and EU level business and consumer associations was high enough to be considered 
useful for the evaluation (20 consumer associations, 86 business associations), also in view of 
the fact that in particular the EU level associations represent a significant number of members 
from different Member States. Annex 2 provides more information and a short analysis of the 
CRD  related  outcome  of  the  public  consultation.  A  summary  and  the  responses  have  also 

to 

17 Consumer Market Study to support the Fitness Check of EU consumer and marketing law (so called Lot 3) is 
available at: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 
18 The "EU sweep" is an EU-wide screening of websites. It is conducted in a form of simultaneous, coordinated 
its  enforcement. 
law  and 
identify  breaches  of  consumer 
checks 
http://ec.europa.eu/consumers/enforcement/sweeps/index_en.htm, 
sweep: 
http://ec.europa.eu/consumers/enforcement/sweeps/directive/index_en.htm  
19  Final 
detail.cfm?item_id=59332 
20 In addition, a few replies were submitted outside the EU survey IT tool. 

at:  http://ec.europa.eu/newsroom/just/item-

subsequently  ensure 

study  on  CRD 

report  of 

available 

CRD 

2015 

the 

to 

12 

 
 
 
                                                 
been  published  on  the  Commission  website21  and  a  detailed  report  prepared  by  the  external 
consultant of the Fitness check is published as part of the supporting studies22.  

4.3. Consumer Summit dedicated to Fitness Check (17 October 2016) 

The  2016  Consumer  Summit23  was  dedicated  to  the  Fitness  Check  of  EU  consumer  and 
marketing  law  and  CRD  related  issues,  and  brought  together  around  450  representatives  of 
national  authorities,  European  institutions,  consumer  organisations,  businesses  as  well  as 
academics. It focused on the issues of consumer information requirements stemming, among 
others, from the CRD, the fairness of commercial practices and of contractual terms and ways 
to enhance the effectiveness of the injunction procedure. The participants largely shared the 
view that current EU consumer and marketing laws broadly remain fit for purpose. The key 
weaknesses  identified  were  related  to  low  and  uneven  enforcement  linked  to  a  low  level  of 
consumers'  and  traders'  awareness  about  their  rights  and  duties.  As  regards  needs  for 
modernising  the  existing  rules,  the  participants  were  largely  pointing  towards  targeted 
amendments to the existing directives, in particular to streamline and remove overlaps (e.g. by 
codification/  recast  into  a  single  instrument)  and  further  awareness  raising  efforts  and 
guidance on the interpretation/ application. 

In  relation  to  consumer  information,  one  of  the  three  main  topics  of  the  Summit,  the 
participants  largely  agreed  that  there  is  a  need  for  simplification  of  the  information 
requirements  currently  provided  in  several  directives,  strengthening  the  transparency 
requirements  for  online  intermediaries  (platforms)  and  improving  the  way  information  is 
displayed to consumers. All information about the Summit, including the conclusions of the 
thematic workshops, is available on the website of DG Justice and Consumers.24  

4.4. Stakeholder expert group 

For the purposes of the Fitness Check and the CRD evaluation, DG Justice and Consumers set 
up, through an open call for applications, a dedicated Stakeholder expert group consisting of 
the  main  EU  level  consumer  and  civil  society  organisations,  5  major  national  consumer 
associations  and  main  EU  level  business  associations.  Between  September  2016  and  May 
2017 the Group has met four times to discuss the major evaluation topics as well as specific 
ideas for the future modernisation of EU consumer rules and methods of better presenting to 
consumers  the  mandatory  pre-contractual  information  and  standard  contract  Terms  and 
Conditions. The Group will continue advising DG Justice and Consumers as regards follow-
up activities to the Fitness Check and the CRD evaluation. 

4.5. Meetings with DG Justice and Consumers networks  

21 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=31689 
22 Available at http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 
23 European Consumer Summits are annual stakeholder events organised by DG Justice and Consumers of the 
European  Commission.  European  Consumer  Summit  2016:  http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=34204 
24 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=34204  

13 

 
 
 
                                                 
Since the beginning of 2016, DG Justice and Consumers has made a number of presentations 
at  the  regular  meetings  of  the  DG  JUST  networks  of  consumer  protection  authorities:  the 
Consumer Protection Co-operation (CPC) network, the Consumer Policy Network (CPN), the 
European Consumer Consultative Group (ECCG) and the European Consumer Centres (ECC) 
network. At the meetings, focus was usually on the Fitness check of consumer and marketing 
law. There seemed to be agreement that the existing body of EU consumer law overall is still 
fit for purpose and there was no need for fundamental changes. Most members see benefit of 
streamlining  and  removing  overlaps  in  existing  law.  There  were  divergent  views  on  the 
question of level of harmonisation. For more details, please refer to point 6 of Annex 2.  

4.6.  Sweep  activities  and  enforcement  actions  by  CPC  network  to  ensure 
compliance with CRD  

Under  the  Consumer  Protection  Cooperation  (CPC)  Regulation25,  enforcement  authorities  – 
coordinated  by  the  European  Commission  or  by  a  Member  State  –  can  coordinate  their 
enforcement  activities  (such  as  EU-wide  screening  of  websites,  called  'sweeps')  and  launch 
actions  requiring  traders  operating  in  several  EU  countries  to  cease  commercial  practices 
contrary to EU consumer law. 

In 2014 a sweep was carried out on guarantees for consumer electronics. The CPC authorities 
checked  in  total  437  websites  selling  consumer  electronics26.  54%  (235)  of  these  websites 
were  found  to  be  non-compliant  with  EU  consumer  law  regarding  information  obligations 
about the statutory and commercial guarantees. The lack of a reminder of the existence of the 
legal guarantee of conformity for goods before the consumer is bound by a distance contract – 
as required by Article 6(1)(l) of CRD was found in 174 websites (ca. 40%).  

In  2015  a  specific  sweep  was  carried  out  on  the  CRD  by  the  CPC  authorities27,  under  the 
coordination  of  the  Commission.  In  total,  the  EU  Member  States'  authorities  checked  743 
websites  for  their  compliance  with  pre-contractual  information  requirements.  Among  these 
websites, there was a full spectrum of traders ranging from smaller players to big e-commerce 
platforms. The sweep revealed irregularities on 63% of the swept websites. After corrections 
and enforcement actions following the sweep this number went down to 12%. 

4.7. Other consultation and evidence sources  

In addition, the CRD evaluation benefited from the findings of the evaluation carried out by 
the European Economic and Social Committee as to how civil society organisations across the 
EU perceive and experience the implementation of CRD. The results of this report were taken 
into  account  in  the  study  prepared  by  the  external  contractor,  see  point  4.1  above,  and  see 
point  9  of  Annex  2  for  more  details  on  the  EESC  report.  Moreover,  the  evaluation  also 
benefited  from  the  findings  of  a  study  recently  concluded  by  DG  Justice  and  Consumers, 

25  Regulation  (EC)  No  2006/2004,  OJ  L  364,  9.12.2004,  p.  1.  The  CPC  Regulation  links  national  competent 
authorities to form a European enforcement network, the "CPC network". 
26 2014 sweep http://ec.europa.eu/consumers/enforcement/sweeps/guarantees/index_en.htm  
27 2015 CRD sweep: http://ec.europa.eu/consumers/enforcement/sweeps/directive/index_en.htm   

14 

 
 
 
                                                 
analysing  consumer  issues  in  the  collaborative  economy  (see  more  details  on  this  study  in 
section 6.4.6).28 

Moreover,  several  business  stakeholder  groups  submitted  their  comments  on  specific 
provisions  of  the  CRD,  either  through  the  REFIT  stakeholder  platform29  or  directly  to  DG 
JUST, which have also been taken into consideration for this evaluation.  

4.8. Limitation – robustness of the findings 

Due  to  the  relatively  recent  transposition  and  implementation  of  the  CRD30  and  the  lack  of 
robust  quantitative  data,  the  evaluation  is  mainly  limited  to  an  analysis  of  the  national 
transposition  of  the  CRD,  particularly  focusing  on  the  effects  achieved  in  the  short  term  by 
the  Directive,  and  possible  modifications  needed  on  the  basis  of  difficulties  already 
encountered in the transposition and first application period of the Directive. 
Furthermore, qualitative assessment has been used as much as possible to supplement scarce 
quantitative data.  
The  online  survey  conducted  by  the  contractor  had  a  relatively  low  response  rate  and  data 
regarding  the  concrete  impacts  of  the  CRD  gathered  during  the  consultation  activities  is 
limited.  Where  possible  the  above  limitations  were  remedied  by  the  use  of  data  collected 
through  desk  researches  and  data  gathered  in  the  consultation  process  carried  out  for  the 
Fitness Check of EU consumer law as well as with available Eurobarometer data.  
One also has to keep in mind that the CRD operates in a broad and complex regulatory and 
economic system. For instance, changes to the volume of online sales may arise for several 
reasons, so that the causal link with the CRD cannot always be clearly established. 

5. Implementation state of play   

5.1. Transposition and Implementation 

According  to  Article  28  of  the  Directive,  Member  States  had  to  adopt  and  publish  national 
measures  transposing  the  Directive  by  13  December  2013,  with  a  view  to  apply  these 
measures from 13 June 2014.  

The Commission services organised no less than 5 transposition workshops between 2012 and 
2014, and in June 2014 issued a guidance document (the CRD Guidance).31  

However,  delays  in  transposition  occurred  in  more  than  half  of  the  Member  States  and  the 
Directive  was  applicable  in  all  28  Member  States  only  as  from  the  end  of  2014.32  The  full 
harmonisation  character  of  the  Directive  meant  that  Member  States  had  to  carry  out  an 
extensive review of their national legislation to bring it into line with the CRD. 

28 "Exploratory study of consumer issues in the sharing economy" - to be published. 
29 https://ec.europa.eu/info/sites/info/files/consumer_policy.pdf  
30  See  overview  of  Member  States  that  were  late  in  transposing  the  Directive  below  in  the  Section  on 
Transposition and Implementation.   
31  DG  JUST  Guidance  document  on 
consumers/consumer_rights/rights-contracts/directive/index_en.htm 
32 The following Member States were delayed in transposing the Directive: AT, BE, BG, FI, HR, HU, ES, FR, 
IT, LV, LU, NL, PL, PT, RO, SK, SL.   

the  CRD,  June  2014,  available  at:  http://ec.europa.eu/ 

15 

 
 
 
 
                                                 
At present there are still a number of outstanding issues with several Member States regarding 
the correct transposition of specific provisions (see more details in the subsection 5.3 Follow-
up to transposition). 

Member States chose different transposition techniques: some Member States transposed the 
CRD by incorporating it into already existing laws (e.g. their Civil Codes), others adopted a 
new piece of legislation transposing the CRD almost verbatim, and some chose a combination 
of these two approaches.33 

5.2. Full harmonisation and regulatory choices 

Despite  its  general  full  harmonisation  character,  the  Directive  allows  Member  States  to 
impose  additional  pre-contractual  information  requirements  for  on-premises  contracts  under 
article  5(4).  In  addition,  it  gives  Members  States  the  possibility  to  apply  certain  regulatory 
choices under their own national law34 as shown below. 

  Article 3(4) – not to apply the provisions to off-premises contracts if the payment to be 
made  by  the  consumer  does  not  exceed  50  euros;  twenty  Member  States  have  made 
use of it and twelve of them (CY, DE, EE, EL, FI, LV, LT, MT, PL, SI, SE) have set 
out  lower  value  limits  for  contracts  to  be  excluded  from  the  scope  of  the  directive 
whilst  three  Member  States  (BE,  PT  and  the  UK)  have  applied  a  partial  exemption, 
excluding specific types of contract  or exempting off-premises contracts of less than 
50  euros  from  the  application  of  specific  provisions.  The  remaining  Member  States 
have not made use of this Article. 

  Article 6(7) – to impose language requirements regarding the contractual information 
for  distance  and  off-premises  contracts  so  that such  information  is  easily  understood 
by  the  consumer;  more  than  half  of  all  Member  States  have  made  use  of  this 
regulatory choice. In Member States with more than one official language, such as in 
CY and MT, the regulatory choice requires information to be provided at least in one 
of the country’s official languages.  

  Article  6(8)  –  to  impose  additional  information  requirements  in  accordance  with 
Directive  2006/123/EC  on  services  in  the  internal  market  and  Directive  2000/31/EC 
on electronic commerce regarding distance and off-premises contracts; only three EU 
Member  States  (UK,  HU  and  CY)  have  made  use  of  this  option,  with  some 
differences.  In  HU,  the  legislator  has  added  requirements  such  as  the  provision  of 
information on warranties and guarantees, information on the right to conciliation and 
on  electronic  correspondence  other  than  for  off-premises  or  distance  contract.  In  the 
UK, this option has been used only partially: enhanced information requirements are 
now needed by energy providers and estate agents. 

  Article  7(4)  –  to  apply  a  simplified  information  regime  for  off-premises  contracts  to 
carry out repairs or maintenance; it has been used by BE, IE, LT, NL, PT, SI, SK and 
ES but not in other EU Member States. 

33  For  more  details  on  the  national  transposition  measures  see  the  final  report  of  the  CRD  study  published  at: 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 
34 http://ec.europa.eu/justice/consumer-marketing/files/overview_regulatory_choices.pdf  

16 

 
 
 
                                                 
  Article  8(6)  –  to  introduce  specific  formal  requirements  for  contracts  concluded  by 
telephone;  the  majority  of  Member  States35  have  decided  to  apply  this  regulatory 
option  but  in  some  Member  States  it  only  applies  when  the  professional  calls  the 
consumers (and not when the consumer makes the first contact). 

  Article  9(3)  –  to  maintain,  in  the  case  of  off-premises  contracts,  existing  national 
legislation prohibiting the trader from collecting payment from the consumer during a 
given  period  after  the  conclusion  of  the  contract.  Only  a  few  Member  States  have 
applied this provision: BE, FR, EL, MT and SK. The periods that have been set up are 
7 days and 14 days 

The  most  frequent  regulatory  choice  made  by  Member  States  is  Article  3(4)  that  allows 
excluding  off-premises  contracts  with  low  value,  followed  by  the  language  requirement  for 
distance and off-premises contracts and the need to confirm the contract concluded by phone. 
However,  the  CRD  study  notes  that  according  to  the  survey  conducted  among  traders, 
differences in national legislation are no longer a main reason for not conducting cross-border 
trade. This would suggest that the CRD has been effective in reducing earlier fragmentation 
and  the  regulatory  choices  made  by  Member  States  appear  not  to  have  had  a  significant 
detrimental impact on the achievement of the objectives.  

5.3. Follow-up to transposition 

The Commission services have carried out an extensive check of the transposition of the CRD 
in all Member States that has led to the opening of 21 bilateral dialogues (so called EU Pilot 
cases) with the national authorities concerned. It has notably revealed that a majority of the 
Member States had, at first, failed to transpose a number of definitions and key terms of the 
Directive  in  their  national  law.  The  Commission  services  have  brought  the  Member  States' 
attention to the fact that Article 4 CRD set out a full harmonisation approach:  

"Member  States  shall  not  maintain  or  introduce,  in  their  national  law,  provisions 
diverging  from  those  laid  down  in  this  Directive,  including  more  or  less  stringent 
provisions  to  ensure  a  different  level  of  consumer  protection,  unless  otherwise 
provided for in this Directive". 

Accordingly,  the  Commission  services  have  taken  the  position  that  the  full  harmonisation 
approach of the Directive implies that Member States cannot omit to transpose definitions or 
key  terms  from  the  Directive,  if  such  omissions  could  create  discrepancies  between  the 
national  law  and  the  Directive  which  could  lead  to  different  interpretations  in  individual 
cases.  After  raising  this  issue  with  the  Member  States,  many  have  agreed  to  transpose  the 
relevant  terms  in  their  national  legislation.  Outstanding  issues  remain  on  this  concern  for 
certain Member States.  

The  CRD  provisions  related  to  digital  content  are  an  example  of  this  issue  dealt  with  in  8 
bilateral dialogues. The CRD is the first Directive under EU consumer and marketing law that 
includes provisions on digital content and a few Member States have had some difficulties in 
transposing these concepts in an adequate manner. In some Member States the definition of 
"digital content" from Article 2(11) CRD had not been transposed or, in two cases, the scope 

35 Except HR, CZ, DK, DE, IE, FI, HU, LV, SE, UK. 

17 

 
 
 
                                                 
of  the  Directive  had  been  restraint  to  digital  contracts  against  consideration.  Other  Member 
States  have  had  problems  with  transposing  the  provisions  relating  to  pre-contractual 
information  requirements  for  digital  content  (on  functionality  and  interoperability)  under 
Articles 5(1)(g) and (h) and 6(1)(r) and (s) CRD, or the provisions related to obligations for 
the consumer in the event of withdrawal under Article 14(4)(b) CRD.  

A  typical  argument  by  a  number  of  Member  States  for  not  having  transposed  certain 
provisions, such as those related to definitions, termination of a contract, burden of proof, was 
that these concepts already existed in other parts of their national legal system, or that these 
provisions represented general concepts not requiring explicit transposition.  

While Member States have made or proposed significant changes to their transposition laws 
in order to address these issues and bring their law in line with the Directive, the Commission 
services continue the bilateral dialogue with most of the Member States concerned to ensure 
full compliance. Whilst cases of lack of or incorrect transposition clearly affect the attainment 
of the objectives laid down by the Directive, few data are currently available to the European 
Commission  as  to  the  concrete  impact  in  practice  of  such  delayed  and/or  incorrect 
transpositions, since all the mentioned EU Pilot cases (with the exception of one) were opened 
ex officio, and not on the basis of complaints.  

6. Answers to the evaluation questions  

6.1. Effectiveness 

Achievement of Directives' objectives – general analysis  

Effectiveness  considers  to  what  extent  the  objectives  pursued  by  the  CRD  have  been 
achieved, namely setting a high level of consumer protection across the EU and contributing 
to the proper functioning of the internal market by approximating certain aspects of Member 
States'  laws,  regulations  and  administrative  provisions  concerning  contracts  concluded 
between consumers and traders. Further considerations include analysing the reasons why EU 
regulatory  intervention  has  (or  has  not)  been  successful  to  date  and  the  extent  to  which 
barriers and obstacles remain that could discourage traders from selling and consumers from 
shopping cross-border.  

The evaluation assessed the following questions: 

  How effective has the Directive been in eliminating the obstacles for businesses carrying 

out economic activities within the EU? 

  What have been the impacts on consumer confidence and welfare? 
  What factors influenced/hindered the achievements observed? 
  What is the level of business compliance and how does this affect effectiveness? 
  How effective has the enforcement of the Directive being? 

18 

 
 
 
 
 
As already highlighted in the introduction, due to the limited time of practical application, the 
evaluation  has  been  mainly  based  on  assessing  how  far  the  Member  States,  businesses  and 
consumers are implementing and making use of the provisions of the Directive. Therefore, the 
evaluation  focuses  on  the  transposition  and  implementation  of  the  new  or  modified  rules 
introduced  and  their  effects  in  terms  of  improving  the  consumer  protection  and  eliminating 
the regulatory fragmentation, in order to assess whether the practical uptake is in line with the 
achievement  of  the  Directive's  main  objective  of  enhancing  consumer  protection  while 
contributing  to  the  proper  functioning  of  the  internal  market,  with  particular  regard  to  the 
increase of cross-border B2C trade. 

In  fact,  the  2008  Impact  Assessment  supporting  the  proposal  for  the  Directive  noted  that 
consumers  were  not  reaping  the  benefits  of  a  fully  integrated  retail  market  with  increased 
choice  and  lower  prices.36  One  of  the  main  reasons  for  this  was  the  fragmentation  of  the 
national  laws  regulating  consumer  transactions,  which,  in  turn,  increased  reluctance  by 
businesses  to  sell  cross-border  to  consumers  and  lowered  consumer  confidence  in  shopping 
cross-border. 

The  comparative  analysis  of  the legislative  situation  pre-CRD  and  post-CRD  carried  out  by 
the  external  contractor  has  highlighted  that,  for  many  of  the  key  provisions  of  the  CRD, 
consumer protection has been strengthened in most, if not all, Member States. This is because 
there  had  been  either  no  such  protection  previously  (e.g.  in  relation  to  pre-contractual 
information  and  the right  of  withdrawal  for  digital content  contracts  and  prohibiting  default 
options on websites) or, where there had already been some degree of protection, its level was 
increased by additional requirements on traders and harmonised rules on consumer protection. 
In particular, the analysis has shown: 

•  Prior  to  the  implementation  of  the  CRD,  in  almost  all  Member  States  (except  Slovakia) 
consumers  were  not  protected  by  legislation  specifically  concerning  the  pre-contractual 
information applicable to digital content and the right of withdrawal; 

• The level of pre-contractual information which traders are required to provide to consumers 
under Articles 5 and 6 has increased in all Member States. Additionally, there are now clearer 
and stricter consequences if traders fail to inform consumers on their right to withdraw, with 
the  withdrawal  period  having  increased  in  26  Member  States,  thanks  to  the  CRD  rules 
(Article 10), to 12 months from the end of the initial withdrawal period. Indeed, only in BE 
and in DE this period had to be reduced from an unlimited time to 12 months, following its 
entry into force;  

• The period for the withdrawal right (Article 9) has increased in 15 Member States, remained 
the same in 9 (BE, CY, CZ, DK, EE, EL, FI, SE and LV), and got reduced in one (DE);  

•  Refund  periods  have  now  shortened  across  most  Member  States  and  the  amounts  that 
consumers are entitled to receive can now include the delivery costs (Article 13); 

•  Delivery  periods  are  now  set  in  a  number  of  countries  where  these  were  not  regulated 
previously (CZ, EE, ES, FR, IE, LV, MT, PT, SK, SE and the UK) (Article 18);  

36  SEC(2008)  2544  Commission  Staff  Working  Document  accompanying  the  proposal  for  a  directive  on 
consumer rights Impact Assessment Report of 8.10.2008 

19 

 
 
 
                                                 
•  Previously,  most  Member  States  had  no  provision  in  their  national  legislation  protecting 
consumers  against  excessive  telephone  charges,  additional  payments,  and  inertia  selling 
(Articles 21, 22, 27).  

Moreover,  the  CRD  study  concludes  that  the  examination  of  national  legislation  in  the 
different Member States prior to the CRD implementation has shown a significant degree of 
variation concerning national rules on consumer protection. For instance, the rules on delivery 
varied as did the periods for the right of withdrawal. Thus, the CRD has reduced differences 
among  Member  States,contributed  to  the  reduction  of  regulatory  discrepancies,  enhanced 
regulatory  certainty  across  Member  States  and  hence  incentivised  traders  and  consumers  to 
respectively sell and buy cross-border. 

The  results  from  the  surveys  conducted  by  the  contractor  on  the  impacts  of  the  CRD  show 
that,  overall,  the  Directive  has  been  perceived  by  consumers  and  consumer  associations  as 
having enhanced the level of protection in both domestic and cross-border purchases. This is 
in  line  with  the  Directive's  objectives  to  boost consumers’  confidence  in  both  domestic  and 
cross-border purchases, especially online as also shown by Eurobarometer and Eurostat data 
trends examined below.  

In  particular,  in  terms  of  effects  of  the  implemented  rules,  most  consumers  and  consumer 
associations responding to the CRD survey said that the level of protection was moderate or 
high  when  buying  goods  and  services  as  a  result  of  the  CRD  implementation.  The  EESC’s 
report notes that 37% of respondents to their questionnaire felt that consumer confidence in 
online  shopping  had  increased  since  June  2014  and  31%  believed  that  confidence  had 
increased  when  buying  cross-border.  37  Also  according to  available  Eurobarometer  data,  the 
percentage of consumers feeling confident in purchasing online from another Member State 
has increased since 2014. In 2016, 58% of consumers felt confident in purchasing online from 
another Member State, which represents an increase of 21 percentage points since 2014.38   

The  CRD  provisions  that  were  rated  as  the  most  effective  ones  by  consumers,  their 
associations  and  national  competent  authorities  in  the  survey  conducted  by  the  external 
contractor  are  the  right  of  withdrawal  and  the  pre-contractual  information  requirements  for 
distance  and  off-premises  contracts,  although  these  latter  have  been  found  excessively 
burdensome  by  traders  (see  Section  on  Efficiency).  For  the  European  Consumer  Centres 
(ECCs) consulted within the CRD study, the right of withdrawal is one of the most effective 
provisions in ensuring consumer protection cross-border, together with the ban on pre-ticked 
boxes (Article 22). Also in the dedicated workshop of the 2016 Consumer Summit the ban on 
pre-ticked  boxes  was  mentioned  as  a  particularly  effective  rule,  together  with  the  'button 
provision' (Article 8(2)). 

In detailed responses to the CRD survey, traders highlighted that the Directive had improved 
customer service and after-sales care within competitive markets, which in turn had helped to 
build consumer trust.   

37 Similar numbers of respondents believed that confidence had stayed the same (35% and 33% respectively). 
38 Source: Flash Eurobarometer 397 and survey on consumers' attitudes towards cross-border trade and consumer 
related issues (2016) to be used in the forthcoming Consumer Conditions Scoreboard 2017 (expected publication 
– summer 2017). Please note that methodology changed over the years, therefore trends and comparisons of data 
in different years should be interpreted with caution. 

20 

 
 
 
                                                 
Although traders answering the CRD survey did not notice an increase in sales as a result of 
the Directive, a third of respondents consulted under the EESC’s evaluation agreed that intra 
EU cross-border online sales had increased since June 2014 (EESC, 2017). Also in the online 
public consultation, around 30% of companies agreed that businesses can trade across the EU 
more easily thanks to the harmonised EU consumer and marketing rules, whilst 11% did not 
agree  and  59%  had  no  opinion  on  this.  Analysis  by  Eurostat  shows  an  increase  of  online 
cross-border purchases from 25 % in 2012 to 32 % in 2016.39  

According to the stakeholder views, these positive developments are attributable also to EU 
consumer protection legislation. Whilst it is quite difficult to disentangle how far an increase 
in cross-border online sales is due to the CRD, as opposed to other factors many stakeholders 
consulted for the CRD study confirmed that  there is  growing interest in cross-border online 
shopping in order to benefit from lower prices, and stated that the CRD is one of the factors 
that helps to give consumers increased confidence in such shopping activities and for traders 
the advantage of one set of harmonised rules. 

Concerning  obstacles  to  the  achievement  of  the  Directive's  objective  of  increasing 
cross-border trade, the CRD survey enquired about the main reasons for traders not to sell to 
consumers  in  other  EU  countries.  Nearly  half  of  the  respondents  replied  that  they  are  not 
interested in selling cross-border, while in interviews they pointed to issues which might be 
influenced  by  the  regulatory  framework:  adapting  and  complying  with  different  consumer 
protection  rules  (17%),  formal  requirements  (18%)  and  problems  in  resolving  cross-border 
conflicts  (11%).  Language  and  cultural  differences  and  logistical  challenges  were  also 
considered  as  main  difficulties  when  selling  in  other  EU  countries.  For  traders  operating 
cross-border,  regulatory  fragmentation  was  found  to  be  the  main  difficulty  when  selling  in 
other EU countries. Although these results have to be read cautiously due to the low number 
of respondents40, they confirm the results of the Impact Assessment accompanying the digital 
contracts proposals41.  

As regards traders' views on obstacles to cross-border sales, the available Eurobarometer data 
show  that  in  2016,  37%  of  traders  currently  selling  online  considered  differences  between 
consumer protection rules as important obstacles to development of online cross-border sales, 
which represented a decrease of 5 percentage points compared to 2014.42 

In  the  2015  Digital  Single  Market  (DSM)  Strategy43,  the  Commission  stressed  the  yet 
untapped  potential  for  further  growth  within  the  EU,  by  noting  that,  whilst  61%  of  EU 
consumers feel confident about purchasing online from a retailer in their own Member State, 

source: 

39 Base: individuals who bought or ordered goods or services over the internet for private use in the previous 12 
months, 
http://ec.europa.eu/eurostat/statistics-explained/index.php/E-
commerce_statistics_for_individuals (figure 8.) 
40  The  CRD  study  showed  that of  the  89  traders not selling  cross-border  who  replied  to  the  question on  main 
reasons  for  not  selling  in  other  EU  countries,  while  45  traders  operating  cross-borders  replied  to  the  question 
about their main difficulties when selling in other EU countries. 
41 Available at http://ec.europa.eu/justice/contract/digital-contract-rules/index_en.htm 
42 Source Flash Eurobarometer 396 and survey on retailers' attitudes towards cross-border trade and consumer 
protection (2016) to be used in the forthcoming Consumer Conditions Scoreboard 2017 (expected publication – 
summer 2017). Please note that methodology changed over the years, therefore trends and comparisons of data 
in different years should be interpreted with caution. 
43  Communication  from  the  Commission  "A  Digital  Single  Market  Strategy  for  Europe"  Brussels,  6.5.2015, 
COM(2015) 
http://eur-lex.europa.eu/legal-
available 
content/EN/TXT/?qid=1447773803386&uri=CELEX:52015DC0192  

final; 

192 

at: 

21 

 
 
 
                                                 
only 38% feel confident about purchasing from a retailer in another EU Member State. The 
DSM Strategy also highlighted as a problem the fact that only 7% of SMEs in the EU were 
selling  cross-border.  This  was  attributed  also  to  differences  in  Member  States  consumer 
protection rules that discourage companies from cross-border trading and prevents consumers 
from benefitting from the most competitive offers. The Commission therefore concluded on 
the need to work on further harmonisation of the obligations of the parties to a sales contract. 
As a result, the Commission proposed, in December 2015, two directives fully harmonising in 
a targeted way the rules on remedies for digital content and distance sales of tangible goods. 
These proposals are currently under negotiations in the European Parliament and Council. 44   

Despite  the  beneficial  effects  brought  about  by  the  Directive,  consumer  associations 
responding to the CRD survey indicated that, for cross-border activities, the CRD was more 
effective  in  relation  to  the  provision  of  goods  (43%  thought  the  CRD  was  very  or  quite 
effective) than services (34% thought the CRD was very or quite effective) or digital content 
(30% thought the CRD was very or quite effective). These results correspond with the latest 
Consumer  Market  Scoreboard,  which  concluded  that  despite  the  fact  that  improvements  are 
more visible for services markets than for goods markets, the latter continue to be assessed 
more favourably than services markets45.  

Contracts for the supply of digital content remain an area where consumers do not yet feel as 
protected as for sales or services contracts. Consumer associations attribute this relatively low 
level  of  effectiveness  of  the  rules  on  digital  content  included  in  the  CRD  to  both  lack  of 
enforcement  and  difficulties  with  the  implementation  of  these  provisions,  especially  for  the 
right  of  withdrawal.  The  Commission  services  consider  that  another  reason  is  probably  the 
fact  that  contracts  for  the  supply  of  digital  content  are  still  a  relatively  recent  phenomenon 
compared  to  sales  and  services  contracts  and  so  far  no  tailor-made  rules  for  digital  content 
exist in national laws of almost all Member States.   

However, unlike the rules on digital content for which there could be scope for clarification of 
some  of  them,  the  evaluation  has  found  that  overall  the  way  stakeholders  are  implementing 
and making use of the provisions of the Directive and the practical uptake is in line with the 
objectives pursued by the Directive, as also showed by mentioned trends of increasing online 
purchase  and  consumers'  confidence.  This  is  further  highlighted  in  the  next  subsections 
examining  the  level  of  compliance,  awareness  and  enforcement  of  CRD  rules,  where  the 
evaluation  has  also  tried  to  analyse  the  most  recurrent  factors  reported  by  stakeholders  as 
hindrance to the CRD’s effectiveness and thus to the achievement of its objectives, in order to 
identify appropriate follow-up actions to tackle the ascertained problems.   

As  the  CRD  study  noted,  the  main  reported  obstacles  to  the  effectiveness  of  the  CRD 
highlighted by stakeholders include: lack of awareness and understanding among consumers 
and  traders  of  the  Directive's  provisions,  lack  of  clarity  of  some  provisions,  lack  of 
compliance by traders, and issues related to enforcement.  

44  For  more  information,  see  "Digital  contracts  for  Europe"  at:  http://ec.europa.eu/justice/contract/digital-
contract-rules/index_en.htm  
45  Consumer  Markets  Scoreboard  -  2016  Edition  http://ec.europa.eu/consumers/consumer_evidence/consumer 
_scoreboards/12_edition/index_en.htm;  direct  link  to  the  document:  http://ec.europa.eu/consumers/consumer 
_evidence/consumer_scoreboards/12_edition/docs/consumer_markets_scoreboard_2016_en.pdf  

22 

 
 
 
                                                 
6.1.1. Awareness  

A  lack  of  awareness  on  the  side  of  traders  and/or  consumers  in  respect  of  the  rights  and 
obligations stemming from the Directive may limit the effectiveness of the Directive. In fact, 
lack  of  awareness  enhances  the  risks  of  unintended  non-compliance  by  traders  with  their 
obligations.  If  consumers  do  not  know  their  rights  sufficiently  well,  they  are  unlikely  to 
enforce them effectively and suffer detriment as a result.  As further explained below, this was 
found to  be the case for specific  CRD provisions, particularly  regarding the rules on digital 
content contracts, and for some categories of stakeholders such as SMEs. 

With the aim of  increasing  the general knowledge among  traders and consumers  of the key 
consumer  rights  based  on  EU  consumer  law,  the  Commission  launched  a  Consumer  Rights 
Awareness  Campaign46,  which  ran  between  spring  2014  and  March  2016.  The  campaign 
focused in particular on the Consumer Rights Directive, together with the Unfair Commercial 
Practices  Directive,  the  Unfair  Contract  Terms  Directive  and  the  Consumer  Sales  and 
Guarantees  Directive.  National  consumer  authorities,  consumer  associations,  business 
associations and others were encouraged to participate in the campaign. 

The ex-post evaluation of the campaign found that the messages addressed to consumers were 
relevant and well received, and thus effective in raising and enhancing awareness of consumer 
rights.  However,  it  was  noted  that  the  message  targeted  at  SMEs  regarding  the  benefits  of 
respecting consumer rights was not as effective, and traders were rarely able to quote specific 
rights  relating  to  particular  situations.  Recommendations  made  in  the  evaluation  suggested 
that  future  campaigns  and  information  should  focus  on  the  obligations  that  traders  have  to 
comply with consumer rights.  

In addition to the EU-wide awareness-raising campaign, the CRD study also identified a wide 
range of awareness-raising activities undertaken at national level.  

The  CRD  study  concludes  that,  despite  the  initiatives  undertaken,  the  level  of  awareness  of 
the  CRD  was  not  found  to  be  in  line  with  what  it  could  have  been  expected,  particularly 
regarding some categories of stakeholders and some specific key provisions of the Directive, 
as further analysed in next sections.  

Similarly, the EESC’s study concluded that: 

In  general,  consulted  parties  have  confirmed  that  they  are  sufficiently  aware  of  the 
national legislation implementing the directive as well as of the national proceedings 
to enforce it, in particular with regard to pre-contractual information and the right to 
withdrawal.  Yet  a  large  number  of  consumers  and  SMEs  are  still  not  aware  of  the 
directive’s  specific  provisions  (i.e.  recitals  and  articles  of  the  directive)  because  the 
legislation is too complicated and technical for the consumer. Training initiatives and 
measures for disseminating the substance of the Directive and the rights deriving from 
it are deemed necessary. 

In December 2016, the Commission has launched, upon initiative of the IMCO Committee of 
the  European  Parliament,  a  pilot  project  for  training  of  SMEs  on  EU  consumer  law  which 

46 http://ec.europa.eu/justice/newsroom/consumer-marketing/events/140317_en.htm 

23 

 
 
 
                                                 
aims  at  considerably  increasing  the  awareness  of  traders  about  their  obligations  and  the 
corresponding consumer rights.   

6.1.1.1. Consumers' awareness of CRD provisions  

Consumer associations responding to the survey reported in the majority of cases a low level 
of awareness among consumers of the CRD provisions, and only 4% noted that the level of 
awareness was high. In fact, while consumers seem to have a good awareness of the right of 
withdrawal,  exceptions  from  this  right  and  specific  rules  on  the  right  of  withdrawal  from 
digital content contracts were found to be the provisions with very low level of awareness.  

In  particular,  the  consumers  that  were  consulted  through  the  CRD  survey  showed  a 
high/moderate  level  of  awareness  of  the  right  of  withdrawal  (which  was  one  of  the  5  key 
rights highlighted during the 2014-2016 Consumer Rights Awareness Campaign): this same 
result  is  confirmed  by  the  survey  conducted  in  the  ex-post  evaluation  of  the  awareness 
campaign. 

In  the  survey  consumers  were  also  tested  as  regards  awareness  of  the  CRD  provision  on 
inertia selling under Article 27, according to which the consumer is not obliged to give any 
consideration  to  goods  or  services  in  case  of  unsolicited  supplies  prohibited  by  the  UCPD. 
The  awareness  test  showed  that  consumers  are  only  partly  aware  of  their  right  in  case  of 
inertia  selling.  The  responses  were  split  almost  equally  between  respondents  stating  that 
consumers  are  not  obliged  to  pay  the  invoice  provided  that  they  return  the  product,  and 
respondents stating, correctly, that consumers are not obliged to pay the invoice nor to return 
the product. Very few consumers responded that consumers are obliged to pay when receiving 
unordered products. 

The provisions for which the lowest level of awareness was reported in the CRD survey were 
the  pre-contractual  information  requirements  on  digital  content,  the  rules  on  the  right  of 
withdrawal for digital content, the exemptions from the right of withdrawal, and the rules on 
delivery and the passing of risk.  

6.1.1.2. Traders’ awareness of CRD provisions 

The  CRD  survey  asked  trade  associations  about  the  level  of  awareness  of  obligations  by 
traders.  Over  70%  of  respondents  indicated  either  a  high  or  a  moderate  level  of  awareness. 
Interestingly, in their opinion, traders are more aware of the CRD than of national legislation. 
Right  of  withdrawal  and  pre-contractual  information  requirements  for  distance  and 
off-premises contracts are the provisions trade associations think traders are most aware of.  

The  provisions  that  the  trade  associations  consider  traders  to  be  least  aware  of  are  those 
concerning  digital  content.  Consulted  traders  confirmed  such  low  level  of  awareness  on 
digital  content  rules:  only  13%  of  traders  recognised  that  changes  had  been  made  in  the 
legislation relating to extending information obligations and the right of withdrawal to digital 
content, in comparison with 65% who acknowledged that changes had taken place in respect 
of pre-contractual information requirements for distance and off-premises contracts.  

The CRD study concludes that this could reflect the fact that many traders responding to the 
survey were not digital content providers, but it could also reflect the fact that digital content 
is a rather new area which has been disciplined for the first time at EU level through the CRD.  

24 

 
 
 
6.1.2. Problems with interpretation 

According  to  the  survey  and  the  online  public  consultation,  several  stakeholders  have 
identified  problems  with  the  interpretation  of  specific  CRD  provisions.  A  lack  of  clarity 
concerning interpretation, as also highlighted in the "Awareness" section above, could lead to 
non-compliance and undermine the effectiveness of the CRD. 

Several problems  concerning interpretation  have been  addressed in  the CRD Guidance. The 
CRD  Guidance  was  adopted  in  June  2014  following  consultations  with  Member  States' 
authorities  in  charge  of  the  transposition  and  enforcement  of  the  Directive,  industry  and 
consumer  stakeholders.  The  CRD  Guidance  aims  to  help  national  authorities  and  courts  to 
apply  the  Directive  in  a  uniform  and  consistent  way,  providing  guidance  on  the  Directive's 
key concepts and provisions. It also includes practical examples that show how the Directive 
should work. 

Several  respondents  to  the  online  public  consultation  commented  on  the  added  value  of  the 
interpretative  guidance.  The  CRD  guidance  was  generally  found  to  be  very  helpful  in 
providing practical examples as to how the Directive should apply and in clarifying grey areas 
in relation to its intended scope. 

Nevertheless, respondents identified certain provisions as particularly problematic. 

Stakeholders have indicated problems concerning the definition of the 'basic rate' (Article 
21), which is not defined in the CRD explicitly. The CRD Guidance clarifies that the Article 
requires traders to ensure that the consumers do not incur charges that exceed the normal costs 
which the consumer would incur for calling a standard (geographic) fixed or mobile number 
that is not subject to any special tariff regime. In its judgment of 2nd of March 2017 the Court 
of  Justice  confirmed  that  "the  concept  of  ‘basic  rate’  referred  to  in  Article  21  of  Directive 
2011/83/EU  […]  must  be  interpreted  as  meaning  that  call  charges  relating  to  a  contract 
concluded with a trader to a telephone helpline operated by the trader may not exceed the cost 
of a call to a standard geographic landline or mobile telephone line. Provided that that limit is 
respected,  the  fact  that  the  relevant  trader  makes  or  does  not  make  a  profit  through  that 
telephone helpline is irrelevant."47 

The  clarification  provided  by  the  Court,  and  confirming  the  interpretation  included  in  the 
CRD Guidance, will avoid risks of non-compliance in future, ensuring the full effectiveness 
of the concerned CRD provisions. 

Concerning the inclusion of digital content contracts provided without the payment of a 
price, the CRD Guidance takes the position that free digital content should be covered by the 
scope of application of the CRD since, contrary to the definition of sales and service contracts 
(Articles 2(5) and (6)), the Directive does not mention 'payment of a price' as a requirement 
for  the  supply  of  public  utilities  and  online  digital  content.  This  issue  had  been  discussed 
during  the  transposition  workshops  and  all  Member  States,  except  for  two,  have  included 
'free' digital content contracts in their CRD transposition laws. Within the REFIT Stakeholder 
Group, a number of business and consumer stakeholders have however indicated that there is, 
in  their  view,  a  lack  of  clarity  on  the  precise  scope  of  application  as  regards  contracts  on 

47Paragraph  32  of  the  judgement  of  2  March  2017  in  Case  C‑568/15  Zentrale  zur  Bekämpfung  unlauteren 
Wettbewerbs Frankfurt am Main e.V. v comtech GmbH. 

25 

 
 
 
                                                 
digital content provided for free or against data. As further explained in section 6.4.3,  there 
could be a case for clarifying the text of the CRD on this point, in order to provide more legal 
clarity and ensure that the Directive is fully and correctly applied. 

It was also pointed out that there is a certain lack of clarity as regards the distinction between 
a  digital  content  contract  and  a  contract  for  paid  online  services.  Such  lack  of  clarity 
raises concerns about the rules that shall apply in concrete cases. The CRD study suggests that 
the lack of clarity regarding the distinction may help to explain why, in the mystery shopping 
experiment, the level of compliance with information requirements on the right of withdrawal 
for digital content was particularly low; this may also explain, in the contractors' view, why 
traders are reluctant to inform consumers about the exception under Article 16(m), whereby 
the  consumer  does  not  have  a  right  to  withdraw  from  the  digital  content  supply  if  the 
performance has begun with his prior express consent and acknowledgment that, by accepting 
to have the performance starting, he no longer has the right to withdraw48.  

The  above  difficulties  with  regard  to  the  distinction  between  digital  content  and  online 
services  deserve  further  investigations  with  a  view  to  a  possible  follow-up  action,  having 
regard to ensure consistency with the proposal for a Directive on contracts for the supply of 
digital content (DCDP)4950. 

Concerns were also raised as to the clarity of the notion of outside the 'business premises' in 
off-premises contracts (Article. 2(8)) in case of exhibitions and trade fairs. In particular, as 
explained in Recital 22, 'business premises' means the trader's permanent or  'usual basis' of 
business  in  whatever  form,  including  when  used  on  a  seasonal  basis.  The  CRD  Guidance 
indicates  that  contracts  concluded  with  a  trader  at,  for  instance,  a  market  fair  which  takes 
place  regularly  and  lasts  over  a  specified  period  of  time,  are  likely  to  be  on-premises 
contracts.  In  contrast,  if  the  trader  uses  spaces  accessible  to  the  public,  such  as  streets, 
shopping  malls,  beaches,  sports  facilities  and  public  transport  on  an  exceptional  basis,  i.e. 
once or occasionally and for a short duration in a given location, the contracts concluded with 
consumers are likely to be off-premises contracts. In this respect, different stakeholders have 
pointed to the difficulties of assessing what is exactly meant by 'usual basis' (how frequent) in 
the  absence  of  specific  references.  This  may  lead  to  uncertainty  on  the  part  of  traders  in 
determining  whether  their  activities  are  carried  out  on-  or  off-premises  and,  therefore,  what 
rules they have to comply with. 

Stakeholders  also  reported  difficulties  in  assessing  the  moment  from  which  the  14-day 
cooling-off  period  starts  as  regards  contracts  containing  elements  of  both  sales  and 
services contracts. For such contracts the CRD Guidance indicates Article 2(5) as relevant, 
since  it  defines  a  sales  contract  also  as  "any  contract  having  as  its  object  both  goods  and 
services";  consequently  if  a  contract's  main  purpose  is  the  transfer  of  ownership  of  certain 
goods, it should be classified as a sales contract even if it also covers related services provided 
by the seller. Hence, the starting point of the withdrawal period would be "the day on which 
the consumer or a third party other than the carrier and indicated by the consumer acquires 

48 These issues are further discussed in the "Efficiency" section. 
49 Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts 
for the supply of digital content, COM/2015/0634 final - 2015/0287 (COD). 
50 See the "Coherence" section. 

26 

 
 
 
                                                 
physical possession of the goods" under Article 9(2)(b)51. However, difficulties in interpreting 
the notion of mixed purposes contracts and in assessing the main purpose of a contract have 
been  raised  by  different  categories  of  stakeholders  in  the  consultation  process  of  this 
evaluation. 

Stakeholders  highlight  the  practical  difficulties  of  calculating  the  diminished  value  of  the 
returned goods (Article 14(2)), particularly in the textiles, electronics and electric products 
sectors.  Factors  that  affect  the  calculation  include  possible  disagreements  between  the 
consumer and trader as to how extensively the good is used. Given the consumer preference 
for brand new goods, traders often viewed the returned goods as having negligible value. This 
issue is further discussed in the "Efficiency" chapter. 

Dutch  stakeholders  raised  specific  concerns  as  regards  the  application  of  Article  27  of  the 
CRD (inertia selling) to water supply. In particular, they reported that two Dutch first instance 
courts  in  recent  judgments  stated  that,  under  Article  27  of  the  CRD,  a  consumer  who  had 
moved in a new home and used water without having informed (or concluded a contract with) 
the water supply company is not obliged to pay for the water used in the absence of a contract. 
Dutch  water  suppliers  seem  however  to  be  obliged,  under  national  law,  to  supply  water  to 
households and a court order seems necessary for them to stop doing so.  

It should be underlined that Article 27 of the CRD exempts consumers from the obligation to 
provide any consideration in case of unsolicited supply of products prohibited by Article 5(5) 
and point 29 of Annex I of the UCPD. Prima facie, the fulfilment of a legal obligation cannot 
be regarded as prohibited "inertia selling" in the sense of point 29 of Annex I of the UCPD, 
and  therefore  the  remedy  provided  under  Article  27  CRD  would  not  apply  under  such 
circumstances.  

Furthermore, some concerns were raised regarding the application of the CRD provisions to 
online  platforms,  particularly  concerning  the  assessment  of  whether  platforms  can  be 
qualified  as  traders  under  the  CRD  and  are  therefore  subject  to  comply  with  the  pre-
contractual information obligations thereof. 

6.1.3. Compliance by traders  

One  indicator  of  compliance  analysed  in  the  CRD  study  is  the  number  of  consumer 
complaints and the aspects raised in those complaints; the limits of the available data do not 
allow  definitive  conclusions,  but  emerging  trends  may  constitute  a  valid  proxy  for  the 
orientation of the actions of awareness and enforcement.   

Amongst the reasons for complaints to the ECCs by consumers on cross-border purchases, the 
right of withdrawal was the most reported in the CRD survey, with 79% of the ECCs stating 
that  consumers  had  complained  often  about  the  right  of  withdrawal.  The  second  most 
mentioned  reason  for  complaints  was  reimbursement,  followed  by  delivery  and  passing  of 
risk.  Available  data  from  the  ECC-Net  database  suggests  that  the  greatest  numbers  of 
complaints concerning the CRD are related to product and service issues, over third of which 

51 Unless rules for multiple goods ordered in a single order, multiple lots of goods and regular delivery of goods 
apply. 

27 

 
 
 
                                                 
related to unsolicited supply, followed by complaints related to the delivery.52 Data from the 
harmonised  complaints  and  enquiries  database  of  the  Commission53  also  show  that  the 
greatest  number  of  complaints  that  can  be  related  to  the  CRD  concerned  the  right  of 
withdrawal, followed by lack of information.54 Complaints concerning delivery of goods and 
provision of services55 and indication of price rank the highest; however, available data does 
not allow concluding that these always represent a complaint related to a CRD provision. 

Consumers were asked in the CRD survey about different aspects of compliance by traders. 
Most of the responses highlighted issues related to compliance with the right of withdrawal; 
fewer consumers highlighted issues with formal requirements and fees. 

In  the  on-line  public  consultation,  47%  of  consumer  respondents  reported  that  they  had 
experienced problems in dealing with traders in the past year. The most frequently reported 
problem  was  that  the  trader  had  not  provided  key  information.  The  majority  of  consumers 
who  had  experienced  problems  reported  not  having  managed  to  solve  their  most  serious 
problem at all. 25% managed to solve their problem at least to some extent and 18% managed 
to solve it fully. 

6.1.3.1. Compliance with pre-contractual information and formal requirements 

In  order  to  assess  compliance  with  the  different  information  requirements,  the  CRD  survey 
asked consumers how much information they receive concerning the different aspects covered 
in Articles 5 and 6 CRD. Overall, the results match with the results of the mystery shopping 
study, i.e. consumers received a fair to a great amount of information about the characteristics 
of the product and the accepted means of payment, although with differences at country level. 
Out of the consumers responding to the online survey, 38% stated that they did  not receive 
much information about the trader. This was also found in the mystery shopping carried out 
within  the  Consumer  market  study  for  the  Fitness  Check,56    where  information  on  how  to 
contact the trader was, on average, found to be less available, particularly for the provision of 
paid digital content. The CRD sweep also found incomplete or unclear details about the trader 
in 34% of websites checked. Additionally, consumers did not receive much information about 
accessing out of court complaint and redress mechanisms.  

52 Dataset contains 38108 complaints of 2015, of which 12466 could be identified as being related to the CRD 
(or its predecessor directives: Directive 85/577/EEC on contracts negotiated away from business premises – "off-
premises  contracts"  –  and  Directive  97/7/EC  on  contracts  concluded  through  the  means  of  distance 
communication – "distance contracts") 
53  The  complaints  data  base  implements  the  Commission  Recommendation  on  the  use  of  a  harmonised 
methodology  for  classifying  and  reporting  consumer  complaints  and  enquiries  of  May  2010.  It  contains 
consumer  complaints  and  enquiries  (i.e.  requests  for  information)  collected  from  third-party  complaint  bodies 
(national  authorities,  consumer  organisations  ADR  bodies,  etc.).  The  number  of  participating  countries  and 
entities is steadily growing and currently there is data from 77 consumer organisations from 23 Member States 
and 1 EEA country (Norway). Data is provided on a voluntary basis; therefore the database cannot be considered 
as complete.  
54  Data  made  available  to  the  Commission  show  a  total  number  of  over  1,1  million  cases  of  complaints  from 
14/06/2014, of which around 100,000 complaints could be identified as being most likely related to CRD and 
thus taken into account in these calculations. 
55 It should be noted that there are several categories concerning delivery and provision of services, and together 
those  categories  represent  one  of  the  biggest  share  of  the  total  complaints.  However,  having  no  further 
information,  it  can  be  assumed  that  the  category  'non-delivery'  includes  complaints  related  to  issues  that  fall 
outside the scope of the CRD.  
56  Consumer  Market  Study  to  support  the  Fitness  Check  of  EU  consumer  and  marketing  law,  available  at: 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 

28 

 
 
 
                                                 
The  mystery  shopping  also  found  that  consumers  felt  quite  well  informed  about  digital 
content  interoperability  and  functionality  and  found  the  information  clear,  while  they  felt 
relatively  less  informed  on  other  characteristics  of  the  digital  content,  such  as,  for  instance, 
whether an internet connection was required and software updates available.  

In  2014  the  Commission  coordinated  the  "sweep  on  commercial  guarantees  in  consumer 
electronics", within which the CPC authorities checked in total 437 websites selling consumer 
electronics57. 54% (235) of these websites were found to be non-compliant with EU consumer 
law  regarding  information  obligations  about  the  statutory  and  commercial  guarantees.  The 
reminder of the existence of the legal guarantee of conformity for goods before the consumer 
is  bound  by  a  distance  contract  –  as  required  by  Article  6(1)(l)  of  CRD  –  was  found  to  be 
lacking in 174 websites (ca. 40%). This sweep in particular raised discussions regarding the 
place  where  this  reminder  of  the  existence  of  the  legal  guarantee  has  to  be  provided  on  a 
website.  In  the  Commission  services'  views,  if  traders  provide  pre-contractual  information 
only in the terms and conditions on their website, this is not in compliance with Article 6(1).  

Furthermore,  the  findings  of  the  mystery  shopping  provided  insights  into  the  traders’ 
compliance with the CRD pre-contractual requirements regarding the conclusion of distance 
contracts.  In  particular,  it  was  found  that,  before  placing  their  orders,  almost  all  mystery 
shoppers  were  clearly  informed  about  the  total  price  of  the  product,  while  54%-70%  of 
mystery shoppers were informed about its main characteristics. 

As regards compliance with  Article 8(2) of the CRD, whereby traders are required to  make 
the  consumer  aware,  in  a  clear  and  prominent  manner,  of  the  fact  that  his  order  implies  an 
obligation to pay, a dedicated order confirmation button was found to be present in almost all 
mystery  shopping  cases,  although  with  some  differences  at  country  level.  The  use  of  this 
visual tool was found to be effective, given that most mystery shoppers evaluated its use as 
(very) clear and indicated that they clearly understood that pressing the button would finalize 
the purchase. 

In  almost  all  mystery  shopping  cases,  there  were  no  extra  charges  based  on  the  method  of 
payment.  Dependent  on  the  product  type,  mystery  shoppers  were  relatively  often  offered 
selectable  options  that  would  cost  them  more.  However,  only  about  one  fifth  of  the 
investigated  traders  pre-ticked  these  selectable  options.  In  general,  when  additional  cost 
applied,  for  instance  for  the  selected  payment  means,  or  for  the  delivery,  consumers  could 
easily get the relevant information. 

6.1.3.2. Compliance with  pre-contractual information requirements and rules 
on the right of withdrawal 

o  Compliance with information requirements on the right of withdrawal 

As regards specific pre-contractual information requirements on the right of withdrawal, the 
trader must provide clear and comprehensible information before the consumer is bound by a 
distance contract. The results from the mystery shopping show, however, that this information 
is  often  missing,  with  some  differences  depending  on  the  type  of  contract  as  shown  below. 

57 http://ec.europa.eu/consumers/enforcement/sweeps/guarantees/index_en.htm  

29 

 
 
 
 
                                                 
For tangible goods, traders have to specify the right to withdraw from the contract within 14 
days  after  delivery.  This  was  done  by  about  half  of  the  investigated  traders.  However, 
consumers could easily found information on return procedures in case of sales contracts, and 
despite the lack of information they found the withdrawal procedures satisfactory. However, 
although  traders  grant  consumers  their  right  to  withdraw,  the  lack  of  information  on 
withdrawal can prevent consumers from exercising their rights.  

Traders of digital content have to inform consumers that they have a right to withdraw from 
the  contract  before  downloading  the  content  and  that  they  lose  this  right  when  the 
performance  of  the  contract  has  begun  with  their  express  consent  under  Article  16(m).  The 
mystery shopping run within the Consumer market study for the Fitness check58 showed that 
only  23%  of  traders  for  music  downloads,  33%  of  the traders  offering  one-off  purchases  of 
security  software  and  44%  of  the  traders  of  security  software  subscriptions  provided  this 
information.  The  interviews  with  traders  performed  for  the  CRD  study  confirmed  such 
finding, showing that 42% of consumers were not notified that they would lose their right of 
withdrawal if they started downloading or streaming digital content.  

The  mystery  shopping  task  also  revealed  that  withdrawal  forms  were  quite  difficult  to  find 
and in 25% of all online shops tested for tangible goods, such information was not available. 
This was also reflected in the responses given by consumers to the CRD survey, where 59% 
of consumers stated they were not given access to a withdrawal form.  

This also applied to digital content. According to the mystery shopping, half of all software 
traders (52%) did not provide withdrawal forms. 

The  2015  CRD  sweep  carried  out  by  the  CPC  network  also  found  similar  results  across  all 
type  of  contracts.  Irregularities  were  confirmed  in  436  (63%  of  a  total  697)  cases,  with 
websites  missing  or  providing  unclear  or  incomprehensible  information  on  the  right  of 
withdrawal from a transaction. For example, websites did not contain a relevant withdrawal 
form  while  it  was  their  legal  obligation  to  do  so,  or  did  not  inform  the  consumer  about  the 
exact number of days available to him/her to withdraw from an online transaction. 

o  Compliance with rules on withdrawal  

Concerning  refunds,  the  mystery  shopping  results  show  that  most  cases  led  to  a  full 
reimbursement. This number was, however,  higher for tangible goods and security software 
than  for  music  downloads.  Refunds  were  almost  always  given  in  the  form  of  money.  For 
tangible goods, the delivery costs were only reimbursed by half the traders. 59 

The  online public consultation  provided  some  opinions  from  the  traders’  perspective  on  the 
right  of  withdrawal  and  compliance.  The  CRD  study  mentions  the  contribution  from  one 
stakeholder  highlighting  that  the  exceptions  to  the  right  of  withdrawal  may  be  difficult  to 
apply  in  reality,  in  particular  those  relating  to  digital  content.  According  to  one  trader, 
informing  the  consumer  that  he  would  lose  their  right  of  withdrawal  can  “worsen  the 
shopping experience”.  

58  Consumer  Market  Study  to  support  the  Fitness  Check  of  EU  consumer  and  marketing  law  available  at: 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 
59  The  CRD  mystery  shopping  included  341  assessments,  distributed  (fairly  equally)  across  the  8  target 
countries.  A  slightly  lower  number  of  assessments  was  made  for  digital  content  (149  in  total;  78  for  security 
software and 71 for music) compared to tangible goods (192 in total, 96 per product).  

30 

 
 
 
                                                 
Out  of  the  respondents  to  the  CRD  survey  who  indicated  having  faced  difficulties  in 
exercising  their  right  of  withdrawal,  the  majority  signalled  that  they  had  difficulties  in 
contacting  the  relevant  traders  to  notify  them  about  their  decision  to  withdraw;  this  issue is 
also  confirmed  by  the  consumer  associations  in  the  interviews,  particularly  with  regard  to 
traders using social media platforms to sell products.  

6.1.3.3 Compliance by sector 

By sector, the level of compliance also varies. Interviews performed for the CRD study have 
revealed  a  lack  of  compliance  in  respect  of  online  subscriptions  and  monthly  contracts  for 
mobile  phones  whereas  a  review  of  the  literature  has  found  issues  of  compliance  with  the 
energy  sector.  The  EESC,  in  its  evaluation  of  the  CRD,  also  identified  compliance  issues 
among  traders  to  prevail  in  a  few  particularly  problematic  sectors  such  as  distance  sellers 
(telephone  and  catalogue),  energy  (gas/electricity)  and  telecommunications  sectors.  Other 
cases  noted  by  the  CRD  study  refer  to  the  formal  requirements  for  contracts  by 
telecommunication companies offered by phone (in line with Article 8(6)). 

According  to  the  CRD  sweep,  irregularities  in  compliance  occur  across  different  sectors, 
types  of  retailers  and  types  of  contract  (sales  of  goods,  service  provisions  or  public 
utilities/digital content provisions). The latest Consumer Scoreboard, however, has concluded 
that  the  largest  differences  in  market  performance  between  EU  countries  are  found  on  the 
markets  for  electricity  services,  water  supply,  railway  transport,  mortgages  and  mobile 
telephone  services.  These  markets  appear  to  be  particularly  badly  performing  in  those  EU 
Member  States  where  they  face  limited  cross-border  competition,  insufficient  structural 
reforms and absence of effective enforcement also of consumer protection rules60. The review 
done in the CRD study of the complaints dealt with by the ECC-Network has also shown that 
almost one in every two complaints relates to the sectors of recreation and culture (24%) or 
transport  (20%);  the  rest  of  the  complaints  are  however  spread  amongst  a  wide  range  of 
sectors,  with  17%  of  all  cases  labelled  under  the  category  of  'miscellaneous  goods  and 
services'.   

Lack of compliance in markets having often an oligopolistic structure may point to a lack of 
enforcement or insufficient disincentives in terms of penalties for big companies operating in 
such markets.  

In  2015-2016  the  CPC  network  carried  out  a  coordinated  enforcement  action  to  improve 
consumer  information  in  the  car  rental  sector61:  this  joint  enforcement  action  targeted  large 
businesses  representing  65%  of  all  private  car  rentals  in  the  EU.62  A  dialogue  was  set  up 
between the CPC authorities, led by the UK Competition and Markets Authority, and the top 

60  2016  edition  of  the  Consumer  Markets  Scoreboard  -  Making  markets  work  for  consumers,  available  at: 
http://ec.europa.eu/consumers/consumer_evidence/consumer_scoreboards/12_edition/index_en.htm;  direct  link 
to 
document: 
http://ec.europa.eu/consumers/consumer_evidence/consumer_scoreboards/12_edition/docs/consumer_markets_s
coreboard_2016_en.pdf   
61http://ec.europa.eu/consumers/enforcement/cross-
border_enforcement_cooperation/coordinated_enforcement_actions_en.htm  
62  Commission  Staff  Working  Document,  Impact  Assessment  accompanying  the  document  Proposal  for  a 
Regulation  of  the  European  Parliament  and  of  the  Council  on  cooperation  between  national  authorities 
responsible for the enforcement of consumer protection laws, SWD(2016) 164 final, p. 18. 

the 

31 

 
 
 
                                                 
five car rental companies operating in the EU to ensure that their practices comply with EU 
consumer  law,  including  the  CRD  (right  of  the  consumer,  pursuant  to  Article  6(1)(e),  to  be 
informed  on  the  total  price  and  charges  of  the  service;  right  of  the  consumer,  pursuant  to 
Article 6(6), not to bear any additional charges of which the trader has not duly informed at 
pre-contractual stage; right of the consumer, pursuant to Article 22, to get reimbursed of any 
extra-payment  which  the  trader  may  have  imposed  through  pre-ticked  boxes  or  without 
otherwise  seeking  the  consumer's  express  consent).  Thanks  to  this  action,  the  companies 
concerned aligned their car rental practices to EU consumer law requirements, by improving 
their information policies and making their terms and conditions fairer. 

6.1.4. Administrative and judicial enforcement  

In relation to administrative enforcement, the survey asked the national competent authorities 
about the number and type of enforcement actions brought in their Member State for breaches 
of  national  rules  transposing  the  CRD:  based  on  their  replies,  it  appears  that  the  level  of 
enforcement activities varies significantly across the Member States. 

According to the CRD survey, stakeholder views on the enforcement abilities of the national 
authorities were rather mixed.  

Furthermore, the online public consultation asked about the effectiveness of various consumer 
redress  and  enforcement  mechanisms  in  ensuring  the  enforcement  of  EU  consumer  and 
marketing  law, including the CRD.  Most public authorities (61%)  and business respondents 
(57%)  agreed  that  injunction  orders  issued  by  authorities  or  courts  to  stop  infringements  of 
consumer rights are very effective or rather effective. In contrast, 42% of consumers and only 
20% of consumer associations agree that such a mechanism is effective.  A few respondents 
stressed that the differences in the way in which the rules were enforced in different Member 
States could lead to inequalities and to traders being unwilling to sell their goods and services 
cross-border.   

As indicated in the CRD study, since the CRD only came into force in June 2014, it appears 
that, so far, only a limited number of CRD-related cases have been decided by national judges 
or  administrative  authorities63.  Based  on  data  available  to  the  Commission's  contractors  in 
relation  to  the  on-going  creation  of  a  unified  Consumer  Law  Database,  a  total  of  90 
CRD-related cases decided by national courts or authorities have been so far identified. Out of 
them, no less than 35 come from just 4 Member States (IT 14 cases, DE 9, LV 8 and NL 4).  

The survey asked national authorities for their views on the specific CRD provisions which 
are most likely to require enforcement action. 83% of the national authorities took the view 
that  pre-contractual  information  requirements  for  distance  and  off-premises  contracts  are 
likely to require enforcement actions. The analysis of the 90 CRD-related cases identified in 
the context of the setting up of the future  Consumer Law Database  shows that  a significant 
percentage  of  such  cases  relates  to  Article  6  CRD  on  pre-contractual  information 
requirements  for  distance  and  off-premises  contracts.  The  vast  majority  of  identified  cases 
concerned the rules on the right of withdrawal (85, out of which 30 related to Article 9). 22 of 

63 Moreover, since it takes some time for cases to be referred up to higher courts and for decisions to be reached, 
there are only a relatively small number of cases where court judgements have been upheld.  

32 

 
 
 
                                                 
the  90  identified  cases  related  to  Article  8  (formal  requirements  for  distance  contracts), 
whereas in relation to  Article 2(1) and (2), 9 cases  were identified  (definitions of consumer 
and trader). To date, there have been only a few cases (7 in total) in respect of Article 19 (fees 
for  the  use  of  means  of  payment),  Article  20  (passing  of  risk),  Article  21  (right  of  the 
consumer  to  contact  the  trader,  in  relation  to  the  contract,  at  a  basic  telephone  line  rate) 
Article  22  (ban  on  "pre-ticked  boxes"),  and  Article  27  (inertia  selling),  these  latter  mainly 
concern energy companies in Italy.  

6.1.5. Penalties 

Article 24(1) stipulates that Member States shall lay down the rules on penalties applicable to 
infringements  of  the  national  provisions  implementing  the  CRD  and  shall  take  all  measures 
necessary  to  ensure  that  they  are  implemented.  The  penalties  provided  must  be  effective, 
proportionate and dissuasive. The transposition check carried out by the Commission services 
has highlighted some issues concerning the level of penalties and also the fact that penalties 
do  not  always  cover  breaches  of  all  CRD  relevant  provisions.  To  this  regard,  bilateral 
dialogues  with  concerned  Members  States  continue  in  order  to  ensure  the  full  compliance 
with the Directive and avoid inconsistencies that may hinder its effectiveness. Moreover, the 
huge divergence and overall relatively low level of penalties imposable at national level might 
also be considered through legislative intervention, as further explained below.      

As  also  highlighted  in  the  Fitness  Check  evaluation,  there  is  considerable  variation 
concerning  the  public  enforcement  of  EU  consumer  law  due  to  institutional  diversity, 
distribution  of  powers  between  central,  regional  and  local  authorities,  funding,  staffing  and 
powers of consumer protection authorities etc. The penalties imposed by national authorities 
generally take the form of administrative fines; however, some Member States, for example 
the UK, Ireland and Germany, also make certain infringements subject to criminal sanctions. 
However,  criminal  sanctions  are  generally  reserved  for  serious  infringements,  for  instance 
where  breaches  of  the  CRD  were  part  of  a  larger  pattern  of  fraudulent  or  misleading 
behaviour by traders. 

The  level  of  penalties  currently  available  to  the  consumer  enforcement  authorities  varies 
enormously.  Some  national  authorities  are  able  to  impose  higher  penalties,  especially  for 
breaches  that  constitute  market  distorting  behaviour.  However,  there  is  a  lack  of  evidence 
concerning the impact of the variance in penalties on the level of compliance by traders which 
needs to be further investigated in the light of a possible follow-up to the Fitness Check and 
CRD  evaluation.  Some  national  authorities  responding  to  the  CRD  survey  were  concerned 
that  the  maximum  level  of  penalties  they  are  able  to  impose  is  not  sufficient  to  deter  from 
non-compliance. Nevertheless, instead of pointing at the level of penalties, the findings of the 
consultation carried out by the CRD contractor highlighted the lack of awareness by traders 
about the content of the CRD as the main reason for non-compliance.  

When asked for further details as to the level of penalties, information provided by national 
authorities indicates that the level of penalties varies significantly, ranging from modest fixed 
sums to high penalties, which are either set at a high fixed sum or connected to the trader's 
annual turnover, whichever is highest. As examples of lower penalties, the national authority 
in Bulgaria can issue penalties ranging from 100-3000 BGN (approx. 51-1535 EUR) and in 

33 

 
 
 
 
Lithuania from 144-1448 EUR. As examples of higher penalties, the national authority in the 
Netherlands can issue penalties up to 900 000 EUR or 1% of the annual turnover, in Cyprus 
up to 200 000 EUR or 5% of the annual turnover and in Latvia up to 100 000 EUR or 10% of 
the annual turnover. In Italy the penalties can be up to 5 million EUR. 64  

Nevertheless,  even  if  a  Member  State  features  a  high  maximum  penalty,  the  actual  penalty 
issued might not be as significant. As was emphasised by Swedish and Irish respondents, the 
level of penalties are often modest, unless market-distorting behaviour can be identified and 
proven. For example, in Sweden a maximum penalty of 5 million SEK (512 017 EUR) can be 
issued, but only for very significant breaches of the CRD with a significant impact for large 
numbers  of  consumers.  However,  the  CRD  study  has  also  identified  several  cases  in  which 
high penalties were issued. For example, in 2015 a penalty of 6 million EUR was issued by 
the  AGCM,  the  Italian  Competition  Authority,  on  seven  energy  producers  in  Italy  for 
violating the rules set out in the Italian Consumer Code concerning the CRD and the UCPD. 

In  conclusion,  the  information  gathered  on  the  level  of  penalties  available  to  national 
authorities  for  sanctioning  traders'  breaches  of  obligations  stemming  from  the  CRD  has 
revealed considerable differences in the transposition of Article 24 which requires "effective, 
proportionate  and  dissuasive"  penalties  to  be  established  in  the  Member  States.  This  may 
affect  the  effective  implementation  of  the  CRD  across  all  Member  States,  in  particular  in 
cases cross-border operations which breach CRD provisions.  

6.2. Efficiency 

6.2.1. Costs and benefits – general analysis 

Efficiency  considers  whether  the  Directive  has  achieved  its  objectives  and  outputs  at  a 
reasonable cost.  

The evaluation assessed the following questions: 

  What  are  the  costs  and  benefits  (monetary  or  non-monetary)  associated  with  the 

application of Directive 2011/83/EU in the Member States? 

  What  are  the  burden  and  benefits  for  businesses  arising  from  obligations  on  traders 

under the Directive?  

  Which market sectors are affected by the provisions of the Directive? The assessment 
should identify which sectors have adapted more efficiently to the new requirements 
and  which  ones  are  characterized  by  more  frequent  breaches  of  the  Directive's 
provisions.  

  What are the specific challenges to SMEs, in particular micro enterprises, with respect 

to the implementation of the Directive?  

  What, if any, specific provisions in the Directive can be identified that make a cost-
effective implementation more difficult and hamper the maximisation of the benefits?  

64  For  further  details  on  national  enforcement  systems  and  penalties,  see  the  CRD  study  available  at: 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 

34 

 
 
 
 
                                                 
The  evaluation  has  focused  on  costs  and  benefits  associated  with  the  application  of  the 
Directive,  highlighting  those  provisions  that  make  a  cost-effective  implementation  more 
difficult,  which  might  hamper  the  maximisation  of  the  benefits  and  create  unnecessary  or 
excessive regulatory burden. The evaluation has also addressed specific challenges to SMEs, 
in particular micro enterprises, with respect to the implementation of the Directive.  

The contractor for the CRD study has not been able to gather quantitative estimates of costs 
and  benefits  of  the  implementation  of  the  CRD,  except  from  anecdotal  examples.  In 
particular,  stakeholders  consulted  in  the  framework  of  the  CRD  study  could  not  provide 
quantitative  estimations  on  the  impacts  of  the  CRD  as  they  could  not  establish  causality 
between  increase  in  sales  and  CRD,  on  the  side  of  benefits;  yet,  some  examples  of  costs 
related to specific provisions have been provided within the study. In addition, some traders 
were  hesitant  to  share  data  that  they  regarded  as  commercially  sensitive.  Furthermore  the 
study concludes that the literature review has been sparse on the costs and benefits due to the 
short  time  since  the  Directive  has  been  transposed.  In  particular,  there  is  not  available 
quantitative or qualitative data as regards possible decrease of compliance costs for businesses 
in cross-border trade, or availability of wider range of goods and services at lower prices for 
consumers.   

Lack of quantitative data made a comparison with and analysis of the impacts anticipated in 
the Impact assessment (IA) of the original proposal difficult. In addition, the contractor had 
difficulties to establish the baseline, which further impeded the comparison.  

Thus the analysis is based on qualitative information obtained in the framework of the CRD 
study through different available sources, such as the interviews and the online survey carried 
out  as  part  of  the  stakeholder  consultation  of  the  CRD  study,  the  European  Economic  and 
Social Committee's Information Report on the CRD, the online public consultation in support 
of  the  Fitness  Check  and  the  CRD  evaluation,  meetings  of  the  Fitness  Check  stakeholder 
group and submissions of stakeholders.  

The limited available data does not allow definitive conclusions about the level of costs faced 
by businesses in ensuring compliance with the new Directive. All surveyed businesses were 
reluctant to provide financial estimates of such costs, and there was scarce monetary evidence 
available.  However,  according  to  the  different  evidence  sources  the  CRD  study  has 
considered, traders reported burdens deriving from specific provisions. In particular, the CRD 
study showed that the Directive has generally been found to be beneficial by consumers and 
their  associations,  while  traders'  view  were  divided,  with  a  higher  number  of  respondents 
considering that the benefits of the Directives do not outweigh the costs related to the CRD 
implementation, especially for SMEs. The greatest costs are attributed to the pre-contractual 
information requirements and the right of withdrawal even though they were not quantified. 

6.2.2 Impacts on traders 

In  the  CRD  survey  traders  were  asked  about  the  different  types  of  benefits  that  may  have 
arisen from complying with the rules laid down in the CRD. Almost one third of the traders 
responding did not identify any benefits. Among reported benefits, traders mainly referred to 
the fact that consumers whose rights are respected come back and shop again with the same 
trader,  and  bring  or  attract  other  consumers.  This  was  also  confirmed  in  the  online  public 

35 

 
 
 
 
consultation, where a large majority of companies and business associations were of the view 
that  the  benefits  from  complying  with  consumer  protection  rules  are  that  consumers  whose 
rights are respected come back and bring/attract other consumers, whereas consumers whose 
rights are not respected discourage other consumers (damage to reputation). 

In detailed responses to the CRD survey, traders highlighted that the Directive had improved 
customer service and after-sales care within competitive markets, which in turn had helped to 
build  consumer  trust.  However,  some  traders  felt  the  CRD  was  better  suited  to  larger 
retailers/traders  who  can  build  in  such  requirements  into  their  processes  and  policies  more 
easily, and that small traders were already too burdened by legislation and having to compete 
on  a  small  profit  margin  in  competitive  markets,  which  can  easily  be  eroded  if  there  is  an 
increase in the percentage of consumers that exercise their right of withdrawal.   

As  regards  specific  provisions  with  a  positive  impact,  the  majority  of  traders  in  the  CRD 
survey  pointed  to  the  consumers'  right  to  get  adequate  information  about  the  goods  and  the 
service. This was found in the CRD study to be in line with the findings of the online public 
consultation,  where  CRD  provisions  such  as  the  right  to  get  information  about  goods  and 
services  were  regarded  as  beneficial  by  the  majority  of  respondents  in  all  stakeholder 
categories, together with the right of withdrawal. Although seen as beneficial, a majority of 
traders in the online survey agreed that pre-contractual information requirements had greatly 
or  just  increased  the  costs,  followed  by  formal  requirements  (55%)  and  reimbursement 
policies  stemming  from  the  right  of  withdrawal  (44%).  Such  data  should  also  be  read  in 
conjunction  with  the  findings  of  the  Fitness  Check  evaluation  regarding  overlaps  of 
information  requirements  under  EU  consumer  and  marketing  law  concluding  that  there  is  a 
need  to  consider  reducing  the  information  requirements  applying  at  the  advertising  stage 
provided under Article 7(4) UCPD, in view of the fact that traders must provide the same and 
more detailed information at the pre-contractual stage under the CRD.65   

Trade associations responding to the CRD survey also considered pre-contractual information 
requirements for distance and off-premises contracts the provisions with the greatest negative 
impacts on competitiveness, both on domestic and cross-border trade.  

On the other hand, however, rules on reimbursement, inertia selling and exceptions from the 
right  of  withdrawal  were  viewed  by  trade  association  as  having  strengthened  traders’ 
competitiveness  in  both domestic and cross-border trade. Through  the interviews performed 
within the CRD study, it was suggested that the main benefits in this regard relate to increased 
regulatory certainty. 

A  high  number  of  respondents  to  the  CRD  survey  were  unable  to  say  whether  the 
requirements  to  provide  information  about  digital  content  had  been  beneficial  to  their 
business, but this may reflect the fact that many traders responding to the survey sell goods 
rather  than  digital  content.  In  this  respect,  business  associations  taking  part  in  the  online 
public  consultation  were  also  not  convinced  about  the  benefits  to  consumers  of  the  right  of 
withdrawal for downloading or streaming of digital content and of the right to get information 
about its functionality and interoperability. 

65 Fitness Check Report available at http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 

36 

 
 
 
                                                 
Only a few national authorities responded to the survey. These reported that they had received 
mostly  negative  feedback  from  traders  or  feedback  that  there  was  no  impact  on  the  traders' 
competitiveness.  

When  traders  were  asked  to  compare  the  costs  and  the  benefits  of  the  CRD,  their  opinions 
were quite divided. However, a higher number of respondents thought that the costs exceeded 
the benefits.   

Q23 do the benefits to your company from consumer related 
legislation exceed the costs of its requirements?  (N = 153) 

Yes, the benefits outweight the costs by a significant
amount

7% 

Yes, the benefits outweight the costs but only
moderately

16% 

No, benefits and costs are similar in magnitude

No, the costs are slightly larger than the benefits

10% 

11% 

No, the costs far exceed the benefits

24% 

No opinion

Don’t know 

16% 

15% 

0%

5%

10%

15%

20%

25%

Traders’ views on benefits and costs (CRD study – Section on Efficiency) 

The EESC report on the evaluation of the CRD concluded that, according to roughly a third of 
respondents, the compliance costs for  business have  increased since June 2014. For 20%  of 
respondents, the costs have stayed the same. More than a third did not know.  

The  consultation  undertaken  for  the  CRD  study  has  highlighted  costs  to  traders  from 
particular  provisions  of  the  Directive,  such  as  pre-contractual  information  and  formal 
requirements, the right of withdrawal and rules on reimbursements. 

According to the general Eurobarometer data66, in 2016 a large majority of traders agreed that 
in their own country compliance with consumer legislation is easy (71%) and that the costs of 
compliance  are  reasonable  (66%). When  it  comes  to  traders  operating  cross-border,  55%  of 
them agreed that compliance in other EU countries was easy and 48% agreed that the related 
costs were reasonable.  

6.2.2.1. Impact of pre-contractual information requirements 

As  previously  highlighted,  according  to  the  CRD  study  a  majority  of  traders  and  trade 
associations  think  that  pre-contractual  information  requirements  have  increased  their  costs. 
They  report  initial  one-off  costs  in  ensuring  CRD  compliance,  such  as  familiarisation  costs 

66 Source: Survey on retailers’ attitudes towards cross-border trade and consumer protection (2016) to be used in 
the forthcoming Consumer Conditions Scoreboard 2017 (expected publication – summer 2017). 

37 

 
 
 
 
 
 
                                                 
with  the  legislation,  management  time  to  check  the  requirements  and  to  ensure  compliance 
which may require getting external legal advice, updating websites also by the means of web 
designers,  and  taking  corresponding  actions  to  update  internal  processes  and  procedures 
relating to the transaction process, e.g. delivery, returns and right of withdrawal duration. 

However,  these  are  likely  to  be  costs  incurred  by  traders  only  at  the  beginning  of  the 
compliance  process;  furthermore,  when  asked  about  cost  estimates,  these  could  not  be 
provided. 

Some  of  the  interviewees  in  the  CRD  study  felt  that  the  pre-contractual  information 
requirements were imposing an unnecessary burden on traders. This burden was also stressed 
within  the  REFIT  stakeholder  group  with  particular  regard  to  overlapping  information 
requirement under different EU consumer and marketing directives.  

Similarly, in the online public consultation, a majority of respondents in all categories agreed 
that  information  requirements  currently  included  in  the  Unfair  Commercial  Practices 
Directive, Price Indication Directive and Consumer Rights Directive should be regrouped and 
streamlined; the same conclusion was reached in the workshop on consumer information held 
during the Consumer Summit. Stakeholders consulted for the CRD study also argued that pre-
contractual information requirements establish an excessive amount of information that can be 
overwhelming  for  consumers  and  noted  that  information  requirements  are  not  read  by  the 
majority  of  consumers,  hence  proving  a  lack  of  efficiency  and  effectiveness  of  concerned 
information  requirements.  However,  regarding  the  need  to  reduce  current  information 
requirements, traders could not indicate which specific requirements are deemed unnecessary 
and  burdensome.  This  might  suggest  that  rather  than  a  problem  of  excessive  information 
requirements  to  be  reduced  -  given  that  the  evaluation  has  not  identified  particular 
inconsistencies - it would be more appropriate to improve the presentation of information; this 
is  confirmed  by  the  positive  results  of  best  practices  in  some  sectors  simplifying  the  way 
information is presented.  

The CRD study reported concerns among a few stakeholders that the amount of information 
required  is  sometimes  felt  as  disproportional  to  the  product  being  offered,  particularly  in 
respect of low-value consumer goods.  

Consulted stakeholders indicated that as regards off-premises contracts, traders face costs not 
only  because  of  a  substantial  increase  of  and  a  high  level  of  detail  in  the  information 
requirements under the CRD, but also because information must be provided on paper or, if 
the consumer agrees, on another durable medium (Article 7(1) CRD). 

6.2.2.2. Impact of the right of withdrawal and reimbursement procedures 

Different stakeholders pointed to unintended and unexpected effects from the application of 
some CRD rules that may deserve further investigation in light of follow-up actions, since it 
has  not  been  possible  to  reach  definitive  conclusions  on  the  actual  impact  of  such  reported 
difficulties and whether an intervention would be needed. 

In  particular,  several  stakeholders  consulted  for  the  CRD  study  expressed  concerns  that  the 
Directive allows consumers to withdraw from distance and off-premises contracts even after 
having  used  the  goods  to  an  extent  going  beyond  what  is  necessary  to  establish  the  nature, 
characteristics and functioning of the goods. In this case, the consumer does not lose the right 
to  withdraw,  but  Article  14(2)  makes  him  liable  'for  any  diminished  value  of  the  goods'. 

38 

 
 
 
Traders  consulted  for  the  CRD  study  noted  that  this  leaves  scope  to  abuse  the  CRD,  with 
consumers purchasing items with the intent of returning them after use. In this respect, in May 
2016, the market research institute Norstat conducted a consumer survey on the issue of the 
return of used goods. The consumer survey showed that 23% of the respondents believe that it 
is acceptable to return used goods. In 2013, when the survey was conducted for the first time, 
only  11%  believed  that  it  was  acceptable  to  return  used  goods.  According  to  the  Danish 
Chamber of Commerce such data shows a clear change of attitude among consumers.67 

In  January  2017,  the  Danish  Chamber  of  Commerce  conducted  a  survey  among  their 
members on the implementation of Article 14(2). Only 1 out of the 18 responding businesses 
said that, as a matter of principle, it would always assess and estimate the depreciation of the 
product as a consequence of use by the consumer. Nearly all the businesses responding lacked 
the resources to assess and report the impairment of each returned used product. As a result, 
they  said  that  they  tended  to  refund  the  full amount.  This  was  partly  also  to  avoid  negative 
reviews by consumers. Also the Dutch Retailers' association raised concerns in the framework 
of the REFIT stakeholder platform about consumers' maintaining the right to withdraw from a 
contract even if they have used the good.  

Feedback  was  also  received  from  some  stakeholders,  through  the  interviews  for  the  CRD 
study,  about  practical  difficulties  of  calculating  the  diminished  value  of  used  goods  and 
difficulties  arising  in  case  of  disagreement  between  the  consumer  and  trader  as  to  how  the 
good has been used and about its diminished value. If consumer and trader disagree about the 
diminished value, traders would have to keep the returned good to keep evidence in case of 
judicial litigation. This adds costs and further diminishes the value of the good. 

In  addition,  traders,  and  in  particular  SMEs,  report  problems  as  regards  re-use  of  returned 
goods. Many businesses do not sell used goods and simply dispose of them which, in addition 
to the economic loss, is detrimental also from an environmental point of view.  

The  Commission  services  consider  that  if  consumers  at  a  large  scale  exercise  their  right  of 
withdrawal even after having used a good more than allowed, it would indeed risk distorting 
the  right  balance  between  a  high  level  of  consumer  protection  and  the  competitiveness  of 
enterprises pursued by the Directive in accordance with its recital 468. More robust economic 
data on the volume of returned used goods and the losses suffered by business would however 
be necessary to justify an amendment of the CRD to remove the consumer's right to withdraw 
in cases a good has been used. In addition, Commission services consider that authorities and 
courts  could  in  the  practice  apply  and  interpret  the  relevant  provisions  having  regard  in 
particular  to  recital  47  of  the  CRD  which  states  that  the  consumer  should  only  handle  and 
inspect a good in the same manner as he would be allowed to do it in a shop.    

Concerns  regarding  the  trader's  obligation  to  reimburse  all  payments  received  from  the 
consumer without undue delay and in any case not later than 14 days after the consumer has 

67  The  survey  was  conducted  on  the  basis  of  a  representative  cross  section  of  the  Danish  population.  1010 
responses were collected and examined. Data has been examined in regard to socio-demographic characteristics 
(e.g. gender, age, educational background, region) to ensure representativeness and validity. 
68 Recital 4 of the CRD reads: "In accordance with Article 26(2) TFEU, the internal market is to comprise an 
area without internal frontiers in which the free movement of goods and services and freedom of establishment 
are ensured. The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary 
for the promotion of a real consumer internal market striking the right balance between a high level of consumer 
protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity". 

39 

 
 
 
                                                 
informed about his withdrawal from the contract (Article 13(1)) and related risks of financial 
losses have been reported in the CRD study as regards the fact that traders have to reimburse 
consumers without having the possibility to inspect the returned goods once the consumer has 
supplied evidence of having sent them back. 

In  the  stakeholder  consultation  for  the  CRD  study,  stakeholders  also  reported  two  specific 
situations where the application of the right of withdrawal seems to be problematic in terms of 
burden for traders.   

In particular, the German Federal Supreme Court has determined that consumers have a right 
of  withdrawal  from  distance  sales  contracts  for  heating  oil.69  The  German  Federal  Supreme 
Court  stated  that  the  objective  of  the  exception  from  the  right  of  withdrawal  regarding 
purchases  of  goods  for  which  price  is  dependent  on  fluctuations  in  the  financial  markets 
(Article 16(b) of the CRD) is to limit speculation70; thus this exception requires a speculative 
element  of  the  contract  that  cannot  be  found  in  contracts  for  heating  oil.  The  German 
association  representing  the  heating  oil  retailers,  who  are  mainly  small  companies,  has 
claimed that this interpretation is excessively narrow, and has resulted in a significant increase 
in cancellations of such contracts in the months following the judgment, due to the attention it 
received in the German media. The association representing the sector fears that in the mid- or 
long-term, the application of a right of withdrawal in their sector would bear the risk of many 
small  or  very  small  companies  to  suffer  losses  endangering  their  existence.  The  price  of 
heating oil in consumer contracts is generally the price as it stands at the time of the order. If, 
however,  the  price  has  decreased  between  the  time  of  the  order  and  the  time  of  delivery, 
consumers may be tempted to cancel their contracts and place a new order at a cheaper price.  

Such  use  of  the  right  of  withdrawal  was  found  by  consulted  stakeholders  to  be  particularly 
problematic for Small and Medium-sized companies (SMEs), because they buy oil at current 
prices in line with their order volumes only to find subsequently that they cannot deliver it, or 
have to deliver it at lower prices, and distributors do not have a right of withdrawal vis à vis 
refineries.  

Another example provided in the CRD study refers to costs from the right of withdrawal faced 
by  online  platforms  for  auction  purposes  that  do  not  benefit  from  the  exception  under 
Article 16(k) CRD, which excludes public auctions  from the right  of withdrawal. Consulted 
traders pointed to an ‘unfair situation’ where online-only auction platforms have to provide a 
right  of  withdrawal  but  public  auctions  do  not.  In  the  CRD  consultation,  an  estimate  of  the 
costs from the right of withdrawal was provided by an online auction platform that reported 
"costs  for  handling  the  right  of  withdrawal  requests  roughly  amounting  to  1.5  to  2  million 
euros, and a loss of profit of 5.9 million euros out of the foreseeable 7 million euro volume of 
sales cancelled for withdrawal in 2017". 

BGH, 

Court), 

Bundesgerichtshof 

69 
(Federal 
http://juris.bundesgerichtshof.de/cgi-
bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=71692&pos=0&anz=1  
70 The contract in the case that was brought to court pre-dated the implementation of the CRD and the court thus 
decided on the basis of the provisions transposing the 1997 Distance Sales Directive. However, the wording of 
the relevant provision in the German Civil Code that implements the CRD is basically the same as that which 
implemented  the  Distance  Sales  Directive,  suggesting  that  the  Federal  Supreme  Court's  ruling  may  be  upheld 
also under the national provisions transposing the CRD. 

-  VIII 

249/14, 

2015 

June 

ZR 

17 

40 

 
 
 
                                                 
 
Stakeholders  consulted  for  the  CRD  study  have  also  mentioned  losses  associated  with  the 
right  of  withdrawal  from  the  provision  of  digital  content.  In  particular,  in  the  context  of 
streaming and downloading digital content, it has been highlighted by traders that prompting 
the consumers to give express consent that their right of withdrawal will be lost if the service 
has begun (Article 16(m) CRD) is sometimes not feasible during the ordering process. As a 
result, some traders still apply a full 14 days refund policy rather than applying the eligible 
exceptions under Article 16(m) CRD, in order to avoid losing customers.  

6.2.3. Impact for SMEs 

SMEs' responses to the CRD survey as to whether the requirements of the CRD had had an 
impact  on  costs  for  their  businesses  do  not  vary  significantly  from  the  general  group  of 
traders.  Among  those  requirements  noted  to  be  the  most  costly  are  the  provision  of  pre-
contractual  information  and  formal  requirements71.  The  responses  by  SMEs  and  micro-
enterprises (including the self-employed) as to whether the benefits from the CRD exceed the 
costs  of  its  requirements  are  very  similar  to  those  in  respect  of  the  general  population  of 
traders.  This  may  be  because  most  traders  responding  to  the  survey  are  SMEs  or  micro-
enterprises. 

Whilst 22% of SMEs and micro-enterprises expressed the view that the benefits outweighed 
the costs by a moderate to a significant amount, 40% of respondents noted that the costs were 
greater than the benefits. Indeed, SMEs appear to be less aware of the benefits of respecting 
consumer rights, as shown by the evaluation study of the awareness campaign conducted by 
the European Commission from 2014 to 2016.  

Similarly,  the  EESC’s  report  concluded  that  the  costs  for  SMEs  under  the  CRD  were 
disproportionate to the cost of compliance for big businesses. 

Through the interviews conducted for the CRD study, feedback on the extent to which SMEs 
perceived the Directive to be administratively burdensome was also received. Among SMEs 
interviewed,  there  was  a  perception  that  the  costs  of  some  aspects  of  CRD  implementation 
were high, especially the costs related to the right of withdrawal, which must include credit 
card costs and shipping. The CRD study highlighted a particular concern among traders about 
the  total  costs  of  returns  for  high  value  items  sold  online.  The  CRD  study  indicates  that 
working with low profit margins in online retail was considered to put micro and small firms 
at  greater  financial  risk  resulting  from  consumers  exercising  their  right  of  withdrawal  and 
stemming  from  the  return  of  used  goods,  as  discussed  above.  Thus,  the  main  costs from  an 
SME  perspective  was  found  in  the CRD  study  to  be  the administrative  burden  arising  from 
changes  to  the  rules  in  respect  of  returns,  rather  than  updating  information  and  policies  on 
their websites.   

was 

This 

confirmed 

71 
http://www.eurochambres.eu/custom/Paper_EU_burden_tracker_-_CRD_-_Better_Regulation_-2016-00192-
01.pdf.  Besides  its  conclusion  regarding  pre-contractual  information  requirements,  this  paper  finds  that  the 
definition of off-premises contracts is too broad and that it is difficult to distinguish between sales and service 
contracts in the case of mixed purpose contracts with the risk of providing wrong information. 

Eurochambres' 

burden 

tracker 

report: 

by 

41 

 
 
 
                                                 
6.2.4. Impact for national authorities 

National competent authorities were also consulted in the framework of the CRD study about 
the costs of transposition. Most of them reported moderate administrative costs to transpose 
the  Directive.  Comments  provided  by  authorities  indicated  that  the  costs  of  transposing  the 
CRD  were  similar to  the costs of transposing other directives and  no additional budget was 
needed.  There  were  some  limited  costs  associated  with  the  human  resources  needed  to 
transpose  the  Directive.  In  this  regard,  in  order  to  determine  how  the  CRD  should  be 
transposed, some countries also organised stakeholder discussions at national level.  

National  authorities  have  rather  experienced  higher  costs  associated  with  raising  awareness 
about  the  new  requirements  in  the  CRD,  and  in  relation  to  enforcement  activities  such  as 
checking  compliance  of  traders’  websites,  drawing  attention  to  areas  of  non-compliance, 
taking appropriate actions in case of non-compliance.  

6.2.5. Impact for sectors 

In the CRD study, an analysis of the impacts on different sectors has also been undertaken by 
type  of  contract,  i.e.  for  goods,  services  and  digital  content  separately.  It  was  found  that 
traders selling goods appear to be more convinced that the Directive brings benefits. Traders 
selling  digital  content  report  limited  benefits.  These  results  should  be  read  with  caution, 
however, due to the low level of responses.   

As  indicated  in  the  CRD  study,  although  digital  content  is  an  area  newly  covered  by  EU 
consumer  law,  it  is  expected  that  sectors  providing  digital  content  are  affected  more  by  the 
Directive than other sectors; surprisingly some stakeholders consulted in the framework of the 
study stated that they did not see that many major changes compared with earlier legislation, 
this might be related to the fact that digital content is an area where awareness of rules was 
found  to  be  low  and  compliance  also  seems  problematic  (as  highlighted  in  the  Section  on 
Effectiveness). 

Looking at the different levels of compliance could also be a useful indicator of the scale of 
costs or difficulties encountered by traders in complying with the CRD requirements. In this 
regard, the CRD study indicates that the findings of the 2015 CRD sweep showed  a similar 
pattern of irregularities across different sectors, multi-purpose or specialised retailers and type 
of  contract  (good,  service,  digital  content).  Overall,  among  the  websites  of  specialised 
retailers with confirmed irregularities, 29% were websites selling clothes, shoes and fashion 
accessories; 15% electronic goods and household appliances; and 12% furnishing and home 
decoration.  

6.3. Coherence  

6.3.1. Coherence between the CRD and other EU legislation – general analysis  

Coherence  concerns  the  extent  to  which  the  different  provisions  of  the  CRD  are  consistent 
with other EU legislation.  

The evaluation assessed the following questions: 

  To  what  extent is this  intervention coherent  with  other  interventions  which  have 

42 

 
 
 
similar objectives? 

  To what extent is the intervention coherent with wider EU policy? 
  To  what  extent  is  the  intervention  coherent  with  measures  and  actions  to 
strengthen consumer protections at national level in relevant areas and markets? 

The relevant interventions or interplays can be divided into four categories: (1) consumer and 
marketing legislation, (2) other horizontal legislation, (3) sector-specific legislation, (4) new 
proposals.  The  evaluation  has  identified  the  following  instruments  as  a  source  of  potential 
overlaps  or  inconsistencies  with  the  CRD:  the  Unfair  Commercial  Practices  Directive 
2005/29/EC, the Price Indication Directive 98/6/EC, the Injunctions Directive 2009/22/EC,72 
the Directive 2013/11/EU on consumer Alternative Dispute Resolution (ADR),73 the Services 
Directive 2006/123/EC,74 the E-Commerce Directive 2000/31/EC,75 sector-specific legislation 
inter alia in the area of electronic communications, energy, passenger transport and financial 
services,  and  new  proposals  in  the  area  of  digital  contracts  and  consumer  protection 
cooperation. 

Overall, the CRD is deemed coherent with other EU legislation and no major problems have 
been identified. As evident from the graph below, in response to the questionnaire submitted 
for  this  evaluation,  66%  of  national  competent  authorities  deemed  the  CRD  to  be 
complementary  to  other  existing  measures  and  actions.  Nevertheless,  stakeholders  that 
responded  to  the  online  public  consultation  of  the  Fitness  Check  of  EU  Consumer  and 
Marketing Law highlighted the need to simplify and consolidate the information requirements 
in the CRD which overlap with the information requirements in other EU legislation. Similar 
calls for consolidation were voiced by stakeholders at the European Consumer Summit 2016. 
The detailed overview in the sections below will address the possible areas for amendment. 

72 Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the 
protection of consumers' interests 
73 Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute 
resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC 
74 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the 
internal market 
75 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')  

43 

 
 
 
                                                 
Q30 To what extent has Directive 2011/83/EU proved complementary to 
existing measures and actions to strengthen consumer protection in your 
Member State in relevant areas and markets? (N = 38) 

11% 

55% 

5% 

13% 

16% 

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Very complementary Moderately complementary No complementary

Don’t know  No opinion

National competent authorities: To what extent has the CRD proved complementary to existing measures 
and actions to strengthen consumer protection in your MS? CRD study – Section on Coherence 

6.3.2. Interplay with consumer and marketing legislation 

6.3.2.1. Unfair Commercial Practices Directive (UCPD) and Price Indication 
Directive (PID) 

The  UCPD  protects  consumers  against  unfair  commercial  practices,  which  are  contrary  to 
requirements of professional diligence and which are likely to cause the consumer to take a 
transactional  decision  that  they  would  not  have  taken  otherwise.  Article  7(4)  of  the  UCPD, 
stipulates that whenever a commercial communication includes a description of a product and 
its  price,  the  trader  is  required  to  provide  information,  if  not  already  apparent  from  the 
context, about:  

 

 
 
 
 

the main characteristics of the product, to an extent appropriate to the communication 
medium (i.e. considering the limitation of space and time to provide information) and 
the product;  
the trader's identity and geographical address; 
the full price; 
the existence of the right of withdrawal (where applicable); 
the  arrangements  for  payment,  delivery,  performance  and  the  complaint  handling 
policy (if such arrangements depart from the requirements of professional diligence). 

All of the information requirements in Article 7(4) UCPD can be found in Article 5 and 6 of 
the CRD. However, the CRD information requirements apply at the pre-contractual stage of a 
transaction,  i.e.  when  the  consumer  visits  a  brick-and-mortar  shop  or  looks  at  the  product 
descriptions  in  an  online  shop,  whereas  the  UCPD  information  requirements  apply  to  any 
"invitation to purchase", i.e. a commercial communication which indicates the characteristics 
of  the  product  and  the  price  in  a  way  appropriate  to  the  means  of  the  commercial 
communication used and thereby enables the consumer to make a purchase.   

The relationship between the information requirements in the CRD and in Article 7(4) of the 
UCPD  has  been  addressed  in  the  existing  guidance  documents  for  both  directives76. 

76  Guidance  on  the  Implementation/Application  of  Directive  2005/29/EC  on  Unfair  Commercial  Practices, 
25.5.2016, SWD(2016) 163 final and DG JUST Guidance document on the CRD, June 2014. 

44 

 
 
 
 
 
                                                 
Nevertheless,  the  information  requirements  in  the  UCPD  and  the  CRD  could  be  further 
streamlined  and  it  could  be  clarified  that  the current requirements  in  the  UCPD  apply  at  an 
earlier stage of the transaction than the requirements under the CRD.  

The PID deals with the indication of the selling price and the price per unit of measurement of 
products  offered  by  traders  to  consumers  in  order  to  improve  consumer  information  and  to 
facilitate  comparison  of  prices.  As  a  result,  there  are  overlaps  between  the  information 
requirements in the CRD, UCPD and PID concerning the price. The requirements in Article 5 
and  6  of  the  CRD  to  provide  the  total  price  of  the  goods  or  services  correspond  to  the 
requirement in Article 7(4) UCPD to indicate the full price and to the requirement in Article 3 
of  the  PID  to  indicate the  selling  price.  Only  the  "unit  price"  requirement  of  the  PID  is  not 
included in the CRD. 

6.3.2.2. Injunctions Directive (ID) 

The  ID  requires  Member  States  to  ensure  in  their  national  legal  systems  the  possibility  of 
using  an  injunctions  procedure.  The  injunctions  procedure  in  the  ID  aims  at  stopping 
infringements  that  harm  the  collective  interests  of  consumers  as  protected  by  EU  consumer 
law  instruments  that  are  listed  in  Annex  I  to  the  Directive.  As  the  ID  predates  the  CRD,  it 
does  not  explicitly  refer  to  the  CRD  in  its  Annex  I,  but  instead  refers  to  its  predecessors 
regarding off-premises and distance contracts (Directive 85/577/EEC and Directive 97/7/EC). 
Since Article 31 of the CRD establishes that "references to the repealed Directives shall be 
construed as references to this Directive and shall be read in accordance with the correlation 
table set out in Annex II", the CRD is therefore covered by the ID. For clarity, the CRD could 
be explicitly stipulated in the Annex.  

In parallel to the ID, the CRD contains more general enforcement provisions, under which the 
injunctions procedure is one of the possible enforcement procedures.  The "qualified entities" 
enabled to initiate injunctions are defined more generally under the ID than in the CRD. 

The  above-mentioned  inconsistences  could  be  further  addressed  in  the  context  of  broader 
initiatives aimed at improving the effective enforcement of EU consumer law.  

6.3.2.3. Consumer Alternative Dispute Resolution (ADR) Directive 

Directive  2013/11/EU  on  consumer  ADR  ensures  that  EU  consumers  have  access  to 
alternative dispute resolution (ADR) entities for resolving their disputes with EU traders out-
of-court  in  fast,  fair  and  inexpensive  way.  The  Directive  applies  to  disputes  concerning 
contractual  obligations  stemming  from  sales  contracts  or  service  contracts  in  virtually  all 
retail  sectors  (only  disputes  regarding  health  and  higher  education  are  excluded  from  the 
Directive's scope) and irrespective of whether the product or service was purchased online or 
offline  and  whether  the  trader  is  established  in  the  consumer’s  Member  State  or  in  another 
Member  State.  Member  States  are  required  to  establish  lists  of  ADR  entities  whose 
compliance  with  the  Directive's  binding  quality  requirements  they  have  positively  assessed. 
The Directive's binding quality requirements for ADR entities and procedures apply only to 
such listed "ADR entities". 

Article 13 establishes an obligation for traders to inform consumers about the ADR entity by 
which  the  trader  is  covered.  Pursuant  to  Article  13(1)  traders  shall  inform  the  consumers 
about the ADR entity or ADR entities by which those traders are covered, when those traders 
commit  to  or  are  obliged  to  use  those  entities  to  resolve  disputes  with  consumers.  That 

45 

 
 
 
information shall include the website address of the relevant ADR entity or ADR entities. The 
information  shall  be  provided  in  a  clear,  comprehensible  and  easily  accessible  way.  Article 
13(2)  further  specifies  that  the  information  shall  be  made  available  on  the  trader's  website 
where  one  exists,  and,  if  applicable,  in  the  general  terms  and  conditions  of  sales  or  service 
contracts between the trader and a consumer. In addition, Article 13(3) stipulates that in cases 
where  the  dispute  could  not  be  settled  following  the  complaint  submitted  directly  by  the 
consumer to the trader, the trader shall provide the consumer with the information referred to 
in Article 13(1) specifying whether he will make use of the relevant ADR entities to settle the 
dispute. That information shall be provided on paper or on another durable medium. 

In parallel, the CRD's pre-contractual information requirements for distance and off-premises 
contracts include in Article 6(1)(t) an obligation for traders to provide information on "where 
applicable,  the  possibility  of  having  recourse  to  an  out-of-court  complaint  and  redress 
mechanism,  to  which  the  trader  is  subject,  and  the  methods  for  having  access  to  it." 
Article 6(1)(t) refers to any out-of-court complaint and redress mechanism to which the trader 
is subject, irrespective of whether such mechanism qualifies as listed "ADR entity" or not. For 
contracts other than distance and off-premises contracts, the CRD does not establish any pre-
contractual 
redress 
mechanisms.  

regarding  out-of-court  complaint  and 

requirements 

information 

The  scopes  of  the  information  requirements  in  Article  13  of  Directive  2013/11/EU  and  in 
Article 6(1)(t) of the CRD partially overlap but do not conflict. However,  in order to ensure 
coherence between the information requirements in  both  instruments, their content could be 
further aligned. 

6.3.3. Interplay with other horizontal legislation 

Services Directive and E-Commerce Directive 

Article 6(8) of the CRD regulates the relationship between the information obligations for off-
premises  and  distance  contracts  in  the  CRD,  the  Services  Directive  and  the  E-Commerce 
Directive.  It  stipulates  that  the information  requirements  in  the  CRD  are  additional  to  those 
included in the Services Directive and the E-Commerce Directive, and that the Member States 
are  not  prevented  from  imposing  additional  requirements  in  accordance  with  those  two 
Directives. If a provision from those two Directives on the "content and the manner in which 
the information is to be provided" conflicts with a provision of the CRD, the latter prevails. 

Concerning overlapping information requirements, the CRD includes similar or more detailed 
requirements with respect to the description of the product (main characteristics, functionality 
and  interoperability  of  digital  content)  and  price.  Providing  this  information  in  accordance 
with the CRD is therefore sufficient to also comply with the requirements of the E-Commerce 
and  Services  Directives.  There  is  one  exception  –  the  E-Commerce  Directive  additionally 
requires  specific  information  about  promotional  offers  (Article  6).  The  E-Commerce  and 
Services  Directives  also  require  information  about  general  terms  and  conditions  (T&Cs). 
Since  these  requirements  are  not  further  specified,  they  should  not  impact  on  the  trader's 
obligation to provide the specific information required by the CRD, which could form part of 
general  T&Cs.  Furthermore,  the  E-Commerce  Directive  requires  this  information  to  be 
provided in a way that enables the recipient to "store and reproduce" it. This requirement goes 

46 

 
 
 
 
 
beyond  the  requirements  in  Article  6(1)  and  8(1)  of  the  CRD.  Finally,  all  three  Directives 
require  information  about  any  applicable  code  of  conduct  and  out-of-court  complaint  and 
redress mechanisms. The provision of this information according to the CRD should suffice to 
also satisfy the relevant requirements in the other two Directives. In conclusion, there are no 
considerable problems with coherence between the CRD and the Services and  E-Commerce 
Directives. 

6.3.4. Interplay with sector-specific legislation 

There are no considerable incoherencies with sector-specific legislation due to its exemption 
in certain areas from the CRD's scope in Article 3(3) and the sector-specific lex specialis rule 
in  Article  3(2),  which  stipulates  that  in  case  of  conflicts  with  legislation  governing  specific 
sectors, the sector-specific legislation shall prevail instead of the CRD. The CRD is therefore 
without  prejudice  to  the  application  of  fundamental  rights  related  legal  requirements,  for 
example,  concerning  the  Data  Protection  Directive77  and  ePrivacy  Directive78,  which  are 
particularly relevant in online sales and advertising  for issues  such  as  data subjects' right to 
information  about  the  processing  of  their  personal  data,  the  creation  of  profiles  based  on 
online identifiers provided by data subjects' devices, applications, tools and protocols, such as 
internet  protocol  addresses  and  cookie  identifiers  and  data  subjects'  consent  to  the  tracking 
and  use  of  personal  data  supplied  or  collected.  Furthermore,  additional  information 
requirements are set out, for example, in Directive 2002/22/EC on electronic communications 
services79,  Directive  2010/13/EU  on  audio-visual  media  services,  Directive  2009/72/EC  on 
electricity,  Directive  2009/73/EC  on  natural  gas  and  Directive  2012/27/EU  on  energy 
efficiency. Moreover, despite the exemption of financial services from the scope of the CRD 
and  the  sector-specific  rules  in  Directive  2002/65/EC  on  distance  marketing  of  consumer 
financial services and Directive 2008/48/EC on consumer credit agreements apply, the CRD 
is  nevertheless  applicable  when  financial  services  are  incorporated  within  a  sales  or  service 
contract, i.e. through ancillary contracts.  

Research undertaken for the evaluation has revealed that there have been concerns concerning 
compliance  with  the  CRD  in  the  energy,  electronic  communications  services  and  passenger 
transport  sectors.  However,  the  problems  are  not  necessarily  connected  to  the  lack  of 
coherence  between  the  sector-specific  legislation  and  the  CRD.  Nevertheless,  the  online 
public  consultation  revealed  a  lack  of  awareness  by  traders  and  consumers  about  the 
complementary application of sector-specific legislation, which could contribute to problems 
in  practice.  However,  this  lack  of  awareness  was  not  identified  specifically  regarding  the 
relationship  between  sector-specific  legislation  and  the  CRD,  but  rather  regarding  the 
relationship  between  sector-specific  legislation  and  EU  consumer  and  marketing  law  more 
broadly. 

77 Directive 95/46/EC will be replaced as from 25 of May 2018 by the Regulation (EU) 2016/679 (the General 
Data Protection Regulation). 
78 Directive 2002/58/EC. The Commission submitted on 10 of January 2017 a proposal for a Regulation of the 
European Parliament and of the Council concerning the respect of private life and the protection of personal data 
in  electronic  communications  and  repealing  Directive  2002/58/EC  (Regulation  on  Privacy  and  Electronic 
Communications) 
79 The 2016 Proposal for a Recast Directive includes an amendment to the Recital that clarifies the interplay with 
the CRD. 

47 

 
 
 
                                                 
6.3.5. Interplay with new proposals 

Pending  final  adoption,  the  assessment  of  the  interplay  between  the  CRD  and  the  new  EU 
legislative  proposals  is  without  prejudice  to  the  changes  that  were  introduced  after  this 
evaluation was carried out. 

6.3.5.1. Digital Contracts Proposal (DCDP) 

In  2015,  the  European  Commission  adopted  the  Digital  Single  Market  Strategy  setting  the 
creation of a Digital Single Market as one of its key priorities to generate additional growth in 
Europe. In this context, two legislative proposals have been put forward: (i) a proposal for a 
Directive on certain aspects concerning contracts for the supply of digital content, and (ii) a 
proposal  for  a  Directive  on  certain  aspects  concerning  contracts  for  the  online and  other 
distance sales of goods.   

The Directive on contracts for the supply of digital content (DCDP) aims to regulate certain 
aspects  of  the  supply  of  digital  content  to  consumers,  with  a  particular  focus  on  rules  on 
conformity  of  digital  content  with  the  contract.  The  DCDP  will  thus  complement  the  CRD, 
which  does  not  regulate  issues  related  to  conformity  with  the  contract.  However,  several 
intersections with the CRD should be carefully reviewed to ensure consistency. In particular, 
the scope of the CRD should  be  aligned in  order to  ensure that  both  directives  apply  to  the 
same digital content and services as raised by Member States.80 Equally it should be further 
clarified  that  the  CRD  covers  digital  content  and  service  contracts  for  which  the  consumer 
does  not  pay  a  price.  Furthermore,  it  could  be  considered  whether  the  pre-contractual 
information requirements specific to digital content and the rules on the right of withdrawal 
for  digital  content  and  services  in  the  CRD  should  be  revised  as  a  result  of  the  alignment. 
These issues are further addressed in the "Relevance" section of this document. 

6.3.5.2. Review of the Consumer Protection Cooperation (CPC) Regulation 

In  2016,  the  European  Commission  adopted  a  proposal  to  review  Regulation  (EC)  No 
2006/2004  on  consumer  protection  cooperation  (the  CPC  Regulation)81,  which  lays  down  a 
cooperation  framework  to  allow  national  authorities  from  the  Member  States  to  jointly 
address  breaches  of  consumer  rules  when  the  trader  and  the  consumer  are  established  in 
different countries. The Annex to the CPC Regulation lists the EU consumer legislation that is 
covered  by  its  scope  of  application.  The  current  Annex  to  the  CPC  Regulation  references 
Council  Directive  85/577/EEC  doorstep  selling  and  Directive  97/7/EC  on  distance  selling, 
which,  subject  to  Article  31  of  the  CRD  shall  be  construed  as  references  to  the  CRD. 
However, the review of the CPC Regulation proposes to explicitly add the CRD to the Annex 
to the Regulation, which will ensure coherence between the two instruments. 

6.4. Relevance 

80 According to Point 6 of the Council Conclusions of 2 June 2016 on the policy debate for the DCP, the EC is 
invited to include in its CRD Report an evaluation of the application of the CRD to all types of contracts for the 
supply  of  digital  content  covered  by  the  DCP,  with  a  view  to  help  in  the  assessment  of  further  needs  for 
alignment between the CRD and the DCDP.  
81  25.5.2016,  COM(2016)  283  final,  http://ec.europa.eu/consumers/consumer_rights/unfair-trade/docs/cpc-
revision-proposal_en.pdf 

48 

 
 
 
                                                 
 
6.4.1. The objectives of the CRD 

Relevance  concerns  the  relationship  between  the  needs  of  society  and  the  objectives  of  the 
legislative instrument. The assessment considers whether the objectives  set  by the Directive 
remain relevant, namely, the objective of achieving a high level of consumer protection across 
the EU and the objective of contributing to the proper functioning of the internal market by 
approximating  certain  aspects  of  Member  States'  laws,  regulations  and  administrative 
provisions concerning contracts concluded between consumers and traders.  

The evaluation assessed the following questions: 

  Do the objectives of Directive (still) correspond to the needs within the EU?   
  To what extent have the needs of consumer protection changed since the adoption 

of the Directive?  
Is the scope of the Directive still appropriate? 

 

As  indicated  in  Article  1  of  the  Directive,  the  overall  objective  of  the  CRD  is  to  achieve  a 
high level of consumer protection across the EU and to contribute to the proper functioning of 
the internal market by approximating certain aspects of Member States' laws, regulations and 
administrative provisions concerning contracts concluded between consumers and traders.  

Recital 5 of the Preamble to the Directive stresses that the cross-border potential of distance 
selling, which should be one of the main tangible results of the internal market, had not been 
fully exploited. The full harmonisation of consumer information and the right of withdrawal 
in distance and off-premises contracts under the CRD were intended to contribute to reaching 
this potential, by ensuring a high level of consumer protection and a better functioning of the 
business-to-consumer internal market.  

As highlighted in Recital 7 to the Directive, full harmonisation of some key regulatory aspects 
should considerably increase legal certainty for both consumers and traders, who should all be 
able  to  rely  on  a  single  regulatory  framework  based  on  clearly  defined  legal  concepts.  The 
effects  of  such  harmonisation  should  be  to  eliminate  the  barriers  stemming  from  the 
fragmentation of the rules and to complete the internal market in this area, while at the same 
time consumers should enjoy a high level of protection across the EU.    

As  concerns  e-commerce  transactions,  the  CRD  provisions  on  distance  contracts  for  goods, 
services  and  digital  content  are  particularly  relevant  within  the  framework  of  the  Digital 
Single Market policy of the European Commission. The objectives of ensuring a high level of 
consumer protection and a functioning internal market in online contracts are likely to become 
even more relevant in the future, as online purchases by consumers are expected to increase. 
This  will  further  enhance  the  importance  of  the  correct  application  of  the  pre-contractual 
information and the right of withdrawal for distance sales.  

6.4.2. Stakeholders’ views: Relevance of the objectives of the CRD   

According to the available information, stakeholders consider that the objectives of the CRD 
remain relevant.  

49 

 
 
 
 
In  the  online  survey  that  was  part  of  the  stakeholder  consultation  for  the  CRD  study, 
consumer  associations  and  trade  associations  were asked  if  they  think  that the  objectives  of 
the  CRD  are  still  relevant  to  the  needs  of  consumers  and  traders  within  the  EU.  64%  of 
respondents  from  consumer  associations  and  55%  of  respondents  from  trade  associations 
replied that the objectives of the CRD are "very relevant", whilst the corresponding numbers 
saying  that  the  CRD  objectives  are  "slightly  relevant"  were  23%  and  27%.  It  follows  that, 
overall, 87% of respondents from consumer associations and 82% of respondents from trade 
associations consider the objectives of the CRD relevant. 

Stakeholders were also asked about the relevance of the Directive for the EESC's Information 
Report on the CRD, which found the following: 

"Consumer  and  business  associations  as  well  as  trade  unions  have  confirmed  the 
relevance and impact of this directive on commercial transactions between consumers 
and businesses including SMEs"82. 

The CRD study concludes that the objective of contributing to the proper functioning of the 
internal  market  by  approximating  certain  aspects  of  Member  States'  laws,  regulations  and 
administrative provisions concerning contracts remains relevant, mainly for two reasons:  

Distance and off-premises trade is only expected to increase in the future. As recent statistics 
suggest, there has been an increase in the % of people buying over the internet. This trend is 
only  expected  to  continue  in  the  future  which  reinforces  the  need  to  ensure  a  high  level  of 
consumer protection in the internal market; and  
The CRD provides a framework through a full harmonisation approach that companies could 
use to increase business opportunities in other Member States other than their own; thus most 
likely reducing the compliance costs when trading cross-border. 

Furthermore, according to the CRD study, the fact that the Directive includes pre-contractual 
information  requirements  and  a  right  of  withdrawal  for  contracts  for  digital  content  for  the 
first  time  within  the  context  of  EU  consumer  and  marketing  law  is  also  especially  relevant 
from the point of view of pursuing the objectives in the Digital Single Market Strategy. The 
CRD study points out, however, that on digital content there could be room for re-assessing 
some  of  the  CRD  rules  in  order  to  fully  correspond  to  the  current  needs  within  the  EU.  In 
particular, it raises questions related to the fact that the CRD does not apply to digital services 
not supplied against a price. In the online survey for the CRD study, stakeholders were also 
asked  if  they  would  consider  the  introduction  of  harmonised  rules  related  to  information 
requirements,  right  of  withdrawal  and  ranking  criteria  for  searches  in  connection  with 
transactions  that  do  not  infer  any  payment,  through  online  platforms,  as  beneficial  for 
increasing consumer trust. These questions are further discussed below.   

6.4.3. Should the scope of the Directive be amended in relation to digital content? 

Sales and service contracts against payment are covered by the CRD  

82  Section  4  of  the  EESC  Information  report:  Consumer  Rights  Directive  (evaluation)  http://www.eesc. 
europa.eu/?i=portal.en.int-opinions.39555  

50 

 
 
 
 
                                                 
The  CRD  is  applicable  to  sales  and  service  contracts  for  which  the  consumer  "pays  or 
undertakes to pay the price".83  

In the CRD Guidance84, the Commission services indicated that the reference to the  "price" 
refers to payment in money, (which also includes vouchers, gift cards or loyalty points with a 
specified monetary value). Consequently, the Directive does not apply to gifts or to services 
provided by the trader for free.   

Application of the CRD to contracts for 'free' online digital content 

Besides  sales  contracts  and  service  contracts,  the  Directive  also  covers  contracts  for  the 
supply of digital content which is not supplied on a tangible medium (hereinafter referred to 
as: "contracts for online digital content").  

Contracts for online digital content are not expressly defined in the CRD, but Recital 19 CRD 
explains that, for the purposes of this Directive, they are not classified as sales or as service 
contracts.  Recital  19  also  clarifies  that  the  Directive  considers  digital  content  supplied  on  a 
tangible medium, such as a CD or a DVD, as goods.  

The  CRD  Guidance85  points  out  that  the  CRD  does  not  mention  "payment"  for  these  other 
types of contracts. Accordingly, it suggests that contracts for online digital content are subject 
to the Directive even if they do not involve the payment of a price by the consumer. The CRD 
Guidance  provides  the  following  example:  "the  Directive  applies  to  a  contract  for  a  free 
download  of  a  game  from  an  app  store."  At  the  same  time,  since  the  CRD  applies  only  to 
"contracts concluded between consumers and traders"86, it should not apply to online digital 
content provided outside a contract.  

However, consultations with the dedicated Stakeholder Group for the Fitness Check and the 
CRD evaluation have indicated that there could be a case for clarifying the text of the CRD on 
this point. Notably, some stakeholders do not agree that contracts for online digital content are 
subject  to  the  Directive  if  they  do  not  involve  the  payment  of  a  price  by  the  consumer. 
Accordingly, as a follow-up action to the CRD evaluation and the Fitness Check it should be 
considered to further clarify the application of the CRD to "free" digital content in the text of 
the CRD, in order to provide more legal clarity.  

Contracts for digital services are only partly covered by the CRD 

Contracts  for  online  digital  content,  according  to  the  description  in  Recital  19  CRD,  cover 
products  such  as  movies  and  music.  By  contrast,  this  category  of  contracts  is  not  likely  to 
cover digital services such as cloud storage or webmail, where the main contractual obligation 
of  the  trader  is  not  to  provide  digital  content  but  rather  a  service  allowing  the  creation, 
processing,  storing  or  sharing  of  data,  including  personal  data  that  are  produced  by  the 
consumer.  Such  digital  services  rather  fall  within  the  definition  of  service  contracts  under 
Article  2(6)  CRD.  Therefore,  they  are  covered  by  the  CRD  rules  for  service  contracts  only 
when  provided  against  payment  of  a  price.  Accordingly,  when  contracts  for  digital  services 

83 Articles 2(5) and 2(6) CRD.  
84  See  page  8  of  the  Guidance,  issued  by  DG  JUST  in  June  2014,  available  at:  http://ec.europa.eu/ 
consumers/consumer_rights/rights-contracts/directive/index_en.htm 
85  Pages  8  and  64  of  the  Guidance,  available  at  http://ec.europa.eu/consumers/consumer_rights/rights-
contracts/directive/index_en.htm 
86 Articles 1 and 3 CRD. 

51 

 
 
 
                                                 
are  not  provided  against  payment  of  a  price  they  are  not  covered  by  the  CRD.  Moreover, 
information obligations on "functionality" and "interoperability" are limited to digital content 
(Article  6(1)(r)  and  (s))  –  i.e.  consumers  acquiring  digital  services  do  not  profit  from  these 
information despite the functional complementarity of digital content and digital service.  

Following the Council discussions on the proposal for a Directive on Contracts for the Supply 
of  Digital  Content  (DCDP)87  at  the  June  2016  JHA88  Council,  the  Ministers  invited  the 
Commission  to  examine  whether  contracts  for  digital  services  that  are  not  provided  against 
payment of a price should be brought within the scope of the CRD in the context of the CRD 
evaluation89.  Such  an  examination  will  need  to  take  into  account  the  outcome  of  the 
discussions in the Council and the European Parliament as regards the scope of the DCDP. In 
addition,  if  the  scope  of  the  CRD  is  extended  to  contracts  for  digital  services  that  are  not 
provided  against  payment  of  a  price,  it  should  also  be  assessed  whether  the  information 
requirements  on  "functionality"  and  "interoperability"  should  be  extended  to  such  contracts 
and whether new provisions on the right of withdrawal are needed. 

The interviews and the literature review for the CRD study indicate certain gaps in consumer 
protection  with  regard  to  free  online  services  to  which  the  rules  of  the  CRD  do  not  apply. 
Accordingly, in the online survey for the CRD study, stakeholders were asked the following: 

To what extent would the following EU consumer protection rules if fully harmonised 
at EU level be beneficial for increasing trust of consumers? 

o  Before  subscribing  to  a  free  online  service,  such  as  social  media  or  cloud 
service,  the  consumer  should  receive  the  same  information  as  currently 
received for paid services and for digital content90; 

o  When  subscribing  for  a  free  online  service,  such  as  social  media  or  cloud 
service,  the  consumer  should  have  a  right  of  withdrawal  from  such  a  service 
contract within 14 days from conclusion; 

On  question  1  (whether  pre-contractual  information  requirements  should  be  introduced  for 
free digital services), 82% of national competent authorities, 80% of consumer associations, 
85%  of  ECCs  and  35%  of  trade  associations  considered  this  (rather/very)  beneficial  for 
consumers.  

On question 2 (whether a right of withdrawal should be introduced for free digital services), 
71%  of  national  competent  authorities,  77%  of  consumer  associations,  77%  of  ECCs 
considered  this  (rather/very)  beneficial  for  consumers  and  36%  of  trade  associations 
considered it rather beneficial.  

87 Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts 
for the supply of digital content, COM/2015/0634 final - 2015/0287 (COD). 
88 Justice and Home Affairs 
89 Council of the European Union, Interinstitutional File 2015/0287(COD), 2 June 2016.  
90 The Data Protection Directive (95/46/EC) and as from 25 May 2018 the General Data Protection Regulation 
(Regulation (EU) 2016/679) already require the provision of additional specific information on the processing of 
personal data.  

52 

 
 
 
 
                                                 
In the same survey, in a question about consumer problems when accessing or buying digital 
content  online,  over  40%  of  respondents  reported  having  experienced  difficulties  when 
unsubscribing from free online services. 

Also amongst the members of the REFIT stakeholder group there was a considerable support 
for extending the scope of the CRD to (digital) services for which consumers provide personal 
data,  taking  in  to  account  the  outcome  of  negotiations  on  the  DCDP.  However,  there  were 
also strong concerns against such an extension, pointing to the potential additional burden on 
businesses  and  obstacle  to  development  of  new  services  it  may  create.  Overall,  members 
pleaded for consistency between data protection, consumer protection and contract law rules. 

This evaluation has found that, on digital content, there could be room for re-assessing some 
of  the  CRD  rules  in  order  to  better  match  current  needs  within  the  EU.  In  particular,  from 
available data there seems to be room for extending the scope of the Directive to cover digital 
services for free as a follow-up action of this evaluation. 

6.4.4. Relevance of specific CRD provisions   

In the online survey for the CRD study, consumers were asked which of the aspects regulated 
under  the  CRD  they  consider  the  most  important  when  they  make  purchases.  96%  of 
respondents indicate that having the price clear prior to placing the order is the most important 
aspect. The requirement that the trader shall seek the express consent of the consumer for any 
extra  payment  and  the  requirement  that,  for  online  sales,  the  trader  must  provide  specific 
information in a clear and prominent manner directly before the consumer places the order are 
also  considered  very  important  (indicated  as  of  "high  importance"  by  91  and  90  %  of  the 
respondents respectively). A table showing the full findings on this question can be found in 
the CRD study91 . 

Consumers were also asked about the relevance of different information requirements under 
current  EU  consumer  and  marketing  law  in  one  of  the  behavioural  experiments  in  the 
consumer  market  study  for  the  Fitness  Check.92  The  replies  indicated  that,  in  general,  the 
information  required  by  the  CRD  was  found  to  be  relevant,  with  information  related  to  the 
arrangements for payments and the total price being considered the most important one.  

In  the  discussion  held  within  the  REFIT  stakeholder  group,  there  was  large  support  for  the 
idea  of  allowing  traders  use  more  modern  manner  of  communication,  such  as  web-based 
contact  forms  as  an  alternative  to  e-mail  addresses  provided  that  they  grant  the  same 
functionality  as  e-mail.  Stakeholders  also  pointed  to  the  fact  that  the  fax  number  is  an 
outdated means of communication and it could therefore be deleted from the list of means of 
communication in Article 6(1)(c). 

6.4.5. Relevance of specific information requirements and possible need for a model form   

The different sources of information for the CRD study have questioned the added value of 
the pre-contractual information requirements as they currently stand in the CRD. During the 

91 CRD study available at: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 
92  Consumer  Market  Study  to  support  the  Fitness  Check  of  EU  consumer  and  marketing  law,  available  at 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 

53 

 
 
 
                                                 
interviews for the CRD study, it was suggested that the pre-contractual requirements should 
be reduced and/or simplified to the benefit of both traders and consumers.  

The EESC report notes that: 

"In the current round of consultations it has been suggested: 

(…)  

(i)  to  simplify  information  requirements,  focusing on  quality rather  than  quantity  of  the 
information  to  be  provided;  the  possibility  of  referencing  via  digital  links  should  be 
facilitated, without reducing the amount of information;"93 

On this the EESC report states: 

"One  solution  is  that  information  to  consumers  (Art  5)  would  not  be  completely 
indicated on the product; instead a reference to the website with further information 
could be indicated."94 

Stakeholders  attending  the  Consumer  Summit  agreed  that  pre-contractual  information 
requirements should always be included and easy to find on traders’ websites.   

The relevance for consumers of all the current pre-contractual information requirements has 
also  been  questioned.  Both  the  online  survey  for  the  CRD  study  and  the  CRD  behavioural 
experiment  carried  out  in  the  consumer  market  study  for  the  Fitness  Check95  indicate  that 
some  provisions,    notably  the  requirement  to  indicate  the  total  price,  are  more  relevant  to 
consumers than others.  

Furthermore,  findings  from  the  Fitness  Check  evaluation  suggest  that,  in  order  to  ensure 
coherence between the UCPD and the CRD, certain information obligations in Article 7(4) of 
the UCPD could be removed. Such information requirements would continue to apply at the 
later pre-contractual stage, as required by the CRD.  

Another aspect explored in the evaluation relates to the possibility of better implementing the 
current requirement in Articles 5(1) and 6(1) of the CRD to provide information in a clear and 
understandable  manner.  Data  available  from  the  online  public  consultation,  the  European 
Consumer  Summit,  the  CRD  study,  and  the  discussions  held  in  the  meetings  of  the  Fitness 
Check  Stakeholder  Group  point  to  the  need  to  simplify  the  way  information  is  presented  to 
consumers.  

(i)  of 

the  EESC 

93Section  5.2 
http://www.eesc.europa.eu/?i=portal.en.int-opinions.39555 
94Section  4.2.5.2  of  the  EESC  Information  report:  Consumer  Rights  Directive  (evaluation)  http://www.eesc. 
europa.eu/?i=portal.en.int-opinions.39555 
95  Consumer  Market  Study  to  support  the  Fitness  Check  of  EU  consumer  and  marketing  law,  available  at 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 

report:  Consumer  Rights  Directive 

(evaluation) 

Information 

54 

 
 
 
                                                 
The  adoption  of  a  model  form  to  improve  the  communication  of  the  CRD  information  to 
consumers  was  one  of  the  options  considered  in  the  Fitness  Check  evaluation.  In  the 
European  Consumer  Summit,  a  large  majority  of  the  participants  of  the  relevant  workshop 
supported  the  idea  of  developing  a  model  form  for  the  presentation  of  key  consumer 
information;  many  thought  that  the  use  of  the  form  should  be  voluntary.  Also  in  the  online 
consultation, the majority of consumers (58%) and consumer associations (75%) supported a 
uniform model for the presentation of the pre-contractual information. Similar conclusions are 
reached  in  the  information  report  of  the  EESC,  which  focused  on  the  possible  adoption  of 
standardised information for public utilities. 

The views of traders and trade associations were rather split in response to the online survey 
question  of  the  CRD  study  on  whether  the  presentation  of  pre-contractual  information  to 
consumers  should  be  simplified  by  applying  a  uniform  easy  graphic  model  using  icons  or 
pictograms.  32%  of  respondents  from  trade  associations  agreed  to  introduce  a  non-binding 
model, whilst 46% disagreed with this idea. Traders were more in favour of the icon model, 
but  with  views  evenly  divided  on  whether this  should  be  binding  or  not  (23%  for  and  23% 
against a binding model for icons). Consumer associations and ECCs tended to agree that the 
model should be binding. Most of the national competent authorities, however, disagreed with 
this idea.  

At the time of the adoption of the CRD guidance in 2014, the Commission services already 
proposed  a  model  for  presenting  consumer  information  for  digital  content.  Although  it 
received  positive  feedback  from  industry  and  consumer  representatives  and  was  based  on 
extensive research and testing, this icon-based voluntary model has not been implemented by 
the industry.  

In the online survey for the CRD study, consumers were asked about their views on whether 
pre-contractual information requirements could be simplified by using a graphical model with 
icons. 40% of the respondents agreed that the presentation of pre-contractual information in 
graphic form would be very useful. In the Consumer Summit a majority96 of the participants 
of the consumer information workshop was in favour of a non-binding model form, indicating 
that it should include icons. 

On the other hand, the CRD behavioural experiment carried out within the consumer market 
study  for  the  Fitness  Check97  did  not  seem  to  confirm  the  added  value  of  icons.  This 
experiment  was based on examples of presenting information  in  line with those included in 
the CRD Guidance digital content model form, and showed that respondents understood the 
pre-contractual information  required by the CRD and  found  the information  to  be  relevant. 
Respondents  were  also  able  to  use  pre-contractual  information.  However,  adding  icons  did 
not seem to facilitate understanding and for certain information items it even seemed to lower 
understanding.  There  may  thus  be  little  added  value  in  introducing  requirements  under  the 
CRD to present pre-contractual information through the use of icons. 

96  69%  of  129  participants.  Workshop  conclusions  are  available  on 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=34204  
97 This behavioural experiment examined consumer understanding and the use of pre-contractual information for 
products  in  two  sectors:  the  digital  content  sector  and  e-commerce  of  ICT97  goods.  The  products  were 
smartphones and streaming content (movies). The report of the Consumer Market Study to support the Fitness 
Check  of  EU  consumer  and  marketing 
is  available  at  http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=59332 

the  Summit's  webpage: 

law 

55 

 
 
 
                                                 
6.4.6. Relevance of specific information requirements for online marketplaces 

The conclusion of contracts on online marketplaces98 raises specific issues from the point of 
view of EU consumer and marketing law, such as whether consumer users are informed about 
the identity and legal status of supplier (if the supplier qualifies as a "trader" or "consumer" 
under EU consumer and marketing law), the criteria used by platform when presenting search 
results, including offers by different suppliers (both third party and platforms' own offers) and 
whether review and rating systems can possibly replace some of the functions of the current 
consumer acquis. Currently, those information requirements do not exist under the CRD. 

Criteria used by platforms when presenting search results  

In the online survey for the CRD study, stakeholders were asked the following: 

To what extent would the following EU consumer protection rules if fully harmonised 
at EU level be beneficial for increasing trust of consumers? 

When using an online platform to search for information or a product, the consumer should be 
informed about the ranking criteria that the platform uses when presenting the search results.    

A large majority of national competent authorities, of consumer associations and of ECCs as 
well as 45% (relative majority) of trade associations considered introducing requirements to 
inform consumers about ranking criteria beneficial to consumers.  

Results  were  similar  in  the  online  public  consultation:  A  majority  of  respondents  in  all 
categories99 (however only a relative majority in the case of business associations) agreed that 
online  platform  providers  should  inform  consumers  about  the  criteria  used  for  ranking  the 
information presented to consumers. 

At  the  2016  Consumer  Summit,  one  of  the  participatory  workshops  focused  on  consumer 
information.  Participants  in  that  workshop  showed  also  clear  support  for  strengthening 
transparency requirements for online platforms.100  

The  question  about  introducing  requirements  for  platforms  to  inform  consumers  about 
ranking criteria was also discussed in the Fitness Check Expert Group, but without any clear 
conclusion. A Multi-Stakeholder Group on comparison tools, organised by DG JUST, agreed, 
in  its  "Key  Principles",  on  the  importance  of  the  transparency  of  the  ranking  methodology 
used  and  the  identification  of  advertising  in  default  rankings.101  Furthermore  the  updated 

98  As  defined  in  Regulation  (EU)  No  524/2013  of  21  May  2013  on  online  dispute  resolution  for  consumer 
disputes  (Regulation  on  consumer  ODR)  where  ‘online  marketplace’  means  a  "service  provider, as  defined  in 
point (b) of Article 2 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on 
certain legal aspects of information society services, in particular electronic commerce, in the Internal Market 
(‘Directive on electronic commerce’), which allows consumers and traders to conclude online sales and service 
contracts on the online marketplace’s website"; 
99 Consumer associations, public authorities, consumers, companies (see Annex 2 for more detail). 
100  69%  of  126  participants.  Workshop  conclusions  are  available  on 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=34204  
101See 
1 
trade/docs/key_principles_for_comparison_tools_en.pdf  

http://ec.europa.eu/consumers/consumer_rights/unfair-

the  Summit's  webpage: 

Principles 

and 

at 

4 

56 

 
 
 
                                                 
UCPD guidance102 discusses the role of online platforms and their qualification as traders that 
need to comply with consumer laws. 

Results of a screening of 485 for profit platforms facilitating peer-to-peer transactions in 28 
EU Member States undertaken for the "Exploratory study of consumer issues in the sharing 
economy"103 indicate that a majority of platforms offer search functions with filter options as 
part of their "matching" service. But in-depth case studies of 10 such platforms undertaken as 
part of the same study104 showed there is no information about how the competing offers are 
ranked or their visibility is "pushed up" within filtered search results. 

Are consumer information requirements less relevant when platforms operate review 
and rating systems? 

The same study shows that more than half of the 485 screened platforms use review or rating 
systems as means of building trust among users. However, a survey of about 10.000 users of 
platforms facilitating peer-to-peer transactions in 10 Members States undertaken in May 2016 
as part of the same study105 shows that neither peer consumers nor peer providers use these 
reviews  and/or  rankings  systematically.  Only  about  40%  of  peer  consumers  and  peer 
providers  use  reviews  and  ratings  at  least  frequently  before  and  after  transactions.  A 
substantial proportion of consumers and providers (15% - 23%) never uses the reviews before 
or after transactions at all.  

Before  a  purchase  only,  22%  of  consumers  always  use  the  review  system,  while  a  majority 
provides  reviews  only  sometimes,  rarely  or  never  (52%).  Consumers  are  even  less  likely  to 
write reviews after a transaction: only  20%  always  post a review of their  experience  with  a 
peer provider, 22% do it frequently and the majority (58%) only sometimes, rarely or never. 

Moreover, only  20%  of peer consumers who took  some form of action after experiencing a 
problem in a transaction left a negative review, and almost  half of those who experienced a 
problem did not take any action at all. 

The  survey  results  indicate  that  a  majority  of  all  types  of  peers  do  not  use  review/rating 
systems  systematically,  that  most  use  them  on  an  irregular  basis  and  that  a  substantial 
proportion never use them at all, particularly after a transaction. Hence, ratings and reviews 
are unlikely to reflect the experience of all or most platform users. They therefore risk to give 
a misleading or inaccurate impression to platform users.   

While most  peer consumers in the 2016 survey generally evaluate user review systems as a 
positive contribution to safety and protection and adequate information, three quarters of peer 
consumers  have  at  least  some  reservations  about  the  reliability  of  user  ratings  and  reviews. 
Use of these systems increases trust in the platform for almost 20% of peer consumers, while 

of 

at: 

163 

final 

available 

25.05.2016 

SWD(2016) 

http://ec.europa.eu/justice/consumer-

102 
marketing/files/ucp_guidance_en.pdf  
103 To be published; the scope of the study included for profit online platforms facilitating the sale or resale of 
goods,  renting/sharing  of  goods,  renting/sharing  of  accommodation,  hiring/sharing  of  rides,  and  platforms  for 
hiring people for non-professional services ('odd jobs') 
104  Platforms  examined  in  case  studies  are:  Airbnb,  BlaBlaCar,  eBay,  easyCarClub,  Nimber,  Peerby,  Uber, 
Yoopies, Wallapop, Wimdu 
105 Online survey of 1000 internet users active as peer consumers and/or peer providers on the platforms in the 
scope  of  the  study  per  country  in  Bulgaria,  Denmark,  France,  Germany,  Italy,  Netherlands,  Poland,  Slovenia, 
Spain and United Kingdom. 

57 

 
 
 
                                                 
almost  40%  only  slightly  agree  with  this,  a  sizable  minority  of  34%  are  neutral  and  almost 
10% disagree.  

These  findings  about  irregular  use  of  rating  and  review  systems  were  confirmed  in  focus 
groups  undertaken  for  the  same  study  in  10  Member  States106.  Peers  further  reported 
scepticism about the reliability of peer reviews and ratings and awareness of the subjectivity 
of reviews. They underlined uncertainty about the representativeness of reviews, as it is not 
clear whether people tend to write reviews more often after they have experienced a problem 
or after a positive experience, and raised the problem of fake positive reviews.  

These  findings  are  confirmed  both  by  academic  studies107  and  by  the  responses  to  the 
Commission’s  public  consultation  on  the  regulatory  environment  for  platforms,  online 
intermediaries, data and cloud computing and the collaborative economy108. 

The  above  findings  indicate  that  review  and  rating  systems  should  not  be  considered  an 
adequate substitute for consumer protection rules, if the objective is to ensure a high level of 
consumer protection. However, they can be considered a supplementary tool to enhance trust 
and  empower  users  there  where  consumer  protection  rules  do  not  apply  (peer-to-peer 
transactions).  In  this  context,  it  is  important  to  reinforce  their  reliability  by  stepping  up 
enforcement efforts against fake reviews and misleading practices. 

Information about the identity and legal status of suppliers  

The EESC's Information Report on the CRD suggests changes to the "consumer" definition in 
light of the sharing economy: 

"It  should  be  clarified  whether  the  CRD  applies  to  contracts  with  online  platforms 
which  can  be  both  the  seller  and  the  buyer  (e.g.  Airbnb  where  the  owner  of  an 
apartment can be considered as both a capital owner as well as a worker). Currently 
platforms  are  able  to  exclude  all  their  obligations  under  the  Terms  and  Conditions 
and  the  CRD  only  governs  the  direct  relationship  between  the  trader  and 
consumer."109 

In  the  online  public  consultation,  majority  of  consumer  associations,  public  authorities  and 
business respondents, and a relative majority of consumers agreed that further criteria should 
be  defined  to  allow  for  a  clearer  distinction  between  consumers  and  traders  in  the 
collaborative economy. Business associations had mixed views on this.  

According to 2016 Eurobarometer data, more than four in ten survey respondents who have 
heard  of  or  have  visited  collaborative  platforms  say  that  not  knowing  who  is  responsible in 

106  Focus  group  research  was  undertaken  in  May  2016,  amongst  groups  of  8  à  10  peer  consumers  and  peer 
providers in 10 cities in  Bulgaria, Denmark, France, Germany, Italy, Poland, Slovenia, Spain, the Netherlands 
and the UK 
107  Authors  such  as  Slee  (2013)  and  Bolton  et  al.  (2012)  have  identified  various  elements  explaining  this 
behaviour towards bias in reviews  
108European Commission, 2016, Synopsis report on the public consultation on the regulatory environment for platforms, 
online 
at:  
computing 
https://ec.europa.eu/digital-single-market/en/news/public-consultation-regulatory-environment-platforms-online-
intermediaries-data-and-cloud  
109Section  4.2.5.3  of  the  EESC  Information  report:  Consumer  Rights  Directive  (evaluation)  http://www.eesc. 
europa.eu/?i=portal.en.int-opinions.39555 

economy.  Available 

intermediaries,  data 

collaborative 

cloud 

and 

and 

the 

58 

 
 
 
                                                 
the event of a problem is one of the main disadvantages for people using the services offered 
on collaborative platforms (41%).110 

Both the definition of a "consumer" and of a "trader" in the CRD reflects similar definitions in 
other Directives under EU consumer and marketing law, such as the UCPD and the UCTD. 
Any  lack  of  clarity  related  to  these  definitions  in  the  context  of  the  collaborative  economy 
platforms  or  other  platforms  facilitating  peer-to-peer  transactions  should  therefore  be 
considered on a broader basis. In addition, the Fitness Check Report notes that the distinction 
between a "trader" and a "consumer" under EU consumer and marketing law is valid also on a 
more horizontal basis and to the whole platform economy.  

The  issue  of  the  role  and  responsibilities  of  professional  intermediaries  when  facilitating 
transactions  between  consumers  was  addressed  by  the  Court  of  Justice  in  the  recent  case 
C-149/15 Wathelet111. The specific issue in that case was whether a professional intermediary 
can  be  considered  a  "seller"  under  a  sales  contract  between  two  consumers,  if  that 
intermediary  creates  a  likelihood  of  confusion  in  the  mind  of  the  consumer,  leading  him  to 
believe in its capacity as owner of the goods sold. The degree of participation and the amount 
of effort employed by the intermediary in the sale, the circumstances in which the goods were 
presented  to  the  consumer  and  the  latter’s  behaviour  may,  in  particular,  be  relevant  in  that 
regard  in  order  to  determine  whether  the  consumer  could  have  understood  that  the 
intermediary  was  acting  on  behalf  of  a  private  individual.  This  question  can  arise  in  many 
situations;  its  translation  into  the  online  world  would  need  to  be  balanced  with  the 
intermediary  liability  exemption  under  the  E-commerce  Directive.  In  the  Wathelet  case, 
however,  it  arose  in  connection  with  the  sale  of  a  second-hand  car  through  a  traditional 
transaction  in  a  brick-and-mortar  garage.  The  Court  of  Justice  clarified  that,  under  the 
Consumer Sales and Guarantees Directive112, the fact that the garage did not inform the buyer 
that the car was actually sold by a third party – and that this third party was a consumer – was 
likely  to  lead  the  buyer  to  believe  that  she  bought  the  car  directly  from  the  garage. 
Consequently, the garage itself could be considered as the "seller" under the Consumer Sales 
and Guarantees Directive.    

As  regards  the  legal  status  of  suppliers  on  online  platforms  facilitating  peer-to-peer 
transactions,  the case  study  findings  of  the above  mentioned  study113  show  that  none  of  the 
ten  platforms  examined114  qualify  as  merely  hosting  an  information  society  /  electronic 
service.  In  fact,  all  platforms  examined  actively  manage  the  conclusion of  transactions,  and 
some  of  them  also  govern  the  transactions  between  the  peers  by  setting  terms  for  these 
transactions.  

Findings  further  show  that  these  platforms  have  diverging  practices  when  it  comes  to 
informing  users  about  the  legal  status  of  providers  on  the  platform.  Five  out  of  ten  of  the 
assessed platforms allow a distinction between private or commercial actors. Some platforms 
(BlaBlaCar  ride  sharing  and  easyCar  Club  car  sharing  platform)  do  so  by  excluding 
commercial  activity  (activity  carried  out  for  professional  purposes).  Other  platforms  (eBay, 

110 Source: Flash Eurobarometer 438. 
111 Judgement of 9 November 2016 in Case C-149/15, Sabrina Wathelet v Garage Bietheres & Fils SPRL 
112 Directive 1999/44/EC on consumer sales and guarantees. 
113 "Exploratory study into consumer issues in the sharing economy" to be published  
114 AirBnB, BlaBlaCar, eBay, easyCar Club, Nimber, Peerby, Uber, Wallapop, Wimdu, Yoopies  

59 

 
 
 
                                                 
Wimdu accommodation and Yoopies odd jobs platform) require providers to clearly indicate 
their  legal  status  to  the  platform.  Two  platforms  (eBay  and  Yoopies)  require  providers  to 
inform platform users in their listing or in their profile whether they are a private individual or 
a business. The other five platforms studied (Airbnb, Nimber, Peerby, Wallapop, Uber) do not 
make  a  distinction  and  do  not  require  providers  to  give  any  information  about  their  legal 
status.  

The case studies further find that all platforms deny liability for false information provided by 
peers, including about their legal status or identity. 

The  distinction  between  private  and  commercial  providers  is  most  relevant  on  larger 
platforms, where the high number of users attracts businesses providing commercial services. 
The  study  therefore  considers  it  an  element  of  concern  that  some  of  the  largest  platforms 
examined (e.g. Airbnb,  Uber) still do not  inform users about the provider’s legal status.  On 
the contrary, examples of good practices, such as indication of legal status, verification of the 
authenticity  of  the  identity  of  providers  against  official  documents,  criteria  to  distinguish 
private from commercial peer providers and indication of peer providers’ status in the listing 
or  the  profile  are  found  on  both  larger  (BlaBlaCar,  eBay,  Wimdu)  and  smaller  platforms 
(Yoopies, easyCar Club) 

Other  elements  of  concern  identified  in  the  case  studies  are  that  most,  including  larger, 
platforms  enable  users  to  conclude  transactions  without  verifying  their  official  identity 
documents, and deny responsibility for the accuracy of identity information in their Terms & 
Conditions.  Two  Sharing/Hiring  Ride  platforms  (Uber  and  easyCar  Club)  carry  out  a  pre-
screening  of  the  peer  provider's  identity  during  the  registration  process,  by  verifying  the 
authenticity  of  his/her  identity  and  car  registration  documents  and  by  checking  his/her 
criminal records. However, most platforms examined in the case studies do not systematically 
verify the provider's identity. They allow registration and transacting on the platform as peer 
consumer and/or peer provider after confirmation of the email address through a link sent to 
the  user,  or  by  linking  to  a  social  media  account  or  Google  account.  Such  practices  are  a 
major obstacle to transparency about the status of peer providers, as well as a potential risk in 
case something goes wrong in a transaction. 

60 

 
 
 
6.5. European added value 

The analysis of European added value assessed the following questions:  

  What  is  the  additional  value  resulting  from  Directive  2011/83/EU,  compared  to  what 

 

could be achieved by Member States at national and/or regional levels?  
In  particular,  what  has  been  the  EU  added  value  of  areas  such  as  pre-contractual 
information  requirements  and  the  right  of  withdrawal  (including  the  use  of  a  standard 
withdrawal form and the right to return used goods)? 

The objective of the CRD is, through the achievement of a high level of consumer protection, 
to contribute to the proper functioning of the internal market by approximating certain aspects 
of  the  laws,  regulations  and  administrative  provisions  of  the  Member  States  concerning 
contracts concluded between consumers and traders.  

Recital  6  of  the  Directive  states  that  disparities  create  significant  internal  market  barriers 
affecting  traders  and  consumers  and  that  disproportionate  fragmentation  undermines 
consumer confidence in the internal market and increases compliance costs to traders wishing 
to engage in the cross-border sale of goods or provision of services. 

The legal analysis and the consultations carried out in preparation of this evaluation suggest 
that an EU approach based on approximation of national laws remains the most appropriate 
response  to  the  challenges  identified  prior  to  adoption  of  the  CRD  and  is  more  likely  to 
contribute to achieving its objectives than action at national and/or regional levels. However, 
as already stated, only limited information was available to analyse the European added value 
of  the  CRD,  also  due  to  its  short  period  of  application  in  the  Member  States.  The  limited 
information specifically on EU added value may also be due to the fact that most interlocutors 
do not question at all the added value of internal market legislation that harmonises rules to 
remove obstacles to cross-border trade whilst achieving a high level of consumer protection 
across the board and take this for granted.  

Prior  to  the  Directive,  a  number  of  consumer  rights  such  as  the  pre-contractual  information 
requirements and the right of withdrawal were not harmonised. There was also no obligation 
to provide a withdrawal form. The Directive also for the first time laid down specific rules at 
EU  level  on  digital  content,  namely  specific  requirements  regarding  pre-contractual 
information and the right of withdrawal. 

The  online  public  consultation  showed  that  the  right  to  get  information  about  goods  and 
services offered and the right of withdrawal, rights which had been harmonised by the CRD, 
were  regarded  as  beneficial  to  consumers  by  the  majority  of  respondents  in  all  stakeholder 
categories.  Business  associations  were  less  convinced  about  the  benefits  (for  consumers)  of 
the right of withdrawal for downloading or streaming of digital content and of the right to get 
information about the functionality and interoperability of digital content. 

The  analysis  and  consultations  showed  that,  overall,  the  CRD  has  increased  the  level  of 
consumer  protection  across  most  MS,  with  very  few  exceptions  and  that  it  is  unlikely  that 

53 

 
 
 
Member States could have tackled the problem linked to the difference in consumer laws at 
national and/or regional level. 

For  example,  respondents  to  the  CRD  study  consultations  agreed  that  the  CRD  has 
contributed  to  reducing  differences  in  consumer  legislation  and  has  achieved  a  significant 
level  of  harmonisation.  71%  of  traders  who  indicated,  in  response  to  the  CRD  survey,  that 
they trade cross-border and experienced problems quoted differences in national legislation as 
a main difficulty to selling in other EU countries. 

In the surveys conducted for the CRD study, most national competent authorities saw either 
significant (43%) or moderate (41%) added value resulting from the CRD compared to what 
could have been achieved by individual Member States at national or regional level. None of 
the responding competent authorities saw “no added value” from the CRD.  

In  their  view,  the  uniformity  and  harmonisation  of  consumer  rights  across  Europe  has 
increased cross-border sales, broadened the market, enhanced legal certainty, and resulted in 
compliance  cost  reductions.  In  addition,  the  national  authorities  also  commented  that 
harmonisation has facilitated the enforcement of consumer rights and the handling of cross-
border complaints and infringements.  

How EU full harmonised rules could enhance cross-border enforcement was demonstrated for 
instance  by  the  coordinated  enforcement  actions  carried  out  by  the  CPC  network  in  2015-
2016;  the  existence  of  EU  common  rules  under  the  CRD,  such  as  the  information 
requirements  on  the  total  price  and  charges  of  the  service,  and  the  ban  of  pre-ticked  boxes, 
allowed Member States to easily agree and coordinate their enforcement actions to make the 
top five car rental companies operating in the EU comply with EU consumer law, including 
the CRD, improving consumer information in the car rental sector.115  

Intervention  at  EU  level  also  allows  for  EU-wide  coordinated  control  actions  (so-called  EU 
sweeps), which have proved to be effective tools to identify breaches of EU law and enable 
subsequent enforcement.  

Although traders answering the CRD survey did not notice an increase in sales as a result of 
the Directive, a third of respondents consulted under the EESC’s evaluation agreed that intra 
EU cross-border online sales had increased since June 2014.  

Analysis  by  Eurostat  seems  to  confirm  this  trend  indicating  an  increase  of  intra-EU  cross-
border online purchases from 25 % in 2012 to 32 % in 2016.116  

Regarding consumer confidence, available Eurobarometer data shows, that the percentage of 
consumers  feeling  confident  in  purchasing  online from another Member State has  increased 

115http://ec.europa.eu/consumers/enforcement/cross-
border_enforcement_cooperation/coordinated_enforcement_actions_en.htm  
116 Base: individuals who bought or ordered goods or services over the internet for private use in the previous 12 
months, 
http://ec.europa.eu/eurostat/statistics-explained/index.php/E-
commerce_statistics_for_individuals (figure 8.) 

source: 

54 

 
 
                                                 
since  2014.  In  2016,  58%  of  consumers  felt  confident  in  purchasing  online  from  another 
Member State, which represents an increase of 21 percentage points since 2014.117  

As regards traders' views on obstacles to cross-border sales, the available Eurobarometer data 
show  that  in  2016,  37%  of  traders  currently  selling  online  considered  differences  between 
consumer protection rules as important obstacles to development of online cross-border sales, 
which represents a decrease of 5 percentage points compared to 2014.118  

It  should  be  noted  that  these  positive  general  trends  may  only  partially  be  attributed  to 
consumer legislation including the entry into force of the CRD as other factors are likely to 
have contributed as well. 

Also in the online public consultation, around 30% of companies agreed that businesses can 
trade across the EU more easily thanks to the harmonised EU consumer and marketing rules 
whilst 11% did not agree and 59% had no opinion.  

37% of respondents to the EESC survey think that consumer confidence in online shopping 
has increased since June 2014, but a similar number (35%) think it has stayed the same. 24% 
do  not  know.  A  third  of  respondents  (33%)  claim  that  consumer  confidence  while  buying 
online  from  other  Member  States  has  stayed  the  same  since  June  2014,  but  a  close  31%  of 
respondents think it has increased. 7% think consumer confidence when shopping online has 
decreased, and 28% do not know. 

The  EESC  survey  also  examined  the  effect  of  the  Directive  on  legal  certainty:  a  third  of 
respondents  (33%),  evenly  spread  between  employers,  employees  and  consumers,  believe 
there is less legal uncertainty, 22% believe that there is more legal uncertainty, 19% think it 
has stayed the same. 26% do not know. 

In the online public consultation, a majority of respondents in all stakeholder groups (relative 
majority  of  business  associations)  stated  that  EU  consumer  law  and  marketing  law  has  a 
positive  impact  on  the  amount  and  relevance  of  information  available  to  consumers  to 
compare  and  make  informed  purchasing  choices.  However,  it  should  be  noted  that  the 
question  did  not  refer  explicitly  to  the  CRD  but  to  EU  consumer  and  marketing  law  in 
general. 

Overall, the evaluation suggests that EU-intervention continues to be justified. In particular as 
regards  facilitation  of  cross-border  trade  and  protection  of  consumers  in  cross-border 
purchases,  it  is  unlikely  that  intervention  on  Member  State-level  alone  in  the  areas 
harmonised by the CRD would be able to achieve the same positive results as EU level action. 

117  Source:  Flash  Eurobarometer  397  and  survey  on  consumers'  attitudes  towards  cross-border  trade  and 
consumer related issues (2016) to be used in the forthcoming Consumer Conditions Scoreboard 2017 (expected 
publication  –  summer  2017).  Please  note  that  methodology  changed  over  the  years,  therefore  trends  and 
comparisons of data in different years should be interpreted with caution. 
118 Source Flash Eurobarometer 396 and survey on retailers' attitudes towards cross-border trade and consumer 
protection (2016) to be used in the forthcoming Consumer Conditions Scoreboard 2017 (expected publication – 
summer 2017). Please note that methodology changed over the years, therefore trends and comparisons of data 
in different years should be interpreted with caution. 

55 

 
 
 
                                                 
7. CONCLUSIONS  

Due to the still early stage of the Directive's  implementation, this evaluation focused on the 
progress introduced by the Directive compared to the status quo ante and experiences with the 
application of the Directive during its first two and a half years. The evaluation shows, based 
on inputs from stakeholders, that the Directive has positively contributed to the functioning of 
the B2C internal market, with a high common level of consumer protection albeit so far with 
some limitations. 

Effectiveness: Overall, the transposition and first application of the CRD rules appears to be 
in  line  with  the  Directive's  main  objectives  of  enhancing  consumer  protection  and  reducing 
regulatory  fragmentation.  In  particular,  a  comparison  of  the  rules  pre-  and  post-CRD  has 
shown  that  consumer  protection  has  been  strengthened  in  most,  if  not  all,  Member  States 
regarding  most  of  the  key  provisions.  Available  data  show  positive  trends  in  terms  of 
enhanced consumer confidence and increase in cross-border sales, that can also be attributed 
to  consumer  protection  legislation  including  the  CRD.  However,  the  level  of  effectiveness 
seems  to  differ  depending  on  the  type  of  contract  involved:  it  was  found  that  the  level  of 
protection for digital content purchases is not perceived as effective as for goods and services 
mainly due to lack of awareness or compliance with the rules. In general, a number of factors 
have  been  found  to  still  be  hindering  the  effectiveness  of  the  Directive’s  implementation. 
These  are  a  lack  of  awareness  by  consumers  and  traders  of  the  Directive's  provisions, 
problems  with  the  interpretation  of  some  of  the  Directive's  provisions,  a  low  level  of 
compliance with specific provisions, including key ones such as information requirements on 
the right of withdrawal, and a low level of enforcement. These conclusions need to be seen 
against  the  backdrop  that  this  evaluation  has  been  carried  out  at  an  early  stage  of  the 
application of the Directive. 

Efficiency: It has not been possible to gather quantitative estimates of costs and benefits of 
the implementation of the CRD, thus the analysis has been based on qualitative information. 
The limited available data do not allow definitive conclusions about the level of costs faced 
by  businesses  in  ensuring  compliance  with  the  new  Directive.  Surveyed  businesses  were 
reluctant to provide financial estimates of such  costs, and there was scarce monetary evidence 
available. However, specific burdens especially for SMEs have been reported, mainly relating 
to the pre-contractual information requirements and the right of withdrawal.  

Coherence:  Overall,  the  CRD  is  deemed  coherent  with  other  EU  legislation  and  no  major 
problems  have  been  identified.  However,  the  interplay  with  several  other  EU  pieces  of 
legislation and new EU legislative proposals could be further streamlined and clarified in the 
future.  

56 

 
 
Relevance: The original objectives of the Directive are as valid today as when the Directive 
was  first  proposed.  In  particular,  the  objectives  of  ensuring  a  high  level  of  consumer 
protection  and  a  level  playing  field  for  businesses  in  online  business-to-consumer  contracts 
are relevant within the framework of the Digital Single Market policy. Also the provisions of 
the CRD are still relevant, except for the requirement to provide the trader's fax number, and 
the trader's e-mail address where other, more modern means of communication (such as web-
based forms) could be sufficient, to the extent they enable the consumer to efficiently contact 
the  trader  in  a  manner  which  allows  the  consumer  to  keep  a  proof  of  such  exchanges  on  a 
durable  medium.  The  provisions  on  distance  contracts  are  likely  to  become  even  more 
relevant in the future, as the number of online consumer purchases are expected to increase. In 
order to ensure that the Directive remains fully relevant to meet current challenges, the scope 
of  the  CRD  could  be  expanded  to  cover  also  digital  services  provided  for  "free".  If  this  is 
done, it could also make sense to extend the information requirements on "functionality" and 
"interoperability"  to  such  contracts.  Moreover,  with  the  growing  role  of  online  platforms, 
there is a strong call, especially from consumer associations and some business associations, 
to introduce specific transparency requirements for online marketplaces. 

EU Added Value: An EU approach remains the most appropriate response and is more likely 
to contribute to achieving the objectives set by the Directive than national approaches. In fact, 
the  Directive  has  consistently  reduced  the  regulatory  fragmentation  among  Member  States 
through  its  harmonisation  approach,  hence  contributing  to  enhance  consumer  trust  in  cross 
border sales and traders' cost of compliance when selling cross border. Harmonised rules are 
also a pre-condition for effective cross-border enforcement actions among Member States.  

Possible follow-up  

Follow-up actions to be undertaken might include further awareness activities and guidance to 
clarify the most controversial provision and their implementation in practice.  

Also focused enforcement actions in the framework of the CPC Regulation in the areas with 
the  lowest  level  of  compliance  could  help  enhancing  the  practical  effectiveness  of  the 
Directive.  

With  a  view  to  improve  compliance  with  the  current  information  requirements,  whilst 
simplifying  the  way  information  is  presented  to  consumers,  the  Commission  has  recently 
launched a self-regulatory exercise within the REFIT stakeholder group with the aim to agree 
on  a  set  of  key  principles,  similar  to  those  concerning  comparison  tools  and  environmental 
claims,  for  a  better  presentation  of  both  pre-contractual  information  under  the  CRD  and 
standard contract terms. Legislative intervention could be considered too, notably in case this 
self-regulatory approach proves unsatisfactory.   

If  a  legislative  initiative  was  decided,  it  should  include  an  extension  of  the  CRD  scope  to 
contracts  on  free  digital  services,  a  clarification  of  the  rules  applicable  to  digital  content 
contracts  combined with  reviewing rules  applicable to  digital  content  and digital services, a 
simplification of certain information requirements so as to better reflect technological/market 
developments,  e.g.  web-based  contact  forms  as  an  alternative  to  a  trader’s  e-mail;  and 

57 

 
 
extension  of  transparency  requirements  for  online  intermediaries  as  well  as  consequences  if 
they fail to comply.  

There may also be scope for simplifying certain rules that appear to create excessive burden 
for  traders,  in  particular  SMEs,  such  as  the  right  of  withdrawal  for  goods  used  to  an  extent 
more  than  necessary  to  establish  their  nature,  characteristics  and  functioning,  and  the 
requirement  to  reimburse  the  price  before  a  trader  has  received  the  good  back  from  the 
consumer.  However,  more  robust  economic  data  to  justify  the  need  for  legislative  action 
should be gathered.   

The Commission's follow-up actions are presented in the Report from the Commission to the 
European Parliament and the Council on the implementation of Directive 2011/83/EU. 

58 

 
 
 
 
 
 
 
 
 
ANNEXES 

59 

 
 
 
Annex  1  -  Procedural  information  concerning  the  process  to 
prepare the evaluation 

Lead DG: European Commission, Directorate-General Justice and Consumers (DG JUST) 

Organisation 

In  January 2016, DG  JUST launched  the evaluation  of the Consumer  Rights  Directive. The 
roadmap119,  the  consultation  strategy120  and  the  Terms  of  Reference  for  the  contract  on  the 
evaluation study were published end of February 2016.  

As the CRD review process was running in parallel with the Fitness Check of consumer and 
marketing law, it was decided in order to simplify the process to use tools which were set-up 
for  the  Fitness  Check  of  consumer  and  marketing  law  (Inter-service  steering  group,  Fitness 
Check stakeholder group, online public consultation, consumer market research). It was also 
decided  to  have  the  CRD  evaluation  published  at  the  same  time  as  the  Fitness  Check  of 
consumer and marketing law.  

The  Inter-service  Steering  Group  (ISSG)  that  had  been  set  up  for  the  Fitness  Check  of 
consumer  and  marketing  law  consisted  of  representatives  of  Directorates-General  ENV, 
EMPL,  CNECT,  FISMA,  MOVE,  ENER,  COMP,  ECFIN,  GROW,  TRADE  as  well  as  the 
Secretary General and Legal Service of the Commission. At the beginning of the process, the 
ISSG  was  consulted  on  the  draft  roadmap,  the  consultation  strategy  and  the  Terms  of 
Reference  and  later  on  the  deliverables  of  the  CRD  evaluation  study.  The  ISSG  members 
were also invited to attend the meetings with the contractor to discuss their deliverables. 

Agenda Planning – Timing  

Date 

25/10/2011 

October 2015  

End February 2016 

15/03/2016 

19/04/2016 

Description 

Publication of the Consumer Rights Directive with 
application date 13/06/2014 including Article 30 with 
report submission by 13/12/2016 

Establishment of the Steering Group for the Fitness 
Check of consumer and marketing law 

Request for services for assessment study (using DG 
SANTE framework contract)  

Consumer market research (Lot 3 study of the Fitness 
Check on consumer and marketing law) – contract 
signed (GfK Belgium) 

Consumer market research– meeting with the 
contractor to discuss the inception report; ISSG 

119 http://ec.europa.eu/consumers/documents/roadmap_of_the_crd_evaluation.pdf  
120 http://ec.europa.eu/consumers/documents/consultation_strategy_on_the_evaluation_of_the_crd.pdf  

60 

 
 
 
                                                 
Date 

Description 

25/04/2016 

3/05/2016 

31/05/2016 

12/05 – 12/09/2016  

13/05 – 13/06/2016 

members consulted on the draft and invited to the 
meeting  

Publication of the Roadmap and Consultation strategy 

Contract signed with consortium led by Risk & Policy 
Analysts Ltd (RPA) 

Inception Report of the Study 
Ad-hoc feedback from the Steering Group, inception 
report circulated within the Steering Group  

Online public consultation (jointly with Fitness Check 
of consumer and marketing law) 

Call for applications – Fitness Check Stakeholder 
consultation group  

3/09/2016 

Interim report of the study 

21/09/2016  

Ad-hoc feedback from the Steering Group, interim 
report circulated within the Steering Group 

1st meeting of the Fitness Check Stakeholders 
Consultation Group covering CRD topics 

17/10/2016  

Consumer summit 2016 

26/10/2016 

30/10/2016 

25/11/2016 

20/12/2016 

17/01/2017 

Presentation of the interim findings from the external 
assessment study 

Consumer  market  research  –  meeting  with 
the 
contractor  to  discuss  the  2nd  interim  report;  ISSG 
members consulted and invited  

Amended interim report of the assessment study with 
meeting on 3/11/2016 - ISSG members consulted and 
invited to the meeting 

2nd  meeting  of 
Consultation Group covering CRD topics 

the  Fitness  Check  Stakeholders 

Draft Final Report of the assessment study  

Ad-hoc  feedback  from  the  Steering  Group,  report 
circulated within the Steering Group 

Summary of public online consultation and responses 
published  on  DG  JUST  website;  ISSG  members 
publication 
before 
draft 
the 
consulted 
(http://ec.europa.eu/newsroom/just/item-

on 

61 

 
 
Date 

Description 

27/01/2017 

10/03/2017 

17/03/2017  

detail.cfm?item_id=31689) 

3rd  meeting  of 
Consultation Group covering CRD topics 

the  Fitness  Check  Stakeholder 

Draft  Commission 
report  and  Staff  Working 
Document  with  accompanying  documents  and  final 
study report sent to the ISSG – meeting on 17/03/2017 

Steering  Group  Meeting  -  discussion  of  the  report, 
draft  Staff  Working  Document  (SWD)  and  of  final 
report of the supporting study.  

29/03 – 24/04/2017  

Inter-service consultation  

03/04/2017 

4th  meeting  of  the  Fitness  Check  Stakeholders 
Consultation Group 

23/05/2017 (tbc) 

Publication of the Report, SWD and Study  

External Expertise 

The following contract study was carried out to provide facts and evidence for the evaluation 
and form the base of the conclusions presented in this document: "Study on the application of 
the  Consumer  Rights  Directive  2011/83/EU".  The  Terms  of  Reference  presented  the 
background  and  scope  of  the  evaluation,  the  intervention  logic  and  the  detailed  evaluation 
questions, the documents and data sources already available, the phases of the evaluation and 
its  organisation.  The  contract  was  signed  on  3/5/2016.  The  contract  was  carried  out  by  a 
consortium  led  by  Risk  &  Policy  Analysts  Ltd  (RPA)  under  the  framework  contract  for 
provision of evaluation and impact assessment in the area of Consumer Policy of DG General 
Health and Consumers (former DG SANCO). The final report of the study was approved in 
May 2017.121  

The following contract study provides additional data: "Consumer market study to support the 
Fitness  Check  of  consumer  rules"  (Consumer  Market  Study  also  called  Lot  3  study  of  the 
Fitness  Check  of  consumer  and  marketing  law).  The  Terms  of  Reference  presented  the 
background and scope of the required market research (that consisted for the CRD of mystery 
shopping  and  behavioural  research)  and  the  key  evaluation  themes,  the  documents  and  data 
sources  already  available,  the  methods  and  phases  of  the  research  and  its  organisation.  The 
contract was signed on 15 March 2016 and covered a period of 10 months. The contract was 
carried out by a consortium led by GfK Belgium. The final report of the study was approved 
in March 2017. 

121 Final report available at http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 

62 

 
 
 
 
 
 
                                                 
Annex 2 - Synopsis of stakeholder consultations  

Stakeholder involvement was vital for the evaluation in order to identify the problems, collect 
facts  and  data  and,  on  this  basis,  to  assess  the  impacts  of  the  legislation  as  well  as  collect 
views on potential options for future action. 

The consultation strategy was developed and published from the start of the project in January 
2016  and  aimed  at  implementing  as  much  as  possible  the  Better  Regulation  Guidelines 
published in May 2015. The relevant stakeholders for this evaluation included: 
- Consumers; 
- National and EU-level consumer associations; 
- Businesses (including SMEs); 
-  Organisations  representing  businesses  in  e-commerce  and  retail  trade  at  European  and 
national  level,  as  well  as  those  representing  businesses  in  specific  sectors  (for  example: 
telecommunications, energy, financial services, etc.); 
-  Member  States'  authorities  (the  relevant  ministries,  consumer  enforcement  authorities  and 
sector-specific national regulators); 
- Network of European Consumer Centres (ECCs) 

Lawyers'  associations,  university/research  institutes  dealing  with  consumer  law  as  well  as 
third  country  authorities  and  organisations  had  also  the  opportunity  to  provide  their  views 
during  this  consultation.  DG  JUST  engaged  with  Members  of  European  Parliament  and  the 
European  Economic  and  Social  committee.  The  latter  contributed  to  the  process  also  by 
preparing, at the Commission's request, its own assessment report.  

The main consultation activities were:  

  Feedback on the Roadmap following its publication 

  Targeted stakeholder consultations in the framework of the external study (national 

consumer organisations, consumers, business associations, businesses, national consumer 
enforcement authorities, ministries and national regulatory authorities) through interviews 
and online survey  

  Meetings of the Stakeholder consultation Group, created for the Fitness Check exercise, 
that  brings  together  representatives  of  European  and  national  consumer  organisations  as 
well as representatives of European business organisations 

 

Meetings  with  existing  stakeholder  groups  of  DG  JUST  networks:  Consumer  Policy 
Network  (CPN),  Consumer  Protection  Cooperation  Network  (CPC),  and  European 
Consumer  Consultative  Group  (ECCG)  and  network  of  European  Consumer  Centres 
(ECC) as well as with DG GROW's SME related network through its Small Business Act 
(SBA) follow up meetings  

  Online public consultation using EUSurvey tool 

  Consumer  Summit  dedicated  to  the  Fitness  Check  of  consumer  and  marketing  law  and 

covering also CRD 

63 

 
 
 
 
 
  Dialogue/Consultation  with  other  EU 

institutions,  European  Parliament's  (EP) 
Committee  on  Internal  Market  and  Consumers  (IMCO),  European  Economic  and  Social 
Committee (EESC) 

The results of all the consultation processes listed above and outlined in more detail below fed 
into to the present Staff Working Document. The CRD evaluation and the Fitness Check of 
consumer and marketing law were carried out in parallel; several of the consultation activities 
were used for both exercises. 

1. Consultation on the roadmap 

The  roadmap  was  published  on  DG  JUST  website  and  on  smart  regulation  page  of  the 
Commission  on  25  April  2016  and  stakeholders  were  invited  to  provide  feedback  on  the 
roadmap.  One  organisation  provided  formal  feedback,  the  Zentralverband  des  Deutschen 
Handwerks  (German  craft  association,  ZDH).  The  ZDH  welcomed  the  assessment  exercise 
and  pointed  out  challenges  that  German  craft  needs  to  overcome  to  comply  with  the  rules 
introduced by the CRD.  

Roadmap of the CRD evaluation and feedback are published at:  
http://ec.europa.eu/consumers/consumer_rights/rights-contracts/directive/index_en.htm  

2. Targeted stakeholder consultations (July-November 2016) 

The contractor for the evaluation study carried out targeted stakeholder consultation by means 
of an online survey and phone/ face to face interviews.  

Contact details for national enforcement authorities were provided by the Commission, while 
contact details  for trade associations, consumer associations and ECCs were identified from 
the consultants’ database and online. In order to reach as many stakeholders as possible, not 
only were specific stakeholders contacted directly, but consumer and trade associations were 
asked  to  disseminate  the  survey  to  their  members,  as  well  as  to  post  links  to  the  survey  on 
their  website  or  on  social  media  sites,  in  order  to  reach  individual  consumers  and  traders. 
Posts were also displayed on the European Commission website, social media sites as well as 
on online forums.  

Surveys enabled the collection of data from a relatively large number of stakeholders within a 
relatively  short  amount  of  time,  although  the  level  of  response  was  moderate.  The  survey 
questions  aimed  to  assess  the  effectiveness,  relevance,  coherence  and  efficiency  of  the 
Directive and its provisions: which provisions are regarded as most effective, whether the cost 
outweighed the benefits, cost of transposition, views on potential application of the CRD to 
free online services, requirements for online platforms etc. 

The surveys were carried out between July-September 2016 and different questionnaires were 
developed  for  consumers,  traders,  national  consumer  &  trade  associations,  competent 
authorities and European Consumer Centres (ECCs).  

64 

 
 
 
 
Stakeholders were asked to complete the survey by e-mail and invited to disseminate the link. 
Questionnaires were translated into 16 official languages for consumers and traders. Support 
and additional information has been provided on request.  

Numbers of responses received from different stakeholders are summarised in this table.  

Online survey 

Semi-structured 
interviews 

 

 

 

 

 

255  complete  responses  from  consumers;  Greece,  Cyprus 
and  the  UK  where  the  MS  with  the  largest  number  of 
completes; 
25 national consumer associations; 
157 complete responses were received from traders; 
23 complete responses from trade associations; and   
24 completed responses from enforcement authorities and 16 
from ministries. 
24 ECCs responses 

 
64 interviews in total in 18 Member States: 

 

 

 

 

 

 

18 interviews with MS authorities 
9 with ECCs 
22 with trade associations of which 14 were European level 
ones 
11 consumer associations 
1 individual consumer 
3 individual traders 

Based  on  the  responses,  consumers  prefer  retail  outlets  and  the  internet  for  their  purchases 
and the latter is more prominent for cross-border purchases. Doorstep selling was not popular 
among respondents  

Most of the companies responding to the survey were SMEs (58.8% of the total) and 51.6% 
sell cross-border (the vast majority through e-commerce). By type of contract: 

- 75% of traders sell goods; 
- 37% sell services;  
- 8% sold digital content; and  
- 8% provided free-online services. 

Of the trade associations that replied to the survey: 

- 89% represent traders selling goods; 
- 68% represent traders selling services; and 
- 50% represent traders providing digital content both paid and free. 

The level of response to the online survey from traders and  consumers has been rather low, 
despite reminders and engagement through social media. One may attribute this to the time in 
the  year  when  the  consultation  was  launched  (during  the  summer  time)  but  equally  to 
stakeholders’  fatigue,  as  other  studies  on  consumer  protection  have  been  conducted  nearly 
simultaneously with the same or similar target groups. To compensate for this, additional data 

65 

 
 
 
was collected through interviews with trade associations and other stakeholders but only from 
those willing to participate. 

Interviews  with  stakeholders  enabled  more  in-depth  data  and  clarification  to  be  obtained  in 
relation to responses received to the surveys and also with regard to the legal mapping carried 
out.  They helped gather further insights into the application  of the CRD and the associated 
outcomes and costs. 

Stakeholders  were  invited  to  be  interviewed  when  submitting  their  online  survey  and 
interview arrangements were followed at their convenience.  

The  majority  of  interviews  were  conducted  by  telephone,  with  a  small  number  conducted 
face-to-face. The set of questions was tailored to each interviewee based on their response to 
the  online  survey.  Where  it  seemed  necessary,  clarification  on  the  survey  responses  were 
requested,  as  well  as  feedback  on  the  survey.  Other  areas  covered  in  the  tailored  interview 
guidelines included their views on:  

• 

• 
• 

• 

The  implementation  of  the  CRD  in  their  country,  including  the  costs,  practical 
problems,  benefits,  and  coherence  with  other  EU  (and  any  additional  national) 
consumer legislation (national enforcement authorities and responsible ministries); 
How it compares with experiences under the previous regulatory regime;  
Problems encountered in respect of administrative procedures in implementing the 
CRD; and 
Any issues relating to enforcement and levels of compliance. 

In  addition  to  these  areas,  interviewees  were  asked  about  their  opinions  on  future/further 
actions in relation to the CRD, including: 

• 

• 

• 

• 

Should the scope of the Directive be expanded to include the provision of service 
contracts where the services are provided for free in exchange for personal data?  
Should  information  requirements  include  information  on  criteria  for  ranking 
search results (on online platforms) when conducting online shopping?  
Would  it  be  helpful  to  provide  traders  with  a  model  form  using  icons  to  display 
pre-contractual  information  (binding  or  non-binding  model  form  containing 
icons)?  Would  this  help  consumers?  For  traders,  what  would  be  the  costs  or 
benefits? 
Are  there  any  new/additional  consumer  issues  that  need  to  be  addressed  through 
the Directive that are not already explicitly addressed? 

The  study's  report,  prepared  by  the  external  contractors,  contains  more  information  on  the 
consultation activities and is available at:  

http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 

66 

 
 
 
 
 
3. Meetings of Fitness Check Stakeholder Group 

The Commission set up a Stakeholder Consultation Group (the Group) with the objective to 
consult the most important consumer and business stakeholders on key issues of the Fitness 
Check  as  well  as  of  the  CRD  assessment,  in  particular  in  relation  to  the  possible  need  for 
further modernisation of the relevant rules, through a balanced and inclusive approach.  

The  Group  consists  of  EU  level  and  national  organisations  representing  consumers  and/or 
civil  society and EU level and national business organisations representing retailers, service 
providers,  manufacturers,  including  SMEs.  Member  organisations  were  selected  through  a 
call  for  application  (application  period  13  May-13  June  2016)  requiring  applicants  to  be 
registered  in  the  Commission's  Transparency  Register.122  The  Group  is  registered  as  an 
informal  Commission  expert  group  in  the  Register  of  Commission  expert  groups  and  other 
similar entities ('the Register of expert groups'). 

To date the Group has met four times: 21 September 2016, 25 November 2016, 27  January 
2017  and  3  April  2017.  Further  meetings  will  be  held  in  2017  and  if  necessary  in  2018  to 
assist the Commission in the potential follow-up activities of the Fitness Check exercise. 

Consumer  organisations'  representatives  were  vocal  in  calling  for  not  lowering  the  level  of 
consumer protection achieved and business organisations in calling for not lowering the level 
of harmonisation so far achieved.  

One of the topics of the discussions was modernising and possibly streamlining information 
requirements included in the CRD. 

Participants  agreed  on  the  need  to  clarify  which  information  requirements  apply  at  which 
stage of the market transaction (advertising, invitation to purchase, contractual offer). Several 
stakeholders  supported  further  guidance  and  assessment  of  best  practices  regarding  the 
information that should be presented to consumers. Discussions point to the need to simplify 
the  way  information  is  presented  to  consumers.  Some  also  supported  the  exploration  of  a 
voluntary  model.  At  the  4th  meeting,  it  was  decided  to  create  a  subgroup  with  the  aim  to 
continue  the  work  on  enhancing  presentation  of  pre-contractual  information  and  Terms  and 
Conditions. 

The idea to allow traders to use web-based contact forms as an alternative to e-mail addresses 
provided  that  they  grant  the  same  functionality  as  e-mail  was  supported  by  a  number  of 
stakeholders. Stakeholders also pointed to the fact that the fax number is an outdated means of 
communication and it could therefore be deleted from the list in Article 6(1)(c). 

A  number  of  business  and  consumer  stakeholders  have  also  indicated  that  there  is,  in  their 
view,  a  lack  of  clarity  on  the  precise  scope  of  application  as  regards  contracts  on  digital 
content provided for free or against data.  

122 Commission's Transparency Register http://ec.europa.eu/transparencyregister/public/homePage.do  

67 

 
 
                                                 
There was a considerable support for extending the scope of the CRD to (digital) services for 
which consumers provide personal data, but outcome of negotiations on the Digital Content 
Directive  should  be  taken  into  account.  However,  there  were  also  strong  concerns  against 
such  an  extension.  Overall,  members  pleaded  for  consistency  between  data  protection, 
consumer protection and contract law rules. 

The question about introducing requirements for online platforms to inform consumers about 
ranking criteria was also discussed, but without any clear conclusion.  

More information on the group's composition, selection procedure and its activity is available 
at: 
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=
3423 

4. Online Public Consultation 

In support of both the CRD evaluation and the Fitness check of consumer and marketing law, 
the  Commission  organised  an  online  public  consultation123  using  the  EUSurvey124  tool. The 
public consultation was intended to allow a wider range of stakeholders and the general public 
to express their views on the key issues described in the roadmap. The respondents were self-
selecting  and  can  therefore  not  be  considered  as  representative;  within  the  different 
stakeholder categories, the numbers of respondents are relatively low. Replies were analysed 
according  to  different  types  of  respondents  (consumers,  consumer  associations,  businesses, 
business  associations,  Member  State  authorities,  etc.).  The  consultation  opened  on  12  May 
2016  in  English  and  was  made  available  in  23  European  languages  in  June  2016.  The 
consultation was originally scheduled to run until 2 September 2016, but, following requests, 
it was extended until 12 September 2016.  

The public consultation covered the six consumer and marketing law directives subject to the 
Fitness  Check  as  well  as  the  Consumer  Rights  Directive.  Therefore,  it  should  be  noted  that 
some  questions  (examples  see  below)  did  not  refer  solely  and  explicitly  to  the  CRD  but  to 
general consumer and marketing law. 

In  total,  436  respondents  filled  in  the  online  questionnaire.  Additionally,  55  position  papers 
were  received  from the respondents, including three  position papers submitted  to DG JUST 
outside the EUSurvey tool within the consultation period. 

The questionnaire contained three parts:  

123 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=31689 
124 https://ec.europa.eu/eusurvey/home/welcome  

68 

 
 
 
 
 
 
 
                                                 
  a  short  consumer  questionnaire  available  for  respondents  who  indicated  that  they  were 

consumers (citizens); 97 responses from 14 Member States were received;  

  a  short  business  questionnaire  available  for  respondents  who  identified  themselves  as  a 
company  (or  group  of  companies)  in  the  beginning  of  the  survey;  176  responses  were 
received;    71%  of  the  business  respondents  carries  out  their  activities  both  online  and 
offline (23% only offline, 6% only online). The vast majority of businesses carry out their 
activities  only  domestically.  Based  on  number  of  employees,  around  1/3  were  micro 
enterprises (1-9 employees), around 30% small (10-49 employees), 16% medium (50-249 
employees) and 22% large companies (250+ employees). 

  a  full  questionnaire  for  all  other  respondent  categories  (associations,  authorities,  think 
tanks,  other  categories  etc.).  For  individual  consumers  and  individual  businesses,  it  was 
optional to fill in also the full questionnaire after having completed their respective short 
questionnaires. 237 responses were received to the full questionnaire (including 36 of the 
97 consumers and 37 of the 176 companies who chose to continue to this full version of 
the survey) from all 28 Member States and 9 responses from non-EU countries 

In  the  following  overview  of  the  responses,  the  category  "consumer  association"  combines 
both  EU-level  and  national  consumer  associations;  the  category  "business  association" 
combines  both  EU-level  and  national  business  associations;  the  category  "public  authority" 
combines national consumer enforcement authorities, ministries in charge of consumer policy 
and  sector-specific  regulatory  authorities;  and  the  category  "other"  includes:  a  think  tank/ 
university/ research institute, a professional consultancy/ law firm and others. 

consumer 
association 
5% 

public authority 
6% 

other 
7% 

company 
40% 

business 
association 
20% 

consumer 
22% 

Responses  were  received  from  all  28  Member  States  and  “other”  countries  including 
Switzerland,  Norway,  Turkey  and  the  United  States.  The  biggest  number  of  responses  was 
received from Germany (50%) followed by Belgium (11%) and UK (6%). 

69 

 
 
 
 
 
 
47%  of  consumer  respondents  reported  that  they  had  experienced  problems  in  dealing  with 
traders  in  the  past  year.  The  most  frequently  reported  problem  was  that  the  trader  did  not 
provide key information. 
Majority of consumers who experienced problems reported not having managed to solve their 
most serious problem at all. 25% managed to solve their problem at least to some extent and 
18% managed to solve it fully. The most frequently mentioned reasons for not fully solving 
the problem was that the trader did not want to comply with consumer rights, followed by too 
complex/ long/ costly administrative enforcement proceedings. 

Around 30% of companies agreed that businesses can trade across the EU more easily thanks 
to the harmonised EU consumer and marketing rules whilst 11% did not agree and 59% had 
no opinion. 

Large  majority  of  companies  and  business  associations  (same  question  in  the  full  survey) 
were  of  the  view  that  the  benefits  from  complying  with  consumer  protection  rules  are  that 
consumers whose rights are respected come back and bring/attract other consumers whereas 
consumers whose rights are not respected discourage other consumers (damage to reputation). 

CRD rules such as right to get information about goods and services offered and the right of 
withdrawal  were  regarded  as  beneficial  to  consumers  by  the  majority  of  respondents  in  all 
stakeholder categories. Business associations were a bit less convinced about the benefits to 
consumers of the right of withdrawal for downloading or streaming of digital content and of 
the right to get information about the functionality and interoperability of digital content. 

Majority of respondents in all categories thought that the lack of consumer awareness about 
their rights is an important problem for the application of the rules. 

Majority of respondents in all stakeholder groups (relative majority of business associations) 
stated  that  EU  consumer  law  and  marketing  law  has  a  positive  impact  on  the  amount  and 
relevance of information available to consumers  to  compare and  make  informed purchasing 
choices.  

Majority  of  respondents  in  all  categories  agreed  that  information  requirements  currently 
included  in  the  Unfair  Commercial  Practices  Directive,  Price  Indication  Directive  and 
Consumer Rights Directive should be regrouped and streamlined. 

Majority  of  businesses,  business  associations  and  public  authorities  considered  that  the 
information given to consumers at the advertising stage should focus on the essentials while 
more  detailed  information  should  be  required  only  at  the  moment  before  the  contract  is 
concluded. Other stakeholders had divided views. 

Majority  of  respondents  in  all  categories  (however  only  a  relative  majority  in  the  case  of 
business associations) agreed that online platform providers should inform consumers about 
the criteria used for ranking the information presented to consumers. 

70 

 
 
 
 
 
 
 
Majority of consumer associations, public authorities and business respondents, and a relative 
majority  of  consumers  agree  that  further  criteria  should  be  defined  to  allow  for  a  clearer 
distinction  between  consumers  and  traders  in  the  collaborative  economy.  Business 
associations had mixed views on this.  

Majority  of  consumers  (58%)  and  consumer  associations  (75%)  supported  the  need  for  a 
uniform model for better presenting the pre-contractual information; public authorities (47% 
agree v. 32% disagree) and companies (43% agree v. 41% disagree) were more divided in this 
regard and business associations were the least supportive (23% agree v. 56% disagree). 

In  their  comments,  several  respondents  stressed  the  need  for  better  or  more  consistent 
enforcement of existing rights. 

In  the  position  papers  that  commented  on  the  CRD,  the  three  main  issues  discussed  by 
stakeholders  included  information  requirements,  the  14-day  withdrawal  period  for  distance 
sales, and the 30-day period for delivery and passing on risk. Business stakeholders generally 
argued  that  information  requirements  should  be  simplified,  and  pointed  out  that  the 
withdrawal  period  is  complicated  to  apply  in  practice,  particularly  with  respect  to  digital 
content. Consumer organisations emphasised the importance of information requirements and 
the  need  to  consider  how  information  is  presented  in  light  of  behavioural  research, 
particularly in the digital market. Consumer organisations also emphasised the importance of 
the 14-day withdrawal period for online and other distance sales. 

The  full  report  on  the  public  consultation  prepared  by  an  external  contractor  as  part  of  the 
study  to  support  the  Fitness  Check  is  available  at:  http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=59332  

summary 

A 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=31689  

replies  were 

published 

and 

the 

on 

the 

consultation 

page: 

6. Meetings with existing stakeholder groups of DG JUST networks 

6.1 Meetings of the European Consumer Consultative Group (ECCG) 

The  European  Consumer  Consultative  Group  (ECCG)  is  the  Commission's  main  forum  to 
consult national and European consumer organisations. The ECCG meets three times a year 
and  consists  of  one  representative  of  national  consumer  organisations  per  country,  one 
member  from  each  European  consumer  organisation  (BEUC  and  ANEC),  two  associate 
members (EUROCOOP and COFACE) and two EEA observers (Iceland and Norway). 

At the ECCG meeting of 14 April 2016 DG JUST gave a presentation on the state of play and 
the timeline of the CRD evaluation (and the Fitness Check exercise). 

During  the  discussion,  Members  stressed  the  need  for  more  harmonised  enforcement  rules 
and  sanctions,  warned  about  the  risk  of  lowering  consumer  protection  standards  and 

71 

 
 
 
 
 
 
compared  their  national  legislation  on  specific  issues  (implementation  problems  of  right  of 
withdrawal and with door-to-door and telephone sales) and suggested ideas for improvement: 
the possibility to extend the standard information form under the consumer credit directive to 
all contracts. 

At  the  meeting  of  18  October  2016,  DG  JUST  briefly  presented  the  results  of  the  three 
workshops  organised  the  previous  day  in  the  framework  of  the  Consumer  Summit  and 
participants  discussed  concrete  ideas  for  improvement:  simplification  and  improved 
presentation of information requirements was one of the topics mentioned by most members 
as a key area. There were divergent views on the question of level of harmonisation. Members 
agreed that enforcement of consumer law needs to be strengthened. 

More information on the group's composition, selection procedure and its activity is available 
at: 
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=
849&NewSearch=1&NewSearch=1  

http://ec.europa.eu/consumers/eu_consumer_policy/consumer_consultative_group/eccg/index
_en.htm  

http://ec.europa.eu/consumers/eu_consumer_policy/consumer_consultative_group/documents
/  

6.2 Consumer Policy Network (CPN) 

The CPN is an informal Commission Expert group that has been set up to facilitate exchange 
of information and good practice between consumer policymakers in the Member States. The 
members  are  representatives  of  the  highest  administrative  level  responsible  for  consumer 
policy  in  national  administrations  of  the  EU  Member  States  and  Norway,  Iceland  and 
Liechtenstein.  The  network  meets  twice  per  year.  At  the  meetings  described  below,  the 
discussion focused on the Fitness Check of consumer and marketing law; therefore some of 
the statements cannot be solely and specifically linked to the CRD, but related rather to the 
Fitness check exercise. Because of its interplay with information requirements under UCPD 
and PID, CRD was indirectly always touched upon. 

At  the  CPN  meeting  of  25  May  2016,  the  Commission  presented  the  state  of  play  and  the 
timeline  of  the  CRD  evaluation.  CPN  members  were  invited  to  reply  to  the  Commission's 
public  consultation  and  to  cooperate  with  the  Commission's  external  contractors  which  had 
the task of collecting all relevant data at the national level, in particular through stakeholder 
interviews. 

At  the  meeting  of  18  October  2016,  which  focused  on  the  Fitness  Check  exercise,  CPN 
members generally agreed that existing body of EU consumer law is a good basis and there 
was  no  need  for  fundamental  changes.  Most  members  see  benefit  of  streamlining  and 
removing overlaps in existing law. There was a strong call that enforcement of existing law 

72 

 
 
 
 
 
should be top priority, although this was rather linked to the general Fitness Check exercise. 
Most members see benefit of streamlining and removing overlaps in existing law (e.g. some 
pre-contractual information requirements in UCPD, CRD, PID). There were divergent views 
on maximum/minimum harmonisation.  Some members made strong argument for maximum 
harmonisation  to  help  the  Single  Market.  Others  pointed  out  that  maximum  harmonisation 
would  constrain  developments  at  national  level.  Some  also  pointed  out  that  maximum 
harmonisation could bear the risk of leaving things out which might benefit consumers due to 
lack of agreement. Yet others considered that instead of entering into a general discussion on 
this issue, maximum harmonisation should be targeted, whilst leaving the Member States to 
go beyond for specific issues. 

On  the  collaborative  economy,  there  was  a  mix  of  views:  On  the  one  hand,  some  members 
raised  concerns  not  to  introduce  regulatory  obstacles  to  new  business  models  whilst  others 
considered that a ‘void’ in the law should be filled. Some considered that the concept of trader 
would need to be clarified to include citizens who rent out or sell recurrently. 

At  the  CPN  meeting  of  23  November  2016,  the  Commission  presented  an  overview  of  the 
progress and future steps of the Fitness Check. In the discussion, some Members agreed that, 
as  also  shown  at  Consumer  Summit,  many  stakeholders  consider  EU  consumer  rules  to  be 
still  for  purpose  and,  if  anything,  only  some  targeted  revisions  may  be  needed.  Some 
Members  indicated  that  full  harmonisation  makes  it  difficult  for  Member  States  to  address 
national specificities and that Member States need room for manoeuvre at the national level.  

More  information  on  the  group's  composition  and  selection  procedure  is  available  at: 
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=
861&NewSearch=1&NewSearch=1  

6.3 Consumer Protection Cooperation (CPC) 

The  Consumer  Protection  Cooperation  (CPC)  is  a  network  of  authorities  responsible  for 
enforcing EU consumer protection laws in EU and EEA countries. 

At  the  CPC  meeting  of  25  May  2016  and  the  webinar  of  9  June  2016,  the  Commission 
presented the state of play and the timeline of the CRD evaluation. 

At the meeting of 18 October 2016, that was dedicated to the Fitness check. The difficulties in 
drawing  the  boundary  between  application  of  the  UCPD  information  requirements  for  the 
"invitation to purchase" and the CRD pre-contractual information were mentioned as well as 
the question of communication with the consumers via website rather than email. Article 8(2) 
CRD was mentioned as a useful indicator of the most essential consumer information. 

More information: 
http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/consumer_
protection_cooperation_network/index_en.htm  

73 

 
 
 
 
 
6.4 Small Business Act (SBA) regular meetings with European SME associations (at DG 
GROW)  

The Small Business Act (SBA) is an overarching framework for the EU policy on Small and 
Medium Enterprises (SMEs). It aims to improve the approach to entrepreneurship in Europe, 
simplify the regulatory and policy environment for SMEs, and remove the remaining barriers 
to their development. 

In November 2016, in the context of the "Small Business Act" regular meetings organised by 
DG GROW, DG JUST gave a presentation of the main developments of the CRD evaluation 
and the Fitness Check – the results of the public consultation, Consumer summit and external 
studies.  

Participants  included  representatives  of  Business  Europe,  Eurocommerce,  UEAPME, 
Eurochambres,  as  well  as  from  "CEPLIS  –  European  council  of  liberal  professions", 
"Cooperatives  Europe",  "ESBA  –  European  Small  business  alliance,  and  the  German  craft 
organisation ZDH. 

Members largely agreed that the current consumer law is still fit for purpose, however there 
might  be  need  for  further  improvement.  It  was  stressed that  if  changes  are to  be made  they 
must be targeted and aiming at further harmonisation to make it easier for businesses to trade 
across  borders,  they  also  called  for  more  efficient  enforcement.  In  their  view,  the  possible 
review must address new commercial practices and technological developments, in particular 
user  reviews  were  mentioned.  Participants  highlighted  the  burdensome  nature  of  consumer 
law.  As  examples  of  challenges  for  SMEs,  participants  raised  the  excessive  information 
obligations  and  the  need  to  assess  whether  an  off-premises  contract  is  a  service  or  a  sales 
contract in order to apply the correct right of withdrawal regime. 

information  on 
More 
environment/small-business-act/ 

the  SBA:  https://ec.europa.eu/growth/smes/business-friendly-

7. Consumer summit – 17 October 2016 

European  Consumer  Summits  are  annual  stakeholder  events  organised  by  DG  Justice  and 
Consumers of the European Commission. The 2016 Consumer Summit was dedicated to the 
Fitness  Check  of  consumer  and  marketing  law.  Around  430  representatives  of  national 
authorities,  European  institutions,  consumer  organisations,  businesses  as  well  as  academics 
took part in the Summit to discuss whether and how the current EU consumer and marketing 
law rules should be modernised. 

Besides high-level Commission representatives, speakers included Members of the European 
Parliament, and President of the European Economic and Social Committee. At the high-level 
panel Per Bolund, Minister for Financial Markets and Consumer Affairs, Deputy Minister for 
Finance,  Sweden;  Gerd  Billen,  State  Secretary,  Federal  Ministry  of  Justice  and  Consumer 
Protection, Germany; Rastislav Chovanec, State Secretary of the Ministry of Economy of the 

74 

 
 
 
 
Slovak  Republic;  Theresa  Griffin,  Member  of  the  European  Parliament,  Committee  on 
Industry,  Research  and  Energy,  and  Jean-Eric  Paquet,  Deputy  Secretary  General,  European 
Commission  discussed  ways  to  achieve  a  clear,  stable  and  robust  regulatory  framework  to 
boost  consumer  trust  and  sustainable  growth.  At  the  second  high  level  panel  consumer  and 
business representatives discussed challenges and perspectives of EU consumer law. 

Furthermore the programme included presentations of case studies from consumer experts as 
well  as  three  participatory  workshops,  organised  in  parallel,  which  also  allowed  for  more 
focused discussions in smaller groups. 

The  workshop  on  consumer  information  concluded  on  the  need  for  simplification  of  the 
overlapping information requirements set out in three directives (Unfair Commercial Practices 
Directive, Price Indication Directive and Consumer Rights Directive) and the need to ensure 
consistency  with  information  requirements  in  the  sector-specific  legislation.  Information 
requirements  for  online  platforms  should  be  clarified.  Developing  a  model  form  for  the 
presentation  of  key  consumer  information  was  supported  by  a  large  majority  of  the 
participants but many thought that the use of the form should be voluntary. 

More  information  on 
eu/newsroom/just/item-detail.cfm?item_id=34204  

the  2016  Consumer  summit 

is  available  at  http://ec.europa. 

The  event  was  web-streamed  and  a  video  of  the  conference  is  available  online 
https://webcast.ec.europa.eu/european-consumer-summit  

8.  European  Parliament's  internal  market  and  consumer  protection 
committee (IMCO) and legal affairs committee (JURI)  

At the IMCO meeting of 29 November 2016, the Commission presented the outcome of the 
2016 Consumer Summit and the state of play of  the Fitness Check and committee members 
had the opportunity to discuss the main issues with the Commission. IMCO members called 
for  focused  on  key  consumer  challenges,  i.e.:  Information  overload,  both  at  pre-contractual 
stage and in the area of Terms and Conditions, leading consumers not to get the information 
they  really  need  at  the  right  time;  Platforms  and  their  often  opaque  marketing  practices, 
including on ranking criteria; B2B challenges, where IMCO members felt it is mainly bigger 
companies  that  are  against  extending  the  B2C  rules,  whereas  smaller  ones  are  asking  for 
increased protection. IMCO Members stressed that EU consumer acquis is one of the biggest 
Internal Market achievements and that it is crucial to avoid cutting back existing rights. 

75 

 
 
 
 
 
 
 
 
 
9. European Economic and Social Committee's (EESC) consultation 

Following the request from the Commission, the European Economic and Social Committee 
(EESC)  prepared  an  information  report  on  the  Consumer  Rights  Directive  (evaluation).  In 
order to ensure complementarity of evidence gathering, the Commission and the EESC agreed 
on a coordinated approach.  

The EESC information report evaluated how civil society organisations (CSOs) across the EU 
perceive  and  experience  the  implementation  of  the  Directive  on  Consumer  Rights 
(2011/83/EU).  The  evaluation  is  based  on  primary  data  collected  through  a  questionnaire, 
fact-finding  missions,  and  an  Expert  Hearing.  Secondary  data  was  collected  from  existing 
sources,  such  as  EESC  opinions,  reports  of  conferences,  missions  and  public  hearings,  and 
any other relevant work carried out by other EU institutions or expert studies and articles. 

The questionnaire asked those civil society organisations to which the members of the EESC 
are affiliated how they perceive and experience the implementation of the Consumer Rights 
Directive. It was created using the EU Survey online portal and consisted of a mix of question 
formats (filter questions, closed, open-ended, grid and most-significant-change method). The 
consultation  was  open  during  the  first  half  of  September  2016.  The  total  number  of  civil 
society organisations that replied to the questionnaire is 54. This included 21 representatives 
of  the  employers,  20  representatives  of  consumer  organisations,  and  10 representatives  of 
workers (trade unions), with 3 stating "other".  

5  Member  States  were  chosen  for  fact-finding  missions:  Latvia  (3  October  2016),  Italy  (5 
October 2016), Spain (10 October 2016), Poland (10 October 2016) and Belgium (20 October 
2016), based on the following four criteria: 

- Level of consumer protection  
- Size  
- Geographical spread 
- Lower coverage by the Commission's own evaluation of the Consumer Rights Directive and 
Fitness Check on consumer law 

With  the  exception  of  Belgium,  all  the  selected  countries  were  targeted  by  the  European 
Commission's 2014-2015 Awareness Raising Campaign. 

These  fact-finding  missions  included  semi-structured  interviews  with  local  civil  society 
organisations, largely following the structure of the questionnaire. 

The  Expert  Hearing  was  held  at  the  EESC  in  Brussels  on  14  September  2016.  Participants 
included  the  members  of  the  EESC  study  group,  experts  representing  organisations  of 
employers,  employees  and  various  interests  (including  consumer  organisations),  as  well  as 
national regulators and academia. 

Consumer and business associations as well as trade unions have confirmed the relevance and 
impact  of  this  directive  on  commercial  transactions  between  consumers  and  businesses 
including SMEs. 
In  general,  consulted  parties  have  confirmed  that  they are  sufficiently  aware  of  the  national 
legislation implementing the directive as well as of the national proceedings to enforce it, in 

76 

 
 
particular with regard to pre-contractual information and the right to withdrawal. Yet a large 
number of consumers and SMEs are still not aware of the directive’s specific provisions. 

full 

information 
The 
eu/?i=portal.en.int-opinions.39555  

report  of 

the  EESC 

is  available:  http://www.eesc.europa. 

10. Overall messages from the consultations 

These  consultation  activities  were  highly  valuable  sources  of  a  broad  range  of  opinions, 
information  and  data  that  complemented  the  findings  from  desk  research  and  literature 
review. 

The consultations suggest that stakeholders largely agree that the CRD has brought benefits to 
the  consumers  and  that  its  full  harmonisation  nature  has  contributed  to  reducing  legal 
fragmentation.  According  to  most  stakeholders,  improving  awareness  and  enforcement  of 
existing  rights  should  be  a  priority.  However  stakeholders  also  called  for  modernisation  of 
information requirements and pointed out challenges in relation to specific provisions, such as 
the  definitions  of  off-premises  contracts,  digital  content  and  application  of  right  of 
withdrawal.  Views  were  divided  on  the  need  for  a  (voluntary  or  binding)  model  form  to 
present  pre-contractual  information.  There  was  also  support  for  introducing  information 
requirements regarding the criteria that online platforms use for ranking the information.  

Most of the information received via consultation activities was qualitative, i.e. it consisted of 
opinions and experiences. It was more difficult to gather quantitative data also due to the short 
period of application of the CRD. 

77 

 
 
 
 
 
 
 
Annex  3  -  Methods  and  analytical  models  used  in  preparing  the 
evaluation 

CRD study 

The approach to the study consists of a literature review based on desk research, including 
documents  on  the  legal  implementation  of  the  Directive  in  different  MS  and  other  relevant 
studies, as well as stakeholder consultation, by means of online surveys and a programme of 
interviews. More information on consultation activities can be found in point 2 of Annex 2.  

During  the  desk  research  literature  from  the  EU  and  other  parallel  studies  were  examined 
including  the  Directive’s  legal  text  and  other  literature  available  online  for  assessing  the 
implementation of the CRD in the different Member States. Searches were conducted in the 
official  languages  of  the  EU  by  native  country  researchers  assigned  according  to  language 
capabilities.  

A number of parallel studies have provided useful information to this evaluation: the results 
from  the  Commission's  Online  Public  Consultation  and  the  Consumer  Summit;  an 
evaluation  by  the  European  Economic  and  Social  Committee  Report  (EESC)  on  the 
CRD; a mystery shopping exercise and a behavioural experiment.  

The  Online  Public  Consultation,  Consumer  Summit  and  the  EESC  report  are  described  in 
Annex 2. The mystery shopping and a behavioural experiment of the consumer market study 
of the Fitness Check are described further below in this Annex. 

Furthermore the results of the analysis of complaint data from the ECC-net database as well 
as of the analysis of the EU-wide sweep have fed into and informed the CRD study. 

The aim of the analysis of complaint data was to assess the impact of the CRD on consumer 
complaints,  and  eventually  on  the  degree  of  legal  certainty  that  the  new  Directive  has 
introduced. The analysis of complaints data is based on data provided by the Commission and 
related to the ECC-Net database. It should be emphasised that the ECC-Net database includes 
only cross-border cases and thus may underestimate the level of complaints. To account for 
this,  the  on-line  survey  also  asked  the  national  competent  authorities  and  consumer 
associations for the number of complaints as well as the nature of these complaints. Although 
the  amount  of  quantitative  data  was  limited,  any  information  provided  that  was  provided  is 
given  below  (refer  to  Section  3).  This  information  is  triangulated  with  that  of  the  ECC-Net 
database.  In  consultation  with  the  EC  project  manager  for  the  ECC-Net  database  it  became 
clear, however, that this should be interpreted with caution, owing to the different definitions 
that  still  apply  when  recording  the  data.  Further  work  is  being  undertaken  by  the  ECC-Net 
and the Commission services in this regard. 

The "EU sweep" is an EU-wide screening of websites by the CPC network125. It is conducted 
in  a  form  of  simultaneous,  coordinated  checks  to  identify  breaches  of  consumer  law  and  to 
subsequently  ensure  its  enforcement.  The  latest  sweep  conducted  in  2015  focused  on  the 
quality  of  pre-contractual  information  available  to  consumers  online  before  making  a 

125 2015 CRD sweep: http://ec.europa.eu/consumers/enforcement/sweeps/directive/index_en.htm  

78 

 
 
                                                 
purchase, as regulated by the CRD. Member States' authorities checked 743 websites making 
it  the  largest  sweep  conducted  at  EU-level  so  far.  Among  these  websites,  there  was  a  full 
spectrum  of  traders  ranging  from  smaller  players  to  big  e-commerce  platforms.  Information 
from the sweep has been used to assess the estimated level of compliance by traders and thus 
the effectiveness of the CRD as non-compliance is a reason for lack of effectiveness. 

Analysis of policy papers: NVivo software was used to analyse the policy papers submitted 
in response to the Commission's online public consultation. NVivo is software that supports 
qualitative  and  mixed  methods  research.  It  is  designed  to  help  organise,  analyse  and  find 
insights in unstructured or qualitative data, like position papers. 

Position papers relevant to the CRD were uploaded to NVivo for analysis. Once uploaded into 
the software, the top 50 most frequent words (exact matches) were generated using NVivo, in 
order to obtain the most frequent themes. The initial list generated by the software contained 
many words that were either too general and did not indicate a theme, such as ‘consumer’ and 
‘directive’,  or  that  related  to  themes  outside  the  scope  of  this  study  (e.g.  ‘marketing’, 
‘advertising’). This was due to the fact that many of the position papers contain information 
on several different directives. Some words were thus removed by adding them to the NVivo 
‘stop list’. These included words that were considered to be too general or outside the scope, 
such as: Using word trees generated from the most frequently used words, it was possible to 
explore the use of a word in context, and therefore to identify any key themes associated with 
that word. 

The  fifty  most  frequently  used  words  were  generated  using  a  ‘word  frequency’  search  in 
NVivo,  and  were  subsequently  formed  into  a  word  cloud  using  NVivo’s  ‘word  cloud’ 
function. 

The  evidence  from  the  sources  was  processed  according  to  the  following  typology  in 
ascending order of reliability: 

1.  Messages  communicated  from  stakeholders  but  unsupported  by  desk-research:  obviously 
some traders have been keen to emphasize the costs and problems with the interpretation of 
the CRD but sometimes their views are not supported by the consultant's interpretation of 
the  provisions  and  other  available  literature  (refer  for  instance  to  the  discussion  on  the 
impacts  of  the  CRD's  regulatory  choices  as  described  by  traders in  some  countries  when 
the regulatory choices have not been used). 

2.  Messages communicated from stakeholders and supported by desk-research. In particular 
messages that have been found to be grounded and supported by other literature (mystery 
shopping,  behavioural  study  and  other  studies  described  below)  have  been  given  greater 
weight (e.g. discussion on level of consumers' awareness).  

3.  Independent  Systematic  Review  of  at  least  the  majority  of  relevant  evidence,  including 

primary and secondary sources of data as well as experts' opinions.  

Care has been taken however to interpret the evidence based on the following: 

79 

 
 
 
•  Internal validity of the evidence: i.e. its precision and  reliability. Less weight  is  given to 
opinions, but when these have been shared by different stakeholders, these have been given 
greater  weight  (also  when  these  have  been  expressed  by  organisations  representing  the 
interest of more than an individual consumer and trader).  

•  Sample size and representativeness, including geographical scale: Particular care has been 
taken to note where a case or example is illustrative, or where it is representative of many 
cases in many countries. In particular, some issues with the CRD and interpretation of its 
articles have been identified that have the potential to be repeated in more than one country 
by setting a precedent. These have been included as relevant points in the assessment (e.g. 
refer  to  the  discussion  on  return  of  used  products,  water  utilities  and  inertia  selling  and 
online bidding platforms and exceptions from the right of withdrawal) 

•  Temporal  relevance.  The  evidence  on  the  impacts  represent  the  period  since  the  CRD 
implementation,  i.e.  2014,  but  in  comparison  with  the  previous  regulatory  regime.  The 
study  has  thus  focused  on  the  specific  provisions  of  the  Directive  that  are  new  (with 
reference to specific articles).  

•  Independence  of  source:  although  there  are  obvious  different  points  of  view  from 
consumers  and  traders  and  their  associations,  the  most  balanced  arguments  have  been 
presented to avoid extreme bias. 

For more information see the final report published:  http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=59332 

Consumer  market  study  to  support  the  Fitness  Check  of  consumer  rules  (Lot  3)  - 
Mystery shopping and behavioural experiments 

The  consumer  research  carried  out  by  the  Lot  3  contractor  of  the  Fitness  Check  exercise 
included  a  CRD-related  mystery  shopping  and  a  behavioural  experiment  in  8  selected 
Member  States.126  These  were  selected  to  constitute  a  representative  sample  whilst  also 
securing  sufficient  sample  sizes  of  respondents/participants.  The  selection  was  designed  to 
include a balance of number of factors, such as region, level of consumer knowledge of their 
rights,  trust  in  public  authorities  to  protect  their  rights,  and  the  number  of  consumer 
complaints.  

The results of these market research activities informed the study on the CRD evaluation and 
the present SWD.  

The  mystery  shopping  exercise  studied  the  level  of  traders’  compliance  with  specific 
provisions of the CRD relevant to purchasing digital content and tangible goods online. Most 
importantly,  the  mystery  shopping  exercise  was  designed  to  test  all  relevant  provisions 
regarding  pre-contractual  information  requirements  and  the  right  of  withdrawal  for  each 
product  category.  In  total  341  mystery  shopping  assessments  were  conducted,  with  a 
maximum  of  3  assessments  per  mystery  shopper,  which  translates  into  a  minimum  of  15 

126 Bulgaria, Finland, France, Germany, Greece, Netherlands, Poland, and Portugal 

80 

 
 
 
                                                 
shoppers  per  country  and  a  total  minimum  of  120  mystery  shoppers  participating  in  the 
exercise. 

The  selection  of  sectors  and  products  was  done  by  using  the  most  recent  version  of  the 
Harmonised  Database  of  Consumer  Complaints.  The  complaints  were  filtered  falling  in 
categories relevant to the scope of the CRD.  

The ICT (Information and Communication Technology) goods market was a clear choice in 
terms of the proportion of complaints related to issues outlined in the CRD. Within the ICT 
sector,  two  specific  tangible  products  that  fall  within  the  price  range  of  20-50  EUR  (upper 
limit  due  to  budget  and  risk  constraints)  were  selected:  computer  mice  and  memory  (USB) 
sticks.  These  products  are  widely  available  in  online  electronics  retailers,  reaching  a  broad 
range  of  European  consumers.  In  terms  of  digital  content,  the  following  two  product 
categories were chosen: security software and music downloads. Security software and music 
downloaded  in  digital  format  are  two  widespread  and  common  product  types  within  the 
digital content sector.  

Following the European Commission’s requirements, the largest online shops in each country, 
with  at  least  three  per  country  having  an  international  presence,  were  chosen.  To  select  the 
largest retailers, internet traffic data of visitors in that country, provided by the SimilarWeb 
online database was used as a proxy for market share SimilarWeb updates their data with high 
frequency (once per month). SimilarWeb rankings from July and August 2016 were used to 
create the retailer lists. 

Since  the  presence  of  sellers  of  music  downloads  varies  a  lot  between  countries,  these 
evaluations  could  not  be  distributed  equally  across  the  countries.  In  order  to  obtain  a 
sufficient  number  of  completed  evaluations  for  this  product  type,  a  larger  number  of 
assessments  were  included  for  countries  with  a  greater  presence  of  music  sellers  to 
compensate  for  countries  with  a  smaller  number  of  music  sellers.  The  included  retailers 
represent all meaningful retailers in the markets.  

The mystery shopping was broadly structured around three stages (two for security software 
and  music  downloads).  In  the  first  stage  (1),  mystery  shoppers  visited  the  retailer’s  website 
and  reported  on  the  availability  of  the  seller  and  product  information  and  the  retailer’s 
compliance  with  information  requirements  before  and  when  making  a  purchase.  During  the 
second stage (2), the mystery shoppers documented the delivery of the product and the ease of 
finding  information  about  the  product  return  procedure.  Since  this  is  only  applicable  for 
tangible  goods,  this  step  was  skipped  for  mystery  shoppers  for  security  software  and  music 
downloads. During the third stage (3) the mystery shoppers returned the product and reported 
about  the  reimbursement  they  may  have  received  and  their  satisfaction  with  the  return 
procedure. 

In general, mystery shoppers perceived a relatively good level of compliance in all scenarios. 
However,  information  on  right  of  withdrawal  was  often  missing,  in  particular  for  digital 
contents. 

81 

 
 
 
The  consumer  behavioural  experiment  examined  consumer  understanding  and  the  use  of 
pre-contractual  information  for  products  in  two  sectors:  the  digital  content  sector  and  e-
commerce of ICT goods. The products were smartphones and streaming content (movies).  

The experiment investigated if information requirements in the CRD are comprehensible and 
perceived  as  relevant  by  consumers.  4,149  respondents  completed  this  experiment.  The 
included respondents were a representation of the national population of consumers aged 18+ 
in the respective countries. In order to ensure this, quotas were set on age (based on three age 
groups:  18-34,  35-54,  and  55+)  and  gender.  Furthermore,  when  recruiting  sample  from  the 
panel, a spread of education, work status and financial situation was taken into account. 

The investigated sectors and products were chosen drawing on the findings of the most recent 
version of the European Consumer Complaints Registration System. 

A  concise  post-experiment  questionnaire  measured  relevant  respondent  characteristics.  For 
example a relevant variable is whether the respondent is an expert in consumer law (see also 
Experiment  2).  This  may  influence  how  easily  the  respondent  understands  specific  pre-
contractual information as well as his/her knowledge on the CRD, and, therefore, his/her use 
of pre-contractual information.  

Respondents’ experience with e-commerce as well as familiarity with the product categories 
were  also  measured.  Those  more  familiar  with  e-commerce  may  be  more  aware  of  pre-
contractual information requirements and those more familiar with the product categories may 
be  more  aware  of  specific  rules,  such  as  having  to  give  your  prior  express  consent  to  start 
downloading or streaming digital content. In addition, those more familiar with the products 
may need less information about them, and hence, might have less need of duplication (i.e., 
point out the redundancy more often). 

The  study  team  also  measured  agreed  socio-demographics,  such  as  gender,  age,  level  of 
education, financial status and work status. 

In  general,  respondents  indicated  that  they  understood  CRD-required  information  items  and 
found the information relevant. 

The study's report, prepared by the external contractors, was published on the Commission's 
website and is available at  

http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332 

82