Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Directive 93/13/EEC of 5 April 1993, Directive 98/6/EC of the European Parliament and of the Council, Directive 2005/29/EC of the European Parliament and of the Council and Directive 2011/83/EU of the European Parliament and of the Council as regards better enforcement and modernisation of EU consumer protection rules
Date: 2018-04-11
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: advertising malpractice, comparative advertising, consumer information, consumer law, consumer policy, electronic commerce, penalty, publishing of prices, single market, unfair terms of contract

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   EUROPEAN COMMISSION  Brussels, 11.4.2018 COM(2018) 185 final 2018/0090 (COD)  Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Directive 93/13/EEC of 5 April 1993, Directive 98/6/EC of the European Parliament and of the Council, Directive 2005/29/EC of the European Parliament and of the Council and Directive 2011/83/EU of the European Parliament and of the Council as regards better enforcement and modernisation of EU consumer protection rules (Text with EEA relevance) {SWD(2018) 96} - {SWD(2018) 98}  
 
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Reasons for and objectives of the proposal 

This  proposal  aims  at  amending  four  EU  directives  that  protect  the  economic  interests  of 
consumers.  Most  of  the  amendments  concern  the  Unfair  Commercial  Practices  Directive 
2005/29/EC1  and  the  Consumer  Rights  Directive  2011/83/EU2.  Each  of  the  other  two 
Directives  –  the  Unfair  Contract  Terms  Directive  93/13/EEC3  and  the  Price  Indication 
Directive  98/6/EC4  –  are  only  amended  concerning  penalties.  This  proposal  is  presented 
together with a proposal on representative actions for the protection of the collective interests 
of consumers, and repealing Directive 2009/22/EC5.  

The  Treaties  (Articles 114  and  169 TFEU)  and  the  Charter  of  Fundamental  Rights 
(Article 38)  require  a  high  level  of  consumer  protection  in  the  Union.  Union  consumer 
legislation also contributes to the proper functioning of the internal market. It aims to ensure 
that  business-to-consumer  relations  are  fair  and  transparent,  which  ultimately  supports  the 
overall welfare of European consumers and the Union economy.  

This proposal is a follow-up to the REFIT Fitness Check of EU Consumer and Marketing law, 
published on 23 May 2017 (the 'Fitness Check')6 and the evaluation of the Consumer Rights 
Directive 2011/83/EU, which was conducted in parallel to the Fitness Check and published on 
that same day (the 'CRD Evaluation').7  

The Fitness Check and the CRD evaluation concluded that the substantive EU consumer rules 
included  in  the  four  Directives,  which  are  amended  by  this  proposal,  are  overall  fit  for 
purpose.  However,  the results also  stressed  the importance  of  better  applying  and  enforcing 
the rules and modernising them in line with developments in the digital sphere. It also stressed 
the importance of reducing regulatory burden in some areas.  

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Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair 
business-to-consumer  commercial  practices  in  the  internal  market  and  amending  Council  Directive 
84/450/EEC,  Directives  97/7/EC,  98/27/EC  and  2002/65/EC  of  the  European  Parliament  and  of  the 
Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ L 149, 
11.6.2005, p. 22). 
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer 
rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament 
and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European 
Parliament and of the Council (OJ L 304, 22.11.2011, p. 64). 
Council  Directive  93/13/EEC  of  5  April  1993  on  unfair  terms  in  consumer  contracts  (OJ  L  95, 
21.4.1993, p. 29). 
Directive  98/6/EC  of  the  European  Parliament  and  of  the  Council  of  16  February  1998  on  consumer 
protection in the indication of the prices of products offered to consumers (OJ L 80, 18.3.1998, p. 27). 
COM(2018) 184.  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on 
representative actions for the protection of the collective interests of consumers, and repealing Directive 
2009/22/EC. 
The  Fitness  Check  covered  the  Unfair  Contract  Terms  Directive  93/13/EEC,  Consumer  Sales  and 
Guarantees  Directive  1999/44/EC,  Price  Indication  Directive  98/6/EC,  Unfair  Commercial  Practices 
Directive 2005/29/EC and Injunctions Directive 2009/22/EC. For results, see SWD (2017) 208 final and 
SWD(2017)  209 
final  of  23.5.2017,  available  at:  http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=59332.    
For  results,  see  COM(2017)  259  final,  SWD(2017)169  final  and  SWD(2017)  170  final  of  23.5.2017, 
available at: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332.    

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The  evaluation  findings  have  been  given  more  importance  by  recent  cross-border 
infringements  of  EU  consumer  law,  in  particular,  the  ‘Dieselgate’  scandal  (where  car 
manufacturers  installed  technology  in  cars  to  cheat  emissions  tests).  Such  infringements 
undermine  consumer  trust  in  the  Single  Market.  They  have  also  sparked  a  debate  about 
whether  the  EU  has  strong  enough  mechanisms  in  place  to  handle  such  issues,  enforce 
consumer protection rules and provide redress to victims.  

For these reasons, in the 2017 State of the Union Address, Commission President Jean-Claude 
Juncker  announced  the  'New  Deal  for  Consumer',  which  aims  at  strengthening  the 
enforcement of EU consumer law amid a growing risk of EU-wide infringements. The present 
proposal,  which  introduces  targeted  amendments  in  four  consumer  law  directives,  is  a  key 
part of this ‘New Deal’. In summary, the proposal aims at making the improvements outlined 
below. 

  More  effective,  proportionate  and  dissuasive  penalties  for  widespread  cross-
border  infringements.  The  recently  adopted  Regulation  (EU)  2017/23948  regulates 
how national consumer enforcement authorities work together to address cross-border 
infringements of consumer law. In particular, it focuses on widespread infringements 
harming  consumers  in  several  Member  States  and  widespread  infringements  with  a 
Union dimension.9 For this type of widespread infringement, national authorities may 
need  to  impose  effective,  proportionate  and  dissuasive  penalties  in  a  coordinated 
manner. However, the available penalties for infringements of consumer law are very 
different across the EU, and are often set at a low level. Under the proposal, national 
authorities  will  have  the  power  to  impose  a  fine  of  at  least  up  to  4 %  of  a  trader's 
turnover  for  such  widespread  infringements.  More  generally,  the  national  authorities 
should decide on the level of penalties based on common parameters, in particular the 
cross-border nature of the infringement. These strengthened rules on penalties will be 
inserted in the four directives concerned.  

  Right to individual remedies for consumers. The proposal envisages that consumers 
will have the right to individual remedies when they are harmed by unfair commercial 
practices,  such  as  aggressive  marketing.  In  particular,  Member  States  should  make 
both  contractual  and  non-contractual  remedies  available.  As  a  minimum,  the 
contractual remedies should include the right to contract termination. Non-contractual 
remedies should, as a minimum, include the right to compensation for damages. These 
rights will be added to Directive 2005/29/EC on unfair commercial practices.  

  More transparency for consumers in online marketplaces. Today, when consumers 
visit  online  marketplaces,  they  are  exposed  to  a  variety  of  offers  from  third-party 
suppliers  selling  on  the  online  marketplace  (and  offers  from  the  online  marketplace 
itself). Consumers do not always know how the offers they are presented with on the 

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Regulation (EU)  2017/2394 of  the European  Parliament  and  of  the  Council of 12  December 2017 on 
cooperation between national authorities responsible for the enforcement of consumer protection laws 
and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1). This Regulation will make 
cross-border public enforcement more effective and give the relevant national authorities a uniform set 
of  powers  to  work  more  efficiently  together  against  widespread  infringements.  It  also  enables  the 
European  Commission  to  launch  and  coordinate  common  enforcement  actions  to  address  EU-wide 
infringements. 
The revised CPC Regulation defines 'widespread infringements' as illegal practices that affect at least 
three  EU  Member  States,  and  'widespread  infringement  with  a  Union  dimension'  as  practices  which 
harm a large majority of EU consumers, i.e. in two-thirds of Member States or more, and amount to two 
thirds of the EU population or more. 

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online marketplace have been ranked and from whom they are buying (whether from 
professional  traders  or  other  consumers).  Many  consumers  are  under  the  impression 
that they are buying from the online marketplace and are thus entering into a contract 
with it. In reality, they may be buying from a third-party supplier listed on the online 
marketplace  who  is  not  a  trader.  As  a  result,  consumers  may  falsely  think  they  are 
dealing  with  professional  traders  (hence  benefitting  from  consumer  rights).  This 
confusion can cause problems in case something goes wrong with an online purchase, 
because it is not always easy to establish who is responsible. The proposal introduces 
additional  information  requirements  in  Directive  2011/83/EU,  which  require  online 
marketplaces to clearly inform consumers about: (a) the main parameters determining 
ranking of the different offers, (b) whether the contract is concluded with a trader or an 
individual,  (c)  whether  consumer  protection  legislation  applies  and  (d)  which  trader 
(third party supplier or online marketplace) is responsible for ensuring consumer rights 
related to the contract (such as the right of withdrawal or legal guarantee).  

 

In  addition,  consumers  using  digital  applications  such  as  online  marketplaces, 
comparison  tools,  app  stores  or  search  engines  expect  'natural'  or  'organic'  search 
results based on relevance to their search queries, not on payment by third parties. In 
line with the 2016 Guidance paper10 on Directive 2005/29/EC, the relevant provisions 
of  that  Directive  should  be  clarified  to  make  it  clear  that  online  platforms  must 
indicate  search  results  that  contain  'paid  placements',  i.e.  where  third  parties  pay  for 
higher ranking, or 'paid inclusion', i.e. where third parties pay to be included in the list 
of search results. 

  Extending  protection  of  consumers  in  respect  of  digital  services.  The  proposal 
extends  the  application  of  Directive  2011/83/EU  to  digital  services  for  which 
consumers do not pay money but provide personal data, such as: cloud storage, social 
media  and  e-mail  accounts.  Given  the  increasing  economic  value  of  personal  data, 
those services cannot be regarded as simply  ‘free’. Consumers should therefore have 
the  same  right  to  pre-contractual  information  and  to  cancel  the  contract  within  a  14-
day  right-of-withdrawal  period,  regardless  of  whether  they  pay  for  the  service  with 
money or provide personal data.  

  Removing  burdens  for  businesses.  The  proposal  amends  Directive  2011/83/EU  by 
granting  traders  more  flexibility  in  choosing  the  most  appropriate  means  of 
communication  with  consumers.  It  will  allow  traders  to  use  new  means  of  online 
communication, such as web forms or chats as alternative to traditional e-mail as long 
as the consumer can keep track of the communication with the trader. It also removes 
two  specific  obligations  on  traders  about  the  14-day  right  of  withdrawal  that  have 
proven to constitute a disproportionate burden. The first obligation is the obligation for 
the  trader  to  accept  the  right  of  withdrawal  even  where  a  consumer  has  used  an 
ordered good instead of only trying it out in the same way they could have done in a 
brick-and-mortar  shop.  The  second  obligation  is  the  obligation  for  the  trader  to 
reimburse  the consumer  even  before  the trader has  received the returned goods back 
from the consumer. 

  Clarifying Member States' freedom to adopt rules on certain forms and aspects 
of  off-premises  sales.  Whilst  off-premises  sales  constitute  a  legitimate  and  well 
established  sales  channel,  the  proposal  clarifies  that  Directive  2005/29/EC  does  not 

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Commission  Staff  Working  Document  “Guidance  on  the  implementation/  application  of  Directive 
2005/29/EC on Unfair Commercial Practices”, SWD(2016) 163 final of 25.5.2016. 

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prevent  Member  States  from  adopting  rules  to  protect  the  legitimate  interests  of 
consumers  with  regard  to  some  particularly  aggressive  or  misleading  marketing  or 
selling practices in the context of unsolicited visits by a trader to a consumer's home or 
with regard to commercial excursions organised by a trader with the aim or effect of 
promoting  or  selling  products  to  consumers,  where  such  restrictions  are  justified  on 
grounds of public policy or respect for private life. 

  Clarifying  the  rules  on  misleading  marketing  of  'dual  quality'  products.  The 
proposal amends Directive 2005/29/EC making it explicit that a commercial practice 
involving the marketing of a product as being identical to the same product marketed 
in  several  other  Member  States,  where  those  products  have  significantly  different 
composition or characteristics causing or likely to cause the average consumer to take 
a  transactional  decision  that  he  would  not  have  taken  otherwise,  is  a  misleading 
commercial practice which competent authorities should assess and address on a case-
by-case basis according to the provisions of the Directive.  

1.2. 

Consistency with existing policy provisions in the policy area 

This  proposal  is  consistent  with  several  other  legislative  and  non-legislative  actions  in  the 
consumer  protection  area.  In  particular,  this  proposal  is  consistent  with  the  recently  revised 
Regulation  (EU) 2017/2394  on  consumer  protection  cooperation  (CPC),  which  aims  at 
boosting cross-border public enforcement of consumer protection rules. The strengthened rules 
on  penalties  for  breaches  to  EU  consumer  law  provided  in  this  proposal  will  increase  the 
deterrent effect and effectiveness of the CPC coordinated actions for widespread infringements 
and  widespread  infringements  with  a  Union  dimension.  It  was  highlighted  during  the 
negotiations  for  the  revised  CPC  Regulation  that  ‘effective,  proportionate  and  dissuasive 
penalties  in  all  Member  States  are  essential  for  the  success  of  the  Regulation.  However,  the 
co-legislators of the CPC Regulation decided that it was more appropriate to address the need 
for  a  strengthened  level  of  penalties  as  part  of  the  possible  revision  of  substantive  EU 
consumer law.11  

The  rules  on  individual  remedies  to  consumers  affected  by  breaches  to  the  Directive 
2005/29/EC will be complementary to the EU efforts to make it easier for consumers to seek 
redress  thanks  to  the  other  proposal  of  the  ‘New  Deal  for  Consumers’  package,  i.e.  the 
proposal on representative actions for the protection of the collective interests of consumers, 
and repealing Directive 2009/22/EC. In addition, individual consumers affected by breaches 
to  Directive  2005/29/EC  may  rely  on  the  proposed  remedies  also  within  the  small  claims 
procedure  and  alternative/online  dispute  resolution.  Under  the  Directive  on  consumer 
alternative  dispute  resolution  (ADR)12  EU  consumers  have  access  to  quality-assured 
out-of-court  dispute-resolution  systems  for  both  domestic  and  cross-border  contractual 
disputes.  The  Commission  has  also  created  an  online  dispute  resolution  platform  (ODR 

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See  Recital  16  of  the  revised  CPC  Regulation,  which  reads:  '…  In  view  of  the  findings  of  the 
Commission’s Report of the Fitness Check of consumer and marketing law, it might be considered to be 
necessary to strengthen the level of penalties for breaches of Union consumer law.'     
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 (Directive on consumer ADR) (OJ L 165, 18.6.2013, p. 63).  

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platform).13  This  platform  helps  consumers  and  traders  resolve  their  domestic  and  cross-
border disputes over online purchases of goods and services.  

This proposal goes hand-in-hand with efforts to ensure better knowledge of EU consumer law 
among  consumers,  traders  and  legal  practitioners.  There  are  several  activities  planned  to 
achieve this as listed below. 

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 

In  2018,  the  Commission  will  launch  an  EU-wide  awareness-raising  campaign  on 
consumer rights, which will build on the lessons learnt from a 2014-2016 Consumer 
Rights Campaign.14  

The Commission is carrying out a pilot project on training small and medium-sized 
businesses in the digital age (the ‘ConsumerLawReady’ initiative15)  

The Commission plans to roll out a number of training activities for judges and other 
legal  practitioners  under  the  revamped  European  Judicial  Training  Strategy  for 
2019-202516.  

To  make  it  easier  for  all  market  players  to  understand  their  contractual  rights  and 
duties, the Commission is coordinating a self-regulatory initiative within the REFIT 
stakeholder  group.  The  initiative  is  aimed  at  more  clearly  presenting  to  consumers 
both mandatory pre-contractual information and standard terms and conditions. 

To further enhance legal certainty for all market players, the Commission has been 
working  on  several  guidance  documents  to  ensure  better  understanding  of  EU 
consumer  law.17  It  is  about  to  publish  a  new  Consumer  Law  Database  within  the 
E-Justice Portal. This database will contain EU and national case-law and will also 
allow access to administrative decisions on EU consumer legislation.   

1.3. 

Consistency with other EU policies 

The  four  consumer  law  directives  amended  by  this  proposal  apply  across  all  economic 
sectors.  Due  to  their  general  scope,  they  apply  to  many  aspects  of  business-to-consumer 
transactions that are also covered by other EU legislation. The interplay between the different 
bodies  of  EU  law  is  regulated  by  the  lex  specialis  principle.  Under  this  principle,  the 
provisions  of  the  general  consumer  law  directives  come  into  play  only  when  the  relevant 
aspects  of  business-to-consumer  transactions  are  not  disciplined  by  the  provisions  of 
sector-specific  EU  law.  Thus,  these  general  consumer  law  directives  work  as  a  ‘safety  net’, 

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Available since 15 February 2016, Regulation (EU) No 524/2013 of the European Parliament and of the 
Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation 
(EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, 
p. 1).    
See also: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=30149. 
The ConsumerLawReady training project is being implemented thanks to the financing granted by the 
IMCO  Committee  of  the  European  Parliament.  A  consortium  consisting  of  BEUC,  UEAPME  and 
Eurochambres  is  managing  this  project  on  the  Commission's  behalf.  Training  material  has  been 
prepared,  translated  and  adapted  for  each  Member  State.  The  training  of  small  and  medium-sized 
businesses  started  in  December  2017  and  will  continue  throughout  2018.  A  dedicated  website  was 
created in November 2017: www.consumerlawready.eu. 
Strategy  under  preparation;  a  Roadmap 
regulation/initiatives/ares-2017-5432247_en. 
Guidance  on  the  Unfair  Commercial  Practices  Directive  2005/29/EC,  SWD(2016)163  final  of 
25.05.2016.  Guidance  on  the  application  of  EU  food  and  consumer  protection  law  to  issues  of  dual 
quality  of  products  -  the  specific  case  of  food,  26  September  2017  (C(2017)  6532  final).  A  new 
Guidance  on  the  Unfair  Contract  Terms  Directive  93/13/EEC  is  planned  for  the  end  of  2018  and 
updated Guidance on the Consumer Rights Directive 2011/83/EU in 2019.  

is  available  at  https://ec.europa.eu/info/law/better-

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ensuring  that  a  high  level  of  consumer  protection  can  be  maintained  in  all  sectors,  by 
complementing and filling gaps in sector-specific Union law.   

The  proposed  amendments  that  deal  with  a  lack  of  transparency  in  business-to-consumer 
transactions in online marketplaces and of consumer protection for digital services will help 
complete  the  Digital  Single  Market  (DSM)18  and  will  ensure  consistency  with  another 
important element of the Digital Single Market Strategy, i.e. the Commission's proposal for a 
Directive  on  contracts  for  the  supply  of  digital  content.19  That  proposal  defines  consumer 
rights when the digital content and digital services acquired by the consumer do not conform 
with  the  contract,  covering  also  contracts  which  do  not  include  consumer’s  payment  in 
money.  Directive  2011/83/EU  also  applies  to  the  supply  of  digital  content;  however,  it 
currently  only  applies  to  services,  including  digital  services,  provided  against  monetary 
payment.  According  to  the  Digital  Content  proposal  there  is  notably  a  lack  of  conformity 
where  the  content  or  services  do  not  correspond  to  the  specifications  provided  as 
pre-contractual  information,  and  the  pre-contractual  information requirements  are  laid  down 
in  Directive  2011/83/EU.  For  the  above  reasons,  it  is  necessary  to  align  the  scope  of 
application of Directive 2011/83/EU to that of the current Digital Content Directive in respect 
of  the  definitions  of  ‘digital  content’  and  ‘digital  services’.  The  Justice  and  Home  Affairs 
Council  specifically  invited  the  Commission  to  ensure  consistency  between  Directive 
2011/83/EU  and  the  Digital  Content  proposal,  particularly  for  the  definitions  of  ‘digital 
content’ and ‘digital services’.20  

The  amendment  of  Directive  2011/83/EU  to  include  digital  services  irrespective  of  a 
monetary  payment  is  complementary  to  the  General  Data  Protection  Regulation  2016/679. 
Specifically,  the  right  to  terminate  the  contract  for  digital  services  within  the  14-day 
right-of-withdrawal  period  will  remove  the  contractual  basis  for  the  processing  of  personal 
data under the General Data Protection Regulation. This will in turn trigger the application of 
the rights provided by the General Data Protection Regulation, e.g. the right to be forgotten 
and the right to data portability. 

On  the  proposed  amendment  for  online  marketplaces,  the  2016  Communication  on  Online 
Platforms said that the Commission ‘will further assess any additional need to update existing 
consumer protection rules in relation to platforms as part of the regulatory fitness check of EU 
consumer  and  marketing  law  in  2017’.21  In  December  2016,  the  European  Economic  and 
Social  Committee  suggested  adapting  the  pre-contractual  information  requirements  to  the 
needs of consumer buying from e-commerce  platforms in  general.22 The  European Council, 

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22 

For further information on Digital Single Market see: https://ec.europa.eu/commission/priorities/digital-
single-market_en.    
Proposal  for  a  Directive  on  certain  aspects  concerning  contracts  for  the  supply  of  digital  content, 
COM(2015)0634  final  of  9.12.2015.  For  further  information:  https://ec.europa.eu/info/business-
economy-euro/doing-business-eu/contract-rules/digital-contracts/digital-contract-rules_en. 
Outcome of the Council Meeting 3473rd Council meeting Justice and Home Affairs, Luxembourg, 9 and 
10 June 2016, available at: http://data.consilium.europa.eu/doc/document/ST-9979-2016-INIT/en/pdf. It 
refers to Presidency Note 9768/16 of 2 June 2016, which stresses the need for consistency between the 
Proposed Directive on Digital Content and Directive 2011/83/EU inviting the Commission to assess the 
application  of  that  Directive  to  all  types  of  contracts  for  the  supply  of  digital  content  covered  by  the 
proposed 
at: 
Note 
Content. 
http://data.consilium.europa.eu/doc/document/ST-9768-2016-INIT/en/pdf.  
COM(2016) 
page 
of 
content/EN/TXT/PDF/?uri=CELEX:52016DC0288&from=EN. 
Opinion  by  the  Economic  and  Social  Committee  on  the  Communication  on  Online  Platforms, 
TEN/601-EESC-2016,  http://webapi.eesc.europa.eu/documentsanonymous/EESC-2016-04519-00-01-
AC-TRA-en.docx.  

http://eur-lex.europa.eu/legal-

25  May 

Directive 

available 

Digital 

2016, 

final 

The 

288 

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on 

is 

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on  19 October 2017,  underlined  ‘the  necessity  of  increased  transparency  in  platforms’ 
practices and uses’.23  

This  proposal  is  complementary  to  the  Commission's  action  on  unfair  platform-to-business 
contract terms and trading practices (the platform-to-business initiative), as announced in the 
May  2017  mid-term  review  of  the  Digital  Single  Market.24  This  proposal  and  the 
platform-to-business initiative pursue shared goals of greater transparency and fairness in the 
transactions  that  take  place  on  online  platforms.  This  proposal  deals  with  specific  problems, 
already identified by the CRD evaluation, namely that consumers often do not know who their 
contractual  counterpart  is,  when  they  shop  through  online  marketplaces.  As  a  result, 
consumers are often unclear as to whether they can exercise their EU consumer rights, and if 
so  who  they  need  to  address  to  ensure  these  rights  are  upheld.  Another  way  in  which  this 
proposal  and  the  platform-to-business  initiative  are  complementary  is  that  they  both  seek  to 
ensure transparency of the main parameters determining ranking in, respectively, platform-to-
consumer and platform-to-business relations.  

Better EU consumer legislation can also be expected to bring benefits to other EU policy areas 
where business-to-consumer commercial transactions play an important role. One example is 
the Commission's work on sustainable consumption, including through the Circular Economy 
Action  Plan25,  which  contains  also  actions  to  address  misleading  environmental  claims  and 
planned  obsolescence.  Although  already  captured  under  the  UCPD,  stronger  penalties  and 
tools for redress  will allow combating  infringements of consumer rights  in  these  areas  more 
effectively.  

2. 

 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Consumer  protection  is  a  competence  shared  between  the  EU  and  the  Member  States.  As 
stipulated in Article 169 of the Treaty on the Functioning of the European Union, the EU must 
contribute to protecting the economic interests of consumers and to promoting their right to 
information  and  education  in  order  to  safeguard  their  interests.  This  proposal  is  based  on 
Article 114  of  the  Treaty  on  the  Functioning  of  the  European  Union,  (which  refers  to  the 
completion  of  the  internal  market),  and  Article 169  of  the  Treaty  on  the  Functioning  of  the 
European Union. 

 

 Subsidiarity (for non-exclusive competence)  

This  proposal  amends  EU  consumer  protection  rules,  whose  adoption  at  EU  level  has  been 
deemed necessary and in line with the principle of subsidiarity. A better functioning internal 
market  cannot  be  achieved  by  national  laws  alone.  EU  consumer  protection  rules  remain 
relevant  as  the  internal  market  deepens,  and  the  number  of  EU  consumer  transactions 
increases between Member States.  

From an economic perspective, the behaviour of traders towards consumers is likely to have a 
large impact on the operation of consumer markets. This is because traders have a very large 
influence  on  consumer  information  and  decision-making  in  such  markets.  Consumer  policy 

23 
24 

25 

EN 

European Council Conclusions on Migration, Digital Europe, Security and Defence (19 October 2017). 
Communication  COM(2017)  228  final  of  10  May  2017: 
  https://ec.europa.eu/digital-single-
market/en/content/mid-term-review-digital-single-market-dsm-good-moment-take-stock. 
Communication from the Commission 'Closing the loop - An EU action plan for the Circular Economy', 
http://eur-lex.europa.eu/legal-
COM/2015/0614 
content/EN/TXT/?uri=CELEX%3A52015DC0614.  

2.12.2015: 

final 

of 

7 

  EN 

 
                                                 
therefore  has  the  potential  to  improve  market  forces.  This  can  help  foster  competition  and 
improve efficiency.   

Within the EU, the volume and intensity of cross-border trade are high enough (in fact, they 
are higher than in any other large trading area in the world)26 to make this cross-border trade 
vulnerable to inconsistent — or even merely divergent — policy choices by Member States. 
Moreover,  traders  can  reach  consumers  across  Member  States'  borders.  This  can  create 
problems  that  national  lawmakers  and  regulators  are  ill-placed  to  adequately  address  in 
isolation. 

This  proposal  amends  the  existing  EU  consumer  protection  rules.  Directive  2005/29/EC 
ensures  full  harmonisation  of  national  rules  on  unfair  commercial  practices  harming 
consumers'  economic  interests.  Directive  2011/83/EU  essentially  provides  fully  harmonised 
rules  on  pre-contractual  information  requirements  and  rights  to  withdraw  for  consumer 
contracts. New national legislation within the scope of these Directives would go against the 
fully harmonised acquis that is already in place. 

The EU-wide nature of the problem, requiring appropriate enforcement action at EU level, is 
particularly evident in the case of illegal practices affecting consumers in several EU Member 
States  at  the  same  time.  Such  widespread  infringements  of  consumer  rights  have  now  been 
legally  defined  by  the  revised  CPC  Regulation,  which  creates  a  powerful  procedural 
framework  for  cooperation  between  national  enforcement  authorities.  To  be  fully  effective, 
enforcement across the EU must also be grounded in a common and uniform substantive legal 
framework. Enforcement of consumer rights and redress opportunities across the EU cannot 
be made more effective by actions taken exclusively by Member States on their own.   

For  online  trade,  it  does  not  seem  possible  to  sufficiently  address  at  national  level  the 
problems  consumers  encounter.  In  particular,  many  online  marketplaces  and  providers  of 
digital services trade across Europe and across borders.   

The Fitness Check and the CRD evaluation confirmed that the EU consumer and marketing 
law  acquis  has  helped  build  a  high  level  of  consumer  protection  across  the  EU.  It  has  also 
helped  the  internal  market  operate  better,  and  helped  reduce  costs  for  businesses  that  sell 
products and services across borders. Businesses that sell their products and services in other 
EU  countries  benefit  from  the  harmonised  legislation  that  facilitates  selling  cross-border  to 
consumers in other EU countries.  

Directive  2005/29/EC,  in  particular,  has  replaced  divergent  regulations  across  the  EU  by 
providing  for  a  uniform  legal  framework  in  all  Member  States.  Its  cross-cutting,  principle-
based  approach  provides  a  useful  and  flexible  framework  across  the  EU,  while  the 
introduction  of  the  blacklist  helped  eliminate  some  unfair  practices  on  various  national 
markets. Similarly,  Directive 2011/83/EU has  contributed significantly to  the functioning of 
the  internal  market  and  ensured  a  high  common  level  of  consumer  protection  by  removing 
differences between national laws relating to business-to-consumer contracts. It has increased 
legal certainty  for traders and consumers, especially  those  engaged  in  cross-border trade. In 
particular, consumer trust has increased significantly in recent years in the growing market of 
cross-border e-commerce.27   

26 

27 

EN 

Trade 

Wold 
Organization, 
https://www.wto.org/english/res_e/statis_e/its2015_e/its2015_e.pdf. 
According  to  the  2017  Consumer  Conditions  Scoreboard,  between  2012  and  2016,  the  proportion  of 
consumers  who  felt  confident  purchasing  goods  or  services  via  the  internet  from  retailers  or  service 
providers in another EU country has increased by 24 percentage points to reach 58%. 

International 

Statistics 

Trade 

2015: 

8 

  EN 

 
                                                 
The Fitness Check Report said that the greatest contribution made by EU consumer law is its 
common  harmonised  rules.  These  rules  enable  national  enforcement  authorities  to  more 
effectively address cross-border infringements that harm consumers in several Member States. 
For instance, without further EU-level action to ensure that fines are ‘effective, proportionate 
and dissuasive’, the existing divergent national systems for fines would likely not be enough 
to  ensure  fair  competition  for  compliant  traders  and  would  undermine  the  enforcement 
cooperation  under 
the  revised  CPC  Regulation.  Establishing  fairer  competition  by 
approximating national rules on fines  would also bring EU consumer law more in line with 
the penalty frameworks for EU competition and data protection law. Synergies between these 
three fields, particularly in the coordination of enforcement activities, have been increasingly 
acknowledged at the EU level.28  

It  is  also  in  line  with  the  subsidiarity  principle  to  clarify  within  Directive  2005/29/EC, 
Member States' freedom to adopt provisions to protect the legitimate interests of consumers 
from  unsolicited  visits  for  direct  marketing  purposes  or  commercial  excursions,  where  such 
restrictions are justified on grounds of public policy or the protection of the respect for private 
life,  as  it  will  ensure  that  Member  States  would  be  allowed  to  regulate  in  an  area  where 
impact on the Single Market is considered very limited.     

 

Proportionality 

The  measures  in  the  proposal  are  proportionate  to  the  objectives  of  improving  compliance 
with consumer law and modernisation and burden reduction. 

On penalties, the proposal harmonises the minimum level of penalties by requiring Member 
States to introduce fines based on a trader’s turnover only for widespread infringements and 
widespread  infringements  of  a  Union  dimension  where  such  harmonisation  is  clearly 
necessary to ensure the coordination of penalties required by the revised CPC Regulation. For 
all  other  infringements,  the  proposal  limits  itself  to  only  setting  non-exhaustive  criteria  that 
should  be  taken  into  account  in  the  application  of  specific  penalties.  For  these  other 
infringements,  the proposal does  not  harmonise these  penalties and  even  makes it clear that 
these criteria do not necessarily apply to minor infringements. 

On the requirement in the area of individual remedies for violations of Directive 2005/29/EU, 
the proposal gives Member States some freedom of manoeuvre on the specific remedies to be 
made available. The proposal only requires as a minimum the contractual remedy of contract 
termination and the non-contractual remedy of compensation of damages. These are the two 
most common remedies today in the national civil law of the Member States.  

The proportionality of the proposed extension of Directive 2011/83/EU to digital services not 
provided against monetary payment is ensured by aligning the scope of application with that 
of the future Digital Content Directive, and also exempting the contracts for digital services 
under  which  the  consumer  merely  provides  personal  data  from  some  of  the  formal 
requirements of the Directive 2011/83/EU that are only relevant in case of paid-for contracts, 
i.e. the requirement to obtain the consumer consent for immediate provision of service which 

28 

On 14 March 2017 the European Parliament adopted a resolution on ‘fundamental rights implications of 
big data: privacy, data protection, non-discrimination, security and law-enforcement’ which included a 
call  for  ‘closer  cooperation  and  coherence  between  different  regulators  and  supervisory  competition, 
consumer  protection  and  data  protection  authorities  at  national  and  EU  level’.  The  European  Data 
Protection Supervisor proposed the establishment of a Digital Clearinghouse to bring together agencies 
responsible for competition, consumer and data protection and willing to share information and discuss 
how best to enforce rules in the interests of the individual. The ‘clearinghouse’ met for the first time on 
29 May 2017. 

EN 

9 

  EN 

 
                                                 
only has consequences in terms of the monetary payment for the services provided during the 
right of withdrawal period before the exercise of the right of withdrawal. 

The proposed changes to the rules on online marketplaces are proportionate in the sense that 
they do not impose on online marketplaces any obligation to monitor or verify the truthfulness 
of  the  information  provided  by  third-party  suppliers  about  their  trader  or  non-trader  status. 
The  changes  are  therefore  based  on  pure  self-declaration  and  the  task  of  the  marketplace  is 
only to ensure that third-party suppliers provide this information on the website and then pass 
it on to the consumer. As regards ranking transparency, the online marketplace has to inform 
about  the  main  parameters  determining  ranking  of  the  offers  without  prescribing  any 
particular default ranking criteria. 

The proposal also enhances the proportionality of the legislation by reducing regulatory costs 
for traders where this would not endanger the objective of the legislation as in the case of the 
two  identified  traders’  obligations  with  regards  to  the  right  of  withdrawal  and  the  proposed 
burden-reduction  measures  for 
information  requirements.  Such  changes  eliminating 
unnecessary burden are expected to be particularly beneficial for small enterprises.  

 

Choice of the instrument 

As  this  proposal  amends  four  existing  Directives,  the  most  appropriate  instrument  is  a 
directive. 

3. 

 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

This  proposal  builds  on  the  findings  of  the  Fitness  Check  of  EU  Consumer  and  Marketing 
Law and the CRD evaluation, both published in May 2017.  

The  Fitness  Check  concluded  that  most  of  the  substantive  provisions  of  the  relevant 
Directives are overall fit for purpose. Although consumer-protection provisions are also laid 
down in many EU sector-specific instruments, the Fitness Check concluded that the general 
Directives under analysis and EU sector-specific consumer protection legislation complement 
one  another.  The  Fitness  Check  also  concluded  that  stakeholders  largely  agree  that  the 
combination  of  general  and  sector-specific  rules  provides  a  clear  and  coherent  EU  legal 
framework.  

However, the Fitness Check concluded that the effectiveness of the rules is hindered by: (a) 
the  fact  that  traders  and  consumers  are  not  aware  of  them,  and  (b)  insufficient  enforcement 
and consumer-redress opportunities. As far as  this  proposal is  concerned, the Fitness Check 
recommended future action to improve compliance by strengthening enforcement and making 
consumer  redress  easier,  in  particular  by  increasing  the  deterrent  effect  of  penalties  for 
breaches  of  consumer  law  and  introducing  consumer  remedies  where  consumers  have  been 
victims  of  unfair  commercial  practices  infringing  Directive  2005/29/EC.  The  Fitness  Check 
also recommended modernising the regulatory landscape and reducing regulatory burdens by 
removing unjustified duplications of information requirements between Directive 2005/29/EC 
and Directive 2011/83/EU. 

The  CRD  evaluation  found  that  Directive  2011/83/EU  has  contributed  positively  to  the 
functioning of the business-to-consumer internal market and ensured a high common level of 
consumer  protection.  However,  it  identified  some  gaps  in  the  rules,  in  particular  due  to  the 
developments  in  the  digital  economy.  The  evaluation  highlighted  a  number  of  areas  where 
legislative amendments could be relevant, including the following:  

EN 

10 

  EN 

 
(a) 

(b) 

(c) 

(d) 

transparency of transactions on online marketplaces;  

alignment  of  the  rules  governing  digital  content  contracts  with  the  rules  for  ‘free’ 
digital services (such as cloud storage and webmail);  

simplification of some of the information requirements in Directive 2005/29/EC and 
Directive 2011/83/EU that overlap;  

reduction of the burden on traders, especially small and medium-sized businesses, in 
the  area  of  the  right  of  withdrawal  from  distance  and  off-premises  sales  regarding: 
(1) consumer’s right to return also goods that have been used beyond what is strictly 
necessary and (2) the obligation to reimburse the consumer even before receiving the 
goods back from the consumer;  

(e) 

modernisation of the means of communication between traders and consumers.  

The  evaluation  also  recommended  further  awareness-raising  activities  and  guidance 
documents as follow-up.  

 

Stakeholder consultations 

In preparing the proposal, the Commission consulted with stakeholders via:  

 

 

 

 

 

the feedback mechanism on the Inception Impact Assessment;  

the online public consultation;  

a targeted panel consultation with small and medium-sized businesses; 

targeted  consultations  with  Member  States  and  other  stakeholders  through 
surveys  and  meetings  with  Directorate-General  for  Justice  and  Consumers' 
networks of Member State authorities and consumer organisations;  

consultation  with  consumer  and  business  stakeholders  via  the  REFIT 
Stakeholder Expert Group. 

The  objective  of  the  consultations  was  to  collect  qualitative  and  quantitative  evidence  from 
relevant  stakeholder  groups  (consumers,  consumer  associations,  businesses,  business 
associations,  Member  States  authorities,  legal  practitioners)  and  the  general  public.  It  was 
difficult  to  reach  specific  types  of  businesses,  such  as  online  marketplaces  and  providers  of 
‘free’  digital  services.  The  consultations  were  publicised  via  regular  meetings,  Twitter, 
Facebook,  and  e-mails  to  the  Directorate-General  for  Justice  and  Consumers'  networks,  and 
via speeches delivered by the Commissioner and other high-level Commission officials.  

The  proposal  also  builds  on  the  consultation  activities  that  were  carried  out  as  part  of  the 
Fitness Check and CRD evaluation.29  

The  measures  included  in  the  proposal  enjoy  different  levels  of  support  from  stakeholders. 
The  public  consultation  showed  that  many  consumer  associations  and  public  authorities 
support  expressing  the  maximum  level  of  fines  as  a  percentage  of  the  trader's  turnover. 
However,  only  a  few  business  associations  agreed  with  this  idea.  By  contrast,  in  the  SME 
panel, no less than 80 % of the respondents considered that the most proportionate, effective 

29 

EN 

For  more  information  on  these  consultation  activities  carried  out  for  the  Fitness  check  and  the  CRD 
evaluation, see the Annexes to the Report on the Fitness Check and Annexes to the Commission staff 
  http://ec.europa.eu/newsroom/just/item-
working  document  on 
detail.cfm?item_id=59332  

the  CRD, 

available 

at: 

11 

  EN 

 
                                                 
and dissuasive way of setting the maximum level of fines is by expressing it as a percentage 
of the trader's turnover, possibly combined with an absolute amount, whichever is higher.  

In  the  public  consultation,  a  large  majority  of  responding  public  authorities,  consumer 
associations  and  consumers  said  that  an  EU-wide  right  to  remedies  under  Directive 
2005/29/EU  should  be  introduced  to  ensure  that  traders  comply  better  with  consumer 
protection rules. However, support for this idea was low among business associations (35 %) 
and individual companies (31 %). In the SME panel consultation, 87 % of respondents were 
in favour of introducing an EU-wide right to remedies under Directive 2005/29/EU.  

Many  stakeholders  supported  new  transparency  requirements  for  contracts  concluded  on 
online  marketplaces.  Consumer  associations,  public  authorities,  individuals  and  most 
companies  and  business  associations  agree  that  consumers  buying  on  online  marketplaces 
should receive the information about the identity and status of the supplier. They also agree 
that this would increase consumer trust. Also many small and medium-sized businesses are in 
favour  of  requirements  to  inform  consumers  about  the  identity  and  legal  status  of  the 
contractual partner. There was also support for transparency from business associations. Some 
major  online  marketplaces  reported  that  the  new  rules  would  reduce  costs,  while  others  did 
not know.  

Most stakeholders supported extending Directive 2011/83/EU to cover digital services where 
no  monetary  payment  is  made.  Traders  supported  introducing  information  requirements  to 
help better inform consumers, but they were divided on introducing a right of withdrawal for 
these digital services. Business associations did not support introducing a right of withdrawal 
for digital services where no monetary payment is made.  

Business  associations  supported  the  deletion  of  information  requirements  from  Directive 
2005/29/EC  that  overlap  with  pre-contractual  information  requirements  in  Directive 
2011/83/EU. Consumer associations were against removing information requirements in these 
cases.  Most  of  the  public  authorities  considered  that  providing  consumers  with  information 
about complaint handling was not important at the advertising stage.  

Stakeholders  largely  supported  replacing  the  current  requirement  for  traders  to  provide  an 
e-mail  address  with  a  technologically  neutral  reference  to  means  of  online  communication. 
Stakeholders  also  largely  supported  removing  the  reference  to  a  fax  number  in  Directive 
2011/83/EU.  

In  the  public  consultation,  35 %  of  online  companies  reported  that  they  encountered 
significant problems due to the above-mentioned specific obligations for traders related to the 
right  of  withdrawal.  Most  business  associations  confirmed 
face  a 
disproportionate/unnecessary burden resulting from these obligations. In the SME panel, close 
to  half  of  self-employed,  micro  or  small  companies  selling  to  consumers  online  reported 
disproportionate  burdens.  However,  most  consumer  associations,  public  authorities  and 
individuals did not support removing these traders’ obligations.  

traders 

that 

Impact assessment 

 
This  proposal  is  based  on  an  Impact  Assessment  (IA)30.  The  Regulatory  Scrutiny  Board 
(RSB)  first  issued  a  negative  opinion  with  comprehensive  comments  on  12 January 2018. 
After  a  significant  revision  of  the  initial  draft,  the  RSB  provided  a  positive  opinion  with 

30 

SWD(2018) 96. 

EN 

12 

  EN 

 
                                                 
further comments on 9 February 2018.31 Annex I to the IA explains how the RSB comments 
were addressed.  

The  Impact  Assessment  deals  separately  with  options,  on  the  one  hand,  to  improve 
compliance with the consumer protection law and, on the other hand, related to modernisation 
and burden reduction. 

To improve compliance, three options were considered besides the baseline scenario:  

(1) 

(2) 

(3) 

an  option  of  only  increasing  deterrence  and  proportionality  of  public  enforcement 
through stronger rules on penalties and a more effective injunctions procedure;  

an  option  of  adding  to  the  measures  in  (1)  the  consumer’s  right  to  individual 
remedies;  

an option of adding to the measures in (1) and (2) measures of collective consumer 
redress. 

The preferred option was option 3 which combined all the measures. This proposal addresses 
parts of the preferred option regarding stronger rules on penalties and rights for consumers to 
individual  remedies  for  violations  of  Directive  2005/29/EC.  Elements  related  to  injunctions 
and collective redress are addressed by the parallel proposal on representative actions for the 
protection of the collective interests of consumers, and repealing Directive 2009/22/EC.   

On penalties, the proposal will make  the application  of penalties more consistent across  the 
EU. It will do this through a list of common, non-exhaustive criteria for assessing the gravity 
of infringements (except for minor ones). Enforcement authorities would be required to take 
these criteria into account when deciding whether to impose penalties, and what the level of 
penalty should be. If the penalty to be imposed is a fine, the authorities would be required to 
take  into  account,  when  setting  the  amount  of  the  fine,  the  infringing  trader’s  turnover,  net 
profits and any fines imposed for the same or similar infringements in other Member States. 
In  cases  of  ‘widespread  infringements’  and  ‘widespread  infringements  with  a  Union 
dimension’,  as  defined  in  the  revised  CPC  Regulation,  fines  should  be  introduced  as  a 
mandatory  element  of  penalties,  and  Member  States  should  set  the  maximum  fine  for  such 
infringements at a level that is at least 4 % of the trader's annual turnover.   

On  individual  remedies,  the  proposal  requires  Member  States  to  ensure  that  consumers 
harmed  by  unfair  commercial  practices  have  access  to  at  least  the  contractual  remedy  of 
contract  termination  and  the  non-contractual  remedy  of  compensation  for  damages.  In 
particular, the ‘Dieselgate’ controversy (where car manufacturers installed technology in cars 
to  cheat  emissions  tests)  has  shown  that  non-contractual  remedies,  such  as  the  extra-
contractual  right  to  compensation  for  damages,  can  sometimes  be  more  important  for 
consumers than contractual ones. In the Dieselgate case, many consumers have not been able 
to claim remedies even in Member States that already provide remedies for victims of unfair 
commercial  practices.  This  is  because  the  available  remedies  are  only  contractual.  The 
remedies can therefore only be applied against the consumers' contractual counterparts, which 
in this case are usually the car sellers and not the car manufacturers.  

On  costs  of  these  measures,  there  could  be  some  initial  familiarisation  costs  for  traders. 
However,  in  the  SME  Panel  consultation  most  respondents  indicated  that  strengthening 
penalties would have no impact on their costs. For individual remedies the median estimated 
one-off  costs,  such  as  costs  for  legal  advice,  reported  in  the  SME  Panel  consultation  were 
EUR  638.  The  median  estimated  annual  running  costs  were  EUR  655.  In  the  public 

31 

SEC(2018) 185. 

EN 

13 

  EN 

 
                                                 
consultation,  a  majority  of  the  public  authorities  indicated  that  costs  of  administrative  and 
judicial enforcement would increase if rules on penalties are strengthened. There would also 
be some initial familiarisation costs for national authorities and courts of introducing rights to 
individual  remedies.  No  public  authority  provided  estimates  of  increased  or  decreased 
enforcement  costs.  Costs  for  public  enforcement  authorities  and  courts  include  a  possible 
increase in the number of enforcement and court cases. However, these costs are likely to be 
off-set  by  the  expected  overall  reduction  in  violations  of  EU  consumer  law  thanks  to  the 
increased deterrent effect of stronger penalties and remedies.  

The proposal would also bring savings for traders trading cross-border thanks to the increased 
harmonisation  of  rules.  In  particular,  there  would  be  increased  clarity  on  the  possible 
consequences for traders in the event of non-compliance. This would lead to lower and more 
accurate risk-assessment costs.  

For modernisation and burden reduction, the IA assessed the options for (a) transparency of 
online  marketplaces,  (b)  consumer  protection  in  respect  of  digital  services  not  provided 
against  monetary  payment  and  (c)  burden  reduction  measures  that  are  discussed  in  the 
following section on regulatory fitness and simplification. 

On  the  transparency  of  online  marketplaces,  the  IA  assessed  the  options  of  promoting 
self-regulation, co-regulation and legislative amendments to Directive 2011/83/EU imposing 
additional  information  requirements  on  online  marketplaces.  Very  few  respondents  to  the 
targeted  and  public  consultations  provided  quantitative  cost  estimates.  Some  major  online 
marketplaces reported that new fully harmonised rules on transparency would bring some cost 
reductions, while others did not know if these rules would bring cost reductions. Out of the 
four  online  marketplaces  responding  to  a  question  on  costs,  two  indicated  that  the  costs  for 
complying  with  new  information  requirements  (one-off  and  running  costs)  would  be 
reasonable, one did not find them reasonable and one did not know. 

The  extension  of  the  CRD  to  ‘free’  digital  services  represents  a legislative clarification  that 
would  entail  moderate  costs  on  companies  due  to  adjustments  of  their  website/online 
interface.  Small  and  medium-sized businesses estimated  that the median of the annual costs 
that would come from extending Directive 2011/83/EU to cover digital services not provided 
against  payment  was  EUR 33  for  pre-contractual  information  requirements  and  EUR 50  for 
the right of withdrawal. 

The amendment of Directive 2005/29/EC stating that Member States may adopt provisions to 
protect  the  legitimate  interests  of  consumers  with  regard  to  particularly  aggressive  or 
misleading marketing or selling practices in the context of unsolicited visits by a trader to a 
consumer's home or with regard to commercial excursions organised by a trader with the aim 
or effect of promoting or selling products to consumers, where such restrictions are justified 
on grounds of public policy or respect for private life, is necessary to clarify the relationship 
between the Directive and national rules on such marketing activities.  

Some  Member  States  have  introduced  bans  or  restrictions  on  specific  types  of  off-premises 
selling, such as  unsolicited doorstep selling also for reasons of the protection  of private  life 
and  public  policy.  Although  they  go  against  the  fully  harmonised  nature  of  Directive 
2005/29/EC,  such  restrictions  have  no  –  or  very limited  –  cross-border  implications  (due  to 
the very nature of off-premises selling). Such restrictions would therefore have no significant 
impact on the Single Market. The proposed change would recognise the status quo that exists 
in some Member States that have adopted certain restrictions on doorstep selling and/or sales 
excursions.  Any  further  impact  would  depend  on  other  Member  States  making  use  of  this 
possibility.  Therefore,  clarifying  the  possibility  for  Member  States  to  introduce  such 
restrictions based on public policy or protection of privacy of consumers was deemed not to 

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have  an  immediate  impact  on  the  Single  Market,  and  is  in  line  with  the  principle  of 
subsidiarity. 

The amendment of Directive 2005/29/EC regarding ‘dual quality’ of products is necessary in 
order  to  provide  greater  legal  clarity  for  the  Member  State  authorities  responsible  for 
enforcing  the  Directive.  The  Commission  had  addressed  this  matter  in  the  Guidance  of  25 
May 2016 on the application of Directive 2005/29/EC32 and more recently in the Commission 
Notice of 26.9.2017 'on the application of EU food and consumer protection law to issues of 
Dual Quality of products – The specific case of food'33. However, the enforcement experience 
shows  that  national  authorities  would  benefit  from  relying  on  an  explicit  set  of  provisions. 
These are necessary to enable more effective tackling of commercial practices that involve the 
marketing  of  a  product  as  being  identical  to  the  same  product  marketed  in  several  other 
those  products  have  significantly  different  composition  or 
Member  States,  where 
characteristics causing or likely to cause the average consumer to take a transactional decision 
that he would not have taken otherwise. 

 

Regulatory fitness and simplification 

As this proposal is made as part of the REFIT programme, ascertaining the regulatory burdens 
was  an  important  part  of  the  underlying  evaluations.  These  showed  that  the  general  EU 
consumer  legislation  is  not  particularly  burdensome,  both  in  absolute  terms  and  when 
compared  to  other  areas  of  EU  regulation34.  Therefore,  in  light  of  the  great  benefits  of  EU 
consumer  legislation  in  protecting  consumers  and  facilitating  the  Single  Market,  these 
evaluations identified only a limited scope in terms of burden reduction. 

to  all 

legislation 

that  applies 

this  proposal  amends 

including 
Because 
micro-enterprises,  there  are  no  substantial  reasons  to  exempt  micro-enterprises  from  the 
application of this proposal. It is likely that micro-enterprises will benefit in particular from 
the  proposed  burden  reduction  measures  related  to  the  right  of  withdrawal.  This  is  because 
these  businesses  may  currently  have  less  flexibility  in  absorbing  losses  due  to  the  current 
obligations. Micro-enterprises are likely to be less affected by the proposed strengthening of 
rules on penalties for widespread infringements and widespread infringements with a Union 
dimension,  since  such  infringements  are  typically  done  by  larger  companies,  which  then 
become the object of coordinated CPC enforcement actions.  

traders, 

The first amendment concerning the right  of withdrawal ends a trader's obligation to accept 
the return of goods even when consumers have used such goods more than permitted. Small 
and  medium-sized  businesses  reported  annual  losses  on  average  of  EUR 2 223  (median 
EUR 100)  caused  by  the  current  obligation  to  accept  such  'unduly  tested  goods'.  The  views 
from  business  associations  and  companies  also  suggest  that  traders,  and  small  and 
medium-sized  businesses  in  particular,  will  benefit  from  a  reduction  of  this  burden.  As 
regards trader's obligation to reimburse consumers before having had the possibility to inspect 
returned goods, the average estimated annual losses due to current rules reported in the SME 
Panel  consultation  were  EUR 1 212  (median  0).  Views  from  business  associations  and 
companies also suggest that traders, and small and medium-sized businesses in particular, will 
benefit from a reduction of this burden.  

Very limited quantitative data were available on the removal of trader's obligation to provide 
information about complaint handling at the advertising stage. However, the views expressed 

32 
33 
34 

SWD(2016) 163 final. 
C(2017)6532. 
For further information, see Chapter 6.2.4. of the Fitness Check Report. 

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by business associations suggest some to significant savings for companies. On the removal 
of  the  obligation  on  traders  to  display  their  fax  number  and  enable  more  modern  means  of 
communication  (such  as  web-form)  as  alternative  to  an  e-mail  address,  the  fact  that  many 
traders  already  offer  these  more  modern  means  of  communication  to  consumers  (in  parallel 
with  an  e-mail  address)  suggests  that  they  are  more  efficient  than  e-mail.  Removing  the 
obligation to display fax number may not affect costs, as currently it is mandatory information 
only for those few traders that may still use fax in their communication with consumers. 

All  the  amendments  in  the  proposal  are  drafted  in  a  technology-neutral  way  to  ensure  that 
they are not rapidly overtaken by technological developments. Thus, the existing definition of 
‘online marketplaces’ in other EU legislation is being updated to remove specific references 
to  a  concrete  technology,  such  as  ‘websites’  and  ensure  that  it  is  future-proof.  Extending 
Directive  2011/83/EU  to  digital  services  not  provided  for  monetary  payment  would  address 
the  current  situation  of  digital  transactions  for  consumers  through  content-neutral  and 
future-proof  rules.  This  would  complement  EU  data  protection  rules.  Changing  Directive 
2011/83/EU rules  on means of communication will be technologically neutral  and therefore 
future-proof. This is because reference will be made to other means of online communication 
that enables the consumer to retain the content of the communication rather than to a specific 
technology. 

 

Fundamental rights 

The proposal is in accordance with Article 38 of the Charter of Fundamental Rights according 
to  which  the  EU  must  ensure  a  high  level  of  consumer  protection.  The  measures  to:  (a) 
improve  compliance  with  consumer  protection  legislation  and  (b)  modernise  the  consumer 
protection  rules  for  online  marketplaces  and  digital  services  increase  the  level  of  consumer 
protection. The improved individual redress opportunities against unfair commercial practices 
would also help ensure the right to an effective remedy enshrined in Article 47 of the Charter. 
Finally,  the  proposal  respects  the  right  to  the  protection  of  personal  data  of  individuals 
enshrined in Article 8 of the Charter and the right of Member States to restrict specific forms 
and  aspects  of  off-premises  sales  to  ensure  the  respect  for  consumers’  private  life  is  in 
accordance with Article 7 of the Charter.  

The  burden  reduction  measures  for  (a)  the  right  of  withdrawal,  (b)  simplification  of 
information  requirements  and  (c)  modernisation  of  the  means  of  communication  will 
contribute to the implementation of Article 16 of the Charter, which guarantees the freedom to 
conduct a business in accordance with EU law and national laws and practices. At the same 
time,  simplifying  information  requirements  and  modernising  the  means  of  communication 
will not result in any substantial reduction of consumer protection. And the measures on the 
right of withdrawal represent more balanced rights and obligations of traders and consumers. 
This  is  because  they  will  remove  unjustified  burdens  while  only  affecting  a  minority  of 
consumers. 

4. 

BUDGETARY IMPLICATIONS 

There are no budgetary consequences for the EU budget. 

5. 

 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  Commission  will  evaluate  the  effectiveness,  efficiency,  relevance,  coherence  and  EU 
added  value  of  this  intervention  according  to  the  indicators  identified  in  the  Impact 

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Assessment.  These  indicators  can  serve  as  the  basis  for  the  evaluation  that  should  be 
presented no sooner than 5 years after the entry into application, to ensure that enough data is 
available after full implementation in all Member States. 

Comprehensive statistics on online trade in the EU and more precisely retail online trade are 
available  in  the  Eurostat  database.  These  could  be  used  as  primary  sources  of  data  for  the 
evaluation. This will be completed by representative surveys with consumers and retailers in 
the  EU  carried  out  regularly  for  the  Consumer  Scoreboards  that  are  published  bi-annually. 
These  surveys  investigate  experiences  and  perceptions,  which  are  both  important  factors 
influencing the behaviour of consumers and businesses in the Single Market. The monitoring 
will  also  include  a  public  consultation  and  targeted  surveys  with  specific  groups  of 
stakeholders  (consumers,  qualified  entities,  online  marketplaces,  traders  providing  digital 
services without monetary payment). Concerning specifically the business perspective, it will 
be  covered  through  the  retailer  survey  carried  out  regularly  for  the  Consumer  Conditions 
Scoreboard  as  well  as  targeted  surveys  to  be  carried  out  among  online  marketplaces  and 
providers of 'free' digital services. 

This  data  collection  will  also  feed  into  Commission's  reporting  on  the  transposition  and 
implementation.  In  addition, the Commission  will remain in  close  contact with the Member 
States and with all relevant stakeholders to monitor the effects of the possible legislative act. 
To limit the additional administrative burden on Member States and the private sector due to 
the collection of information used for monitoring, the proposed monitoring indicators rely on 
existing data sources whenever possible. 

Data  collection  will  aim  to  identify  more  precisely  the  extent  to  which  changes  in  the 
indicators could be ascribed to the proposal. For example, while giving consumers the same 
rights throughout the EU should be expected to make them more confident in asserting their 
rights in  cross-border transactions and thus  help to  reduce  consumer detriment, the share of 
consumers  who  receive  effective  remedies  will  also  be  influenced  by  other  factors.  Such 
relevant factors are described above under the problem descriptions. The surveys carried out 
for  the  Consumer  Scoreboards  have  time  series  on  most  indicators,  allowing  in  principle 
(through statistical analysis) to discern the impact of a particular policy initiative from broader 
trends. 

 

Explanatory documents (for directives) 

As  the  proposal  introduces  specific  amendments  to  four  existing  directives,  Member  States 
should  either  provide  the  Commission  with  the  text  of  the  specific  amendments  to  national 
provisions  or,  in  the  absence  of  such  amendments,  explain  which  specific  national  law 
provision already implements the amendments provided in the proposal. 

 

Detailed explanation of the specific provisions of the proposal 

Article 1 – Amendments to Directive 2005/29/EC 

Article 1 of the proposal amends Directive 2005/29/EC on two main points: it introduces the 
right  to  individual  remedies  for  consumers  and  strengthens  the  rules  on  penalties.  The 
proposal also clarifies the application of the existing rules of the Directive regarding hidden 
advertising  and  misleading  advertising  of  ‘dual  quality’  products.  Finally,  the  proposal 
addresses the issue of national rules concerning specific forms of off-premises sales. 

As  regards  individual  consumer  remedies,  a  new  Article 11a  is  inserted  in  Directive 
2005/29/EC to require Member States to ensure that certain specific types of contractual and 
non-contractual  remedies  for  breaches  to  Directive  2005/29/EC  are  available  under  national 
law.  The  introduction  of  rights  to  individual  remedies  in  that  Directive  would  empower 

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victims of unfair commercial practices to take action against traders to solve problems created 
by these traders. 

As  regards  penalties,  a  list  of  common,  non-exhaustive  criteria  for  assessing  the  gravity  of 
infringements  (except  for  minor  ones)  is  introduced  in  Article 13  of  the  Directive. 
Enforcement authorities would be required to take these criteria into account when deciding 
whether  to  impose  penalties  and  on  their  level.  If  the  penalty  to  be  imposed  is  a  fine,  the 
authority  would  be  required  to  take  into  account,  when  setting  the  amount  of  the  fine,  the 
infringing trader’s turnover, net profit as well as any fines imposed for the same infringement 
in  other  Member  States.  In  addition,  for  'widespread  infringements'  and  'widespread 
infringements  with  a  Union  dimension',  as  defined  in  the  revised  CPC  Regulation  (EU) 
2017/2395,  Member  States  will  be  required  to  provide  in  their  national  law  for  fines  the 
maximum  amount  if  which  should  be  at  least  4%  of  the  infringing  trader’s  turnover  in  the 
Member  State  or  Member  States  concerned.  This  means  that  where  national  competent 
authorities co-operating under a CPC coordinated action designate one competent authority to 
impose  a  single  fine,  the  maximum  fine  available  in  that  case  should  be  at  least  4%  of  the 
trader’s combined turnover in all the Member States concerned.   

As  regard  hidden  advertising,  consumers  using  digital  applications  such  as  online 
marketplaces,  comparison  tools,  app  stores  or  search  engines  expect  'natural'  or  'organic' 
search  results  based  on  relevance  to  their  search  queries,  not  on  payment  by  third  parties. 
However, as also the 2016 Guidance paper on Directive 2005/29/EC points out, search results 
often contain 'paid placements', where third parties pay for higher ranking, or 'paid inclusion', 
where third parties pay to be included in the list of search results. Paid placements and paid 
inclusions are often not indicated at all, or are only indicated in an ambiguous way not clearly 
discernible  for  consumers.  The  relevant  provisions  of  Directive  2005/29/EC  on  the 
prohibition of hidden advertising should therefore be clarified to make it clear that they apply 
not only to editorial content in media but also to search results in response to the consumer’s 
online search query.  

As regards specific forms of off-premises sales, an amendment to Article 3 of the Directive 
authorises Member States to adopt provisions to protect the legitimate interests of consumers 
with  regard  to  aggressive  or  misleading  marketing  or  selling  practices  in  the  context  of 
unsolicited visits by a trader to a consumer's home (in other words, visits which are not made 
at the request  of the consumer, for example, through fixing an appointment  with  the trader) 
and  with  regard  to  commercial  excursions  organised  by  a  trader  with  the  aim  or  effect  of 
promoting or selling products to consumers, where such restrictions are justified on grounds 
of public policy or the protection of the respect for private life. To ensure full transparency of 
such measures, Member States will have to notify them to the Commission, which will make 
such notifications publicly available. 

As regards ‘dual quality’ products, an amendment to Article 6(2) of the Directive expressly 
stipulates that a commercial practice involving the marketing of a product as being identical 
to  the  same  product  marketed  in  several  other  Member  States,  where  those  products  have 
significantly  different  composition  or  characteristics  causing  or  likely  to  cause  the  average 
consumer  to  take  a  transactional  decision  that  he  would  not  have  taken  otherwise,  is  a 
misleading commercial practice which competent authorities should assess and address on a 
case by case basis according to the provisions of the Directive. 

Article 2 – Amendments to the Consumer Rights Directive 2011/83/EU 

Article 2 of this proposal amends Directive 2011/83/EU on a number of points. 

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Amendments  to  Article 2  of  Directive  2011/83/EU  provide  additional  definitions  of  digital 
content  and  digital  service  and  the  respective  contracts  for  the  provision  of  these  products, 
which  are  aligned  with  the  definitions  in  the  [Digital  Content  Directive].  These  definitions 
bring within the scope of application of Directive 2011/83/EU also contracts for the provision 
of digital services under which the consumer does not pay with money but provides personal 
data. In line with the [Digital Content proposal for Directive], the definitions of ‘contract for 
the  supply  of  digital  content’  and  ‘digital  service  contract’  clarify  that,  in  the  absence  of 
monetary payment, the rights and obligations of Directive 2011/83/EU will not apply where 
the  personal  data  provided  by  the  consumer  is  exclusively  processed  by  the  trader  for 
supplying  the  digital  content  or  service  or  for  the  trader to  comply  with  legal  requirements, 
and the trader does not process this data for any other purpose. Amendments to Article 2 also 
introduce  a  definition  of  'online  marketplace'  which  is  subject  to  specific  additional  pre-
contractual information requirements under a new Article 6a. 

Article 5 of Directive 2011/83/EU on pre-contractual information requirements for contracts 
other than off-premises and distance contracts is amended for consistency reasons in order to 
cover  the  newly  defined  digital  services  alongside  the  already  existing  notion  of  digital 
content  as  regards  the  pre-contractual  information  requirements  about  interoperability  and 
functionality. 

Article 6  of  Directive  2011/83/EU  on  pre-contractual  information  requirements  for  off-
premises  and  distance  contracts  is  amended  for  consistency  reasons  in  order  to  cover  the 
newly  defined  digital  services  alongside  the  already  existing  notion  of  digital  content  as 
regards the pre-contractual information requirements about interoperability and functionality. 
In  addition,  Article 6  is  amended  by  removing  fax  from  the  list  of  possible  means  of 
communication  and  enabling  traders  to  use  other  online  means  of  communication  as 
alternative to the traditional e-mail. 

A  new  Article 6a  is  inserted  in  Directive  2011/83/EU  providing  specific  additional  pre-
contractual information requirements for contracts concluded on online marketplaces, namely: 
(1) description of the main parameters determining ranking of the different offers, (2) whether 
the third party offering the product is a trader or not, (3) whether consumer rights stemming 
from EU consumer law apply to the contract and (4) if the contract is concluded with a trader, 
which trader is responsible for ensuring consumer rights stemming from EU consumer law in 
relation to the contract. 

Article 7  of  Directive  2011/83/EU  setting  specific  formal  requirements  for  off-premises 
contracts  is  amended  to  specify  that  the  obligation  in  paragraph  3  on  traders  to  obtain 
consumer’s  express  consent  for  immediate  performance  of  services  only  applies  to  services 
provided against payment. This amendment is necessary in view of the extension of the scope 
of  the  Directive  to  cover  also  digital  services  not  provided  against  monetary  payment  since 
the  obligation  of  express  consent  is  only  relevant  in  the  calculation  of  the  monetary 
compensation that the consumer must provide to the trader for the use of the services during 
the right of withdrawal period if the consumer decides to exercise the right of withdrawal.  

Article 8 of Directive 2011/83/EU setting specific formal requirements for distance contracts 
is amended on several points. First, in paragraph 4 a provision is made to exclude the model 
withdrawal  form  from  the  information  requirements  provided  on  a  means  of  distance 
communication used for the conclusion of the contract that allows limited space or time for 
the  provision  of  the  information,  including  telephone  calls.  This  is  necessary  because  the 
written  model  withdrawal  form  cannot  be  provided  to  the  consumer  by  means  of  the 
telephone call and it can be impossible to provide in a user friendly way over other means of 
communication  covered  by  Article 8(4).  In  these  cases,  it  suffices  to  make  the  model 

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withdrawal form available to the consumer through other means, such as trader’s website and 
to include it in the contract confirmation on a durable medium. 

Paragraph 8 is amended in a similar way as Article 7(3) described above. 

Article 13  of  Directive  2011/83/EU  dealing  with  the  trader’s  obligations  in  the  event  of 
withdrawal  is  amended  to  delete  the  trader’s  obligation  to  reimburse  the  consumer  even 
before  the  trader  has  received  back  the  returned  goods.  Consequently,  the  trader  will  be 
always entitled to withhold the reimbursement until the returned goods have arrived and the 
trader has had a chance to inspect them. References are added to the General Data Protection 
Regulation and the [Digital Content Directive] as regards the trader’s obligations in respect of 
the use of the consumer’s data after the termination of the contract. 

Article 14 of Directive 2011/83/EU dealing with the obligations of the consumer in the event 
of withdrawal is amended by removing the right of consumers to return the goods even where 
those have been used more than necessary to test them subject to the obligation to pay for the 
diminished value. A provision similar to the respective Digital Content Directive rule is added 
regarding  the  consumer’s  obligations  to  refrain  from  using  the  digital  content  or  digital 
services after the termination of the contract. Finally, paragraph 4(b), setting out contractual 
sanction in the event of trader’s non-respect of the information obligations regarding digital 
content, is amended for consistency reasons by removing from the list of alternative reasons 
for  this  sanction  the  failure  to  provide  confirmation  that  consumer  has  expressly  consented 
and acknowledged the loss  of the right of withdrawal in  accordance with the exception laid 
down  in  Article 16(m).  Since  Article 14  deals  with  the  consequences  of  the  right  of 
withdrawal, this condition is irrelevant since the express consent and acknowledgement result 
in effective loss of the right of withdrawal under Article 16(m). 

Article 16 dealing with exceptions from the right of withdrawal is amended on several points. 
First,  there  is  amendment  in  point  (a)  to  ensure  consistency  with  Article 7(3)  and 8(7)  as 
regards  the  trader’s  obligations  when  consumer  wants  immediate  performance  of  services. 
Second, point (m) providing exemption from the right of withdrawal regarding digital content 
supplied  on  a  tangible  medium  if  the  consumer  has  given  prior  consent  to  begin  the 
performance  before  the  expiry  of  the  right  of  withdrawal  period  and  acknowledged  that  he 
thereby loses the right of withdrawal is amended to apply these two conditions only to content 
provided against payment. This is done in order to ensure consistency with Article 14(4)(b), 
which  provides  for  a  contractual  sanction  when  these  requirement  are  not  fulfilled  by  the 
trader,  namely,  the  consumer  does  not  have  to  pay  for  the  digital  content  consumed.  The 
requirement  to  obtain  consumer’s  express  consent  and  acknowledgment  is  accordingly  only 
relevant for digital content provided against the payment of a price. Finally, a new point (n) is 
added  to  exempt  from  the  right  of  withdrawal  goods  that  the  consumer  has  used  more  than 
necessary to test them. 

Article 24 of Directive 2011/83/EU on penalties is amended in similar manner as Article 13 
on penalties in Directive 2005/29/EC, described above. 

Article 3 – Amendments to the Unfair Contract Terms Directive 93/13/EEC 

A new Article on penalties is inserted in Directive 93/13/EEC in similar manner as Article 13 
on penalties in Directive 2005/29/EC, described above. 

Article 4 – Amendments to the Price Indication Directive 98/6/EC 

Article 8  on  penalties  in  Directive  98/6/EC  is  amended  in  similar  manner  as  Article 13  on 
penalties in Directive 2005/29/EC, described above. 

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2018/0090 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Directive 93/13/EEC of 5 April 1993, Directive 98/6/EC of the 
European Parliament and of the Council, Directive 2005/29/EC of the European 
Parliament and of the Council and Directive 2011/83/EU of the European Parliament 
and of the Council as regards better enforcement and modernisation of EU consumer 
protection rules 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee35  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the 
European Union (TFEU) provide that the Union is to contribute to the attainment of a 
high  level  of  consumer  protection  through  measures  adopted  pursuant  to  Article 114 
TFEU.  Article 38  of  the  Charter  of  Fundamental  Rights  of  the  European  Union 
provides that Union policies are to ensure a high level of consumer protection. 

Consumer  protection  legislation  should  be  applied  effectively  throughout  the  Union. 
Yet,  the  comprehensive  Fitness  Check  of  consumer  and  marketing  law  directives 
carried out by the Commission in 2016 and 2017 in the framework of the Regulatory 
Fitness and Performance (REFIT) programme concluded that the effectiveness of the 
Union consumer legislation is compromised by lack of awareness both among traders 
and  consumers  and  by  insufficient  enforcement  and  limited  consumer  redress 
possibilities. 

The  Union  has  already  taken  a  number  of  measures  to  improve  awareness  among 
consumers,  traders  and  legal  practitioners  about  consumer  rights  and  to  improve 
enforcement of consumer rights and consumer redress. However, there are remaining 
gaps,  most  notably  the  absence  in  national  laws  of  truly  effective  and  proportionate 
penalties  to  deter  and  sanction  infringements,  insufficient  individual  remedies  for 
transposing  Directive 
consumers  harmed  by  breaches  of  national 

legislation 

35 

OJ C , , p. . 

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2005/29/EC36  and  shortcomings  of  the  injunctions  procedure  under  Directive 
2009/22/EC37. Revision of the injunctions procedure should be addressed by a separate 
instrument amending and replacing Directive 2009/22/EC. 
Directives  98/6/EC38,  2005/29/EC  and  2011/83/EU39  include  requirements  for 
Member  States  to  provide  for  effective,  proportionate  and  dissuasive  penalties  to 
address infringements of national provisions transposing these directives. Furthermore, 
Article 21 of Regulation (EU) 2017/239440 on consumer protection cooperation (CPC) 
requires  Member  States  to  take  enforcement  measures,  including  imposition  of 
penalties, in an effective, efficient and coordinated manner to bring about the cessation 
or prohibition of widespread infringements or widespread infringements with a Union 
dimension. 

infringing 

Current national rules on penalties differ significantly across the Union. In particular 
not all Member States ensure that effective, proportionate and dissuasive fines can be 
imposed  on 
infringements  or  widespread 
infringements  with  a  Union  dimension.  For  reasons  of  consistency  between  the 
different  Directives  on  consumer  protection,  penalties  should  be  addressed  in  a 
horizontal  manner  by  revising  the  existing  rules  on  penalties  of  Directives  98/6/EC, 
2005/29/EC  and  2011/83/EU  and  by  introducing  new  rules  on  penalties  in  Directive 
93/13/EEC41. 

traders  for  widespread 

To  facilitate  more  consistent  application  of  penalties,  in  particular  in  intra-Union 
infringements, widespread infringements and widespread infringements with a Union 
dimension referred to in Regulation (EU) 2017/2394, common non-exhaustive criteria 
should  be  introduced  for  the  application  of  fines.  These  criteria  should  include  the 
cross-border nature of the infringement, namely whether the infringement has harmed 
consumers  also  in  other  Member  States.  Any  redress  provided  by  the  trader  to 
consumers  for  the  harm  caused  should  also  be  taken  into  account.  Repeated 
infringements  by  the  same  perpetrator  shows  a  propensity  to  commit  such 
infringements  and  is  therefore  a  significant  indication  of  the  gravity  of  the  conduct 
and, accordingly, of the need to increase the level of the penalty to achieve effective 
deterrence.  The  criterion  of  financial  benefits  gained,  or  losses  avoided,  due  to  the 
infringement  is  especially  relevant  where  the  national  law  provides  for  fines  as 
penalties and sets the maximum fine as percentage of the trader’s turnover and where 

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair 
business-to-consumer  commercial  practices  in  the  internal  market  and  amending  Council  Directive 
84/450/EEC,  Directives  97/7/EC,  98/27/EC  and  2002/65/EC  of  the  European  Parliament  and  of  the 
Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ L 149, 
11.6.2005, p. 22). 
Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions 
for the protection of consumers' interests (OJ L 110, 1.5.2009, p. 30). 
Directive  98/6/EC  of  the  European  Parliament  and  of  the  Council  of  16  February  1998  on  consumer 
protection in the indication of the prices of products offered to consumers (OJ L 80, 18.3.1998, p. 27). 
Directive 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). 
Regulation (EU)  2017/2394 of  the  European  Parliament  and of  the  Council of 12 December 2017 on 
cooperation between national authorities responsible for the enforcement of consumer protection laws 
and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1). 
Council  Directive  93/13/EEC  of  5  April  1993  on  unfair  terms  in  consumer  contracts  (OJ  L  95, 
21.4.1993, p. 29). 

(4) 

(5) 

(6) 

36 

37 

38 

39 

40 

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(7) 

(8) 

(9) 

the  infringement  concerns  only  one  or  some  of  the  markets  in  which  the  trader  is 
operating.  

Furthermore,  any  fines  imposed  as  penalties  should  take  into  account  the  annual 
turnover and profits of the infringing trader and any fines that have been imposed on 
the  trader  in  other  Member  States  for  the  same  infringement  in,  particular,  in  the 
context  of 
law  and  widespread 
infringements  with  a  Union  dimension  that  are  subject  to  coordinated  investigation 
and enforcement in accordance with Regulation (EU) 2017/2394.  

infringements  of  consumer 

the  widespread 

These  common  non-exhaustive  criteria  for  the  application  of  penalties  may  not  be 
relevant in deciding on penalties regarding every infringement, in particular regarding 
non-serious  infringements.  Member  States  should  also  take  account  of  other  general 
principles of law applicable to the imposition of penalties, such as the principle of non 
bis in idem. 

To  ensure  that  Member  State  authorities  can  impose  effective,  proportionate  and 
dissuasive  penalties  in  relation  to  widespread  infringements  of  consumer  law  and  to 
widespread  infringements  with  a  Union  dimension  that  are  subject  to  coordinated 
investigation  and  enforcement  in  accordance  with  Regulation  (EU)  2017/2394,  fines 
should be introduced  as  a  mandatory element of  penalties for such  infringements. In 
order to ensure deterrence of the fines, Member States should set in their national law 
the maximum fine for such infringements at a level that is at least 4% of the trader's 
annual turnover in the Member State concerned. 

(10)  Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a 
single national competent authority within the meaning of that Regulation imposes a 
fine  on  the  trader  responsible  for  the  widespread  infringement  or  the  widespread 
infringement with a Union dimension, it should be able to impose a fine of at least 4 % 
of  the  trader’s  annual  turnover  in  all  Member  States  concerned  by  the  coordinated 
enforcement action. 

(11)  Member  States  should  not  be  prevented  from  maintaining  or  introducing  in  their 
national law higher maximum turnover-based fines for widespread infringements and 
widespread  infringements  with  a  Union  dimension  of  consumer  law,  as  defined  in 
Regulation EU 2017/2394. The requirement to set the fine at a level of not less than 
4 %  of  the  trader's  turnover  should  not  apply  to  any  additional  rules  of  the  Member 
States on periodic penalty payments, such as daily fines, for non-compliance with any 
decision, order, interim measure, trader's commitment or other measure with the aim 
of stopping the infringement. 

(12)  When  deciding  for  which  purpose  the  revenues  from  fines  are  used,  Member  States 
should  take  into  account  the  ultimate  objective  of  consumer  legislation  and  its 
enforcement  which  is  the  protection  of  the  general  interest  of  consumers.  Member 
States should therefore consider allocating at least part of the revenues from fines  to 
enhance  consumer  protection  within  their  jurisdictions,  such  as  supporting  consumer 
movement or activities aimed at empowering consumers. 

(13)  Access to individual remedies for consumers  harmed by unfair commercial practices 
should be enhanced in the context of Directive 2005/29/EC to put the consumer into 
the condition he would have been without the unfair commercial practice. While that 
Directive  was  originally  designed  mainly  to  regulate  the  market  conduct  of  traders 
based  on  public  enforcement,  experience  from  more  than  ten  years  of  application 

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demonstrate  the  shortcomings  of  the  lack  of  a  clear  framework  setting  out  rights  to 
individual remedies. 

(14)  National  rules  on  individual  remedies  for  consumers  harmed  by  unfair  commercial 
practices are diverging. The current situation, where to a large extent  it is  left to  the 
Member States to determine if and how remedies should be available, keeps Directive 
2005/29/EC from being fully effective. Therefore, that Directive still has potential to 
fully  reach  its  dual  purpose,  which  is  to  contribute  to  the  proper  functioning  of  the 
Internal Market and achieve a high level of consumer protection. Despite the existing 
possibilities  for  remedies  under  national  law,  the  Fitness  Check  did  not  identify 
significant  examples  of  case  law  where  victims  of  unfair  commercial  practices  had 
claimed remedies. This contrasts with the fact that unfair commercial practices are the 
most  frequent  consumer  rights-related  problem  across  Europe.  It  indicates  that  the 
existing  possibilities  for  remedies  do  not  ensure  that  consumers  can  solve  problems 
when their rights under that Directive have been breached. Accordingly, introducing a 
clear framework for individual  remedies  would  facilitate private enforcement and be 
complementary to the existing requirement for Member States to ensure that adequate 
and effective means exist to enforce compliance with that Directive. It would also be 
in  line  with  the  approach  to  individual  remedies  in  other  consumer  protection 
Directives,  such  as  Directive  93/13/EEC  and  Directive  1999/44/EC  ensuring  a  more 
coherent and consistent application of the consumer acquis.  

(15)  Member  States  should  ensure  that  remedies  are  available  for  consumers  harmed  by 
unfair  commercial  practices  in  order  to  eliminate  all  the  effects  of  those  unfair 
practices. In order to meet that objective, Member States should make both contractual 
and  non-contractual  remedies  available.  As  a  minimum,  the  contractual  remedies 
provided by the Member States should include the right to contract termination. Non-
contractual remedies provided under national law should, as a minimum, include the 
right  to  compensation  for  damages.  Member  States  would  not  be  prevented  from 
maintaining  or  introducing  rights  to  additional  remedies  for  consumers  harmed  by 
unfair  commercial  practices  in  order  to  ensure  full  removal  of  the  effects  of  such 
practices. 

(16)  The  Fitness  Check  of  consumer  and  marketing  law  directives  and  the  parallel 
evaluation  of  Directive  2011/83/EU  also  identified  a  number  of  areas  where  the 
existing consumer protection rules should be modernised and disproportionate burden 
on traders reduced. 

(17)  When  products  are  offered  to  consumers  in  online  marketplaces,  both  the  online 
marketplace  and  the  third  party  supplier  are  involved  in  the  provision  of  the  pre-
contractual  information  required  by  Directive  2011/83/EU.  As  a  result,  consumers 
using  the  online  marketplace  may  not  clearly  understand  who  their  contractual 
partners are and how their rights and obligations are affected. 

(18)  Online marketplaces should be defined for the purposes of Directive 2011/83/EU in a 
similar  manner  as  in  Regulation  (EU)  524/201342  and  Directive  2016/1148/EU43. 

42 

43 

Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online 
dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 
2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, p. 1). 
Directive  (EU)  2016/1148  of  the  European  Parliament  and  of  the  Council  of  6  July  2016  concerning 
measures for a high common level of security of network and information systems across the Union (OJ 
L 194, 19.7.2016, p. 1). 

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24 

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However, the definition should be updated and rendered more technologically neutral 
in  order  to  cover  new  technologies.  It  is  therefore  appropriate  to  refer,  instead  of  a 
'website',  to  the  notion  of  an  'online  interface'  as  provided  by  Regulation  (EU) 
2018/30244. 

(19)  Specific  transparency  requirements  for  online  marketplaces  should  therefore  be 
provided  in  Directive  2011/83/EU  to  inform  consumers  using  online  marketplaces 
about  the  main  parameters  determining  ranking  of  offers,  whether  they  enter  into  a 
contract with a trader or a non-trader (such as another consumer), whether consumer 
protection  law  applies  and  which  trader  is  responsible  for  the  performance  of  the 
contract  and  for  ensuring  consumer  rights  when  these  rights  apply.  This  information 
should  be  provided  in  a  clear  and  comprehensible  manner  and  not  only  through  a 
reference in the standard Terms and Conditions or similar contractual document. The 
information requirements for online marketplaces should be proportionate and need to 
strike a balance between a high level of consumer protection and the competitiveness 
of  online  marketplaces.  Online  marketplaces  should  not  be  required  to  list  specific 
consumer  rights  when  informing  consumers  about  their  applicability  or  non-
applicability.  The  information  to  be  provided  about  the  responsibility  for  ensuring 
consumer  rights  depends  on  the  contractual  arrangements  between  the  online 
marketplace and the relevant third party traders. Online marketplace may refer to the 
third party trader as being solely responsible for ensuring consumer rights or describe 
its  specific  responsibilities  where  it  assumes  the  responsibility  for  certain  aspects  of 
the  contract,  for  example,  delivery  or  the  exercise  of  the  right  of  withdrawal.  The 
obligation  to  provide  information  about  the  main  parameters  determining  ranking  of 
search  results  is  without  prejudice  to  any  trade  secrets  regarding  the  underlying 
algorithms. This information should explain the main default parameters used by the 
marketplace  but  does  not  have  to  be  presented  in  a  customized  manner  for  each 
individual search query. 
In  accordance  with  Article 15(1)  of  Directive  2000/31/EC45,  online  marketplaces 
should  not  be  required  to  verify  the  legal  status  of  third  party  suppliers.  Instead,  the 
online  marketplace  should  require  third  party  suppliers  of  products  on  the  online 
marketplace  to  indicate  their  status  as  traders  or  non-traders  for  the  purposes  of 
consumer law and to provide this information to the online marketplace.  

(20) 

(21)  Digital content and digital services are often supplied online under contracts where the 
consumer does not pay a price but provides personal data to the trader. Digital services 
are  characterised  by  continuous  involvement  of  the  trader  over  the  duration  of  the 
contract  to  enable  the  consumer  to  make  use  of  the  service,  for  instance,  access  to, 
creation,  processing,  storing  or  sharing  of  data  in  digital  form.  Examples  of  digital 
services are subscription contracts to content platforms, cloud storage, webmail, social 
media  and  cloud  applications.  The  continuous  involvement  of  the  service  provider 
justifies the application of the rules on the right of withdrawal provided in Directive 
2011/83/EU that effectively allow the consumer to test the service and decide, during 

44 

45 

Regulation  (EU)  2018/302  of  the  European  Parliament  and  of  the  Council  of  28  February  2018  on 
addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, 
place of residence or place of establishment within the internal market and amending Regulations (EC) 
No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (OJ L 60 I, 2.3.2018, p. 1).  
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal 
aspects  of  information  society  services,  in  particular  electronic  commerce,  in  the  Internal  Market 
('Directive on electronic commerce') (OJ L 178, 17.7.2000, p. 1). 

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the  14-day  period  from  the  conclusion  of  the  contract,  whether  to  keep  it  or  not.  In 
contrast, contracts for the supply of digital content which is not supplied on a tangible 
medium are characterised by one-off action by the trader to supply to the consumer a 
specific piece or pieces of digital content, such as specific music or video files. This 
one-off nature of the provision of digital content is at the basis of the exception from 
the  right  of  withdrawal  pursuant  to  Article 16(m)  of  Directive  2011/83/EU,  whereby 
the  consumer  loses  the  right  of  withdrawal  when  the  performance  of  the  contract  is 
started, such as download or streaming of the specific content. 

(22)  Directive  2011/83/EU  already  applies  to  contracts  for  the  supply  of  digital  content 
which  is  not  supplied  on  a  tangible  medium  (i.e.  supply  of  online  digital  content) 
regardless of whether the consumer pays a price in money or provides personal data. 
In contrast, Directive 2011/83/EU only applies to service contracts, including contracts 
for  digital  services,  under  which  the  consumer  pays  or  undertakes  to  pay  a  price. 
Consequently,  that  Directive  does  not  apply  to  contracts  for  digital  services  under 
which the consumer provides personal data to the trader without paying a price. Given 
their similarities and the interchangeability of paid digital services and digital services 
provided in exchange for personal data, they should be subject to the same rules under 
Directive 2011/83/EU. 

(23)  Consistency  should  be  ensured  between  the  scope  of  application  of  Directive 
2011/83/EU  and  the  [Digital  Content  Directive],  which  applies  to  contracts  for  the 
supply  of  digital  content  of  digital  services  under  which  the  consumer  provides 
personal data to the trader. 

(24)  Therefore,  the  scope  of  Directive  2011/83/EU  should  be  extended  to  cover  also 
contracts under which the trader supplies or undertakes to supply a digital service to 
the  consumer,  and  the  consumer  provides  or  undertakes  to  provide  personal  data. 
Similar  to  contracts  for  the  supply  of  digital  content  which  is  not  supplied  on  a 
tangible  medium,  the  Directive  should  apply  whenever  the  consumer  provides  or 
undertakes  to  provide  personal  data  to  the  trader,  except  where  the  personal  data 
provided  by  the  consumer  is  exclusively  processed  by  the  trader  for  supplying  the 
digital content or digital service, and the trader does not process this data for any other 
purpose.  Any  processing  of  personal  data  should  comply  with  Regulation  (EU) 
2016/679. 

(25)  Where  digital  content  and  digital  services  are  not  supplied  in  exchange  for  a  price, 
Directive  2011/83/EU  should  also  not  apply  to  situations  where  the  trader  collects 
personal data exclusively to maintain in conformity digital content or a digital service 
or  for  the  sole  purpose  of  meeting  legal  requirements.  Such  situations  could  include 
cases where the registration of the consumer is required by applicable laws for security 
and identification purposes, or cases where the developer of open-source software only 
collects data from users to ensure the compatibility and interoperability of open-source 
software.  

(26)  Directive 2011/83/EU should also not apply to situations where the trader only collects 
metadata, such as the IP address, browsing history or other information collected and 
transmitted  for  instance  by  cookies,  except  where  this  situation  is  considered  a 
contract under national law. It should also not apply to situations where the consumer, 
without  having  concluded  a  contract  with  the  trader,  is  exposed  to  advertisements 
exclusively  in  order  to  gain  access  to  digital  content  or  a  digital  service.  However, 
Member States should remain free to extend the application of the rules of Directive 

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2011/83/EU  to  such  situations  or  to  otherwise  regulate  such  situations  which  are 
excluded from the scope of that Directive. 

(27)  Article 7(3) and Article 8(8) of Directive 2011/83/EU require traders, for off-premises 
and distance contracts respectively, to obtain the consumer’s prior express consent to 
begin performance before the expiry of the right of withdrawal period. Article 14(4)(a) 
provides for a contractual sanction when this requirement is not fulfilled by the trader, 
namely, the consumer does not have to pay for the services provided. The requirement 
to  obtain  consumer’s  express  consent  is  accordingly  only  relevant  for  services, 
including  digital  services,  which  are  provided  against  the  payment  of  the  price.  It  is 
therefore  necessary  to  amend  Article 7(3)  and  Article 8(8)  to  the  effect  that  the 
requirement for traders to obtain the consumer’s prior consent only applies to service 
contracts that place the consumer under an obligation to pay. 

(28)  Article 16(m)  of  Directive  2011/83/EU  provides  for  an  exception  to  the  right  of 
withdrawal in respect of digital content that is not supplied on a tangible medium if the 
consumer  has  given  prior  consent  to  begin  the  performance  before  the  expiry  of  the 
right  of  withdrawal  period  and  acknowledged  that  he  thereby  loses  the  right  of 
withdrawal.  Article 14(4)(b)  of  Directive  2011/83/EU  provides  for  a  contractual 
sanction  when  this  requirement  is  not  fulfilled  by  the  trader,  namely,  the  consumer 
does  not  have  to  pay  for  the  digital  content  consumed.  The  requirement  to  obtain 
consumer’s  express  consent  and  acknowledgment  is  accordingly  only  relevant  for 
digital  content,  which  is  provided  against  the  payment  of  the  price.  It  is  therefore 
necessary  to  amend  Article 16(m)  to  the  effect  that  the  requirement  for  traders  to 
obtain  the  consumer’s  prior  consent  and  acknowledgment  only  applies  to  contracts 
that place the consumer under an obligation to pay. 

(29)  Article 7(4)  of  Directive  2005/29/EC  sets  out  information  requirements  for  the 
'invitation  to  purchase'  a  product  at  a  specific  price.  These  information  requirements 
apply already at the advertising stage, whilst Directive 2011/83/EU imposes the same 
and  other,  more  detailed  information  requirements  at  the  later  pre-contractual  stage 
(i.e.  just  before  the  consumer  enters  into  a  contract).  Consequently,  traders  may  be 
required to provide the same information in advertising (e.g. an online ad on a media 
website) and at the pre-contractual stage (e.g. on the pages of their online web-shops). 

(30)  The  information  requirements  under  Article 7(4)  of  Directive  2005/29/EC  include 
informing  the  consumer  about  the  trader’s  complaint  handling  policy.  The  Fitness 
Check findings show that this information is most relevant at the pre-contractual stage, 
which  is  governed  by  Directive  2011/83/EU.  The  requirement  to  provide  this 
information  in  invitations  to  purchase  at  the  advertising  stage  under  Directive 
2005/29/EC should therefore be deleted. 

(31)  Article 6(1)(h)  of  Directive  2011/83/EU  requires  traders  to  provide  consumers  with 
pre-contractual  information  about  the  right  of  withdrawal,  including  the  model 
withdrawal  form  set  out  in  Annex  I(B)  of  the  Directive.  Article 8(4)  of  Directive 
2011/83/EU  provides  for  simpler  pre-contractual  information  requirements  if  the 
contract  is  concluded  through  a  means  of  distance  communication  which  allows 
limited  space  or  time  to  display  the  information,  such  as  over  the  telephone  or  by 
SMS. The mandatory pre-contractual information requirements to be provided on that 
particular means of distance communisation include information regarding the right of 
withdrawal  as  referred  to  in  point  (h)  of  Article 6(1).  Accordingly,  they  include  also 
the  provision  of  the  model  withdrawal  form  set  out  in  Annex  I(B)  of  the  Directive. 
However,  the  provision  of  the  withdrawal  form  is  impossible  when  contract  is 

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concluded by means such as telephone and it may not be technically feasible in a user-
friendly way on other means of distance communication covered by Article 8(4). It is 
therefore appropriate to exclude the provision of the model withdrawal form from the 
information that traders have to provide in any case on the particular means of distance 
communisation used for the conclusion of the contract under Article 8(4) of Directive 
2011/83/EU. 

(32)  Article 16(a)  of  Directive  2011/83/EU  provides  for  an  exception  from  the  right  of 
withdrawal  regarding  service  contracts  that  have  been  fully  performed  if  the 
performance  has  begun  with  the  consumer’s  prior  express  consent  and  with  the 
acknowledgement that he will lose the right of withdrawal once the contract has been 
fully  performed  by  the  trader.  In  contrast,  Article 7(3)  and  8(7)  of  Directive 
2011/83/EU,  which  deal  with  the  trader’s  obligations  in  situations  where  the 
performance  of  the  contract  is  begun  before  the  expiry  of  the  right  of  withdrawal 
period,  only  require  traders  to  obtain  consumer’s  prior  express  consent  but  not 
acknowledgment  that  the  right  of  withdrawal  will  be  lost  when  the  performance  is 
completed. To ensure consistency between the above-mentioned legal provisions, it is 
necessary to remove, in Article 16(a), the reference to acknowledgment that the right 
of withdrawal will be lost once the contract has been fully performed. 

(33)  Directive  2011/83/EU  provides  fully  harmonised  rules  regarding  the  right  of 
withdrawal  from  distance  and  off-premises  contracts.  In  this  context,  two  concrete 
obligations  have  been  shown  to  constitute  disproportionate  burdens  on  traders  and 
should be deleted. 

(34)  The first relates to the consumer right to withdraw from sales contracts concluded at a 
distance or off-premises even after using goods more than necessary to establish their 
nature,  characteristics  and  functioning.  According  to  Article 14(2)  of  Directive 
2011/83/EU,  a  consumer  is  still  able  to  withdraw  from  the  online/off-premises 
purchase even if he or she has used the good more than allowed; however, in such a 
case, the consumer can be held liable for any diminished value of the good. 

(35)  The obligation to accept the return of such  goods  creates difficulties for traders who 
are required to assess the ‘diminished value’ of the returned goods and to resell them 
as second-hand goods or to discard them. It distorts the balance between a high level 
of  consumer  protection  and  the  competitiveness  of  enterprises  pursued  by  Directive 
2011/83/EU.  The  right  for  consumers  to  return  goods  in  such  situations  should 
therefore  be  deleted.  Annex I  of  Directive  2011/83/EU  'Information  concerning  the 
exercise  of  the  right  of  withdrawal'  should  also  be  adjusted  in  accordance  with  this 
amendment. 

(36)  The  second  obligation  concerns  Article 13  of  Directive  2011/83/EU,  according  to 
which  traders  can  withhold  the  reimbursement  until  they  have  received  the  goods 
back,  or  until  the  consumer  has  supplied  evidence  of  having  sent  them  back, 
whichever  is  the  earliest.  The  latter  option  may,  in  some  circumstances,  effectively 
require  traders  to  reimburse  consumers  before  having  received  back  the  returned 
goods and having had the possibility to inspect them. It distorts the balance between a 
high  level  of  consumer  protection  and  the  competitiveness  of  enterprises  pursued  by 
Directive 2011/83/EU. Therefore, the obligation for traders to reimburse the consumer 
on the mere basis of the proof that the goods have been sent back to the trader should 
be deleted. Annex I of Directive 2011/83/EU 'Information concerning the exercise of 
the right of withdrawal' should also be adjusted in accordance with this amendment. 

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(37)  Article 14(4)  of  Directive  2011/83/EU  stipulates  the  conditions  under  which,  in  the 
event of exercising the right of withdrawal, the consumer does not bear the cost for the 
performance of services, supply of public utilities and supply of digital content which 
is  not  supplied  on  a  tangible  medium.  When  any  of  those  conditions  is  met,  the 
consumer  does  not  have  to  pay  the  price  of  the  service,  public  utilities  or  digital 
content  received  before  the  exercise  of  the  right  of  withdrawal.  As  regards  digital 
content,  one  of  these  non-cumulative  conditions  is  a  failure  to  provide  the  contract 
confirmation including confirmation of the consumer’s prior express consent to begin 
the performance of the contract before the expiry of the right of withdrawal period and 
acknowledgement that the right of withdrawal is lost as a result. This condition is not 
relevant  in the  context of the exercise  of the right  of withdrawal  since the consumer 
has been duly informed and has accepted the loss of this right. It should therefore be 
deleted  from  Article 14(4)(b)  to  ensure  also  consistency  with  Article 16(m)  which 
defines an exception from the right of withdrawal in case of digital content. 

(38)  Considering technological developments, it is necessary to remove the reference to fax 
number  from  the  list  of  the  means  of  communication  in  Article 6(1)(c)  of  Directive 
2011/83/EU since fax is rarely used and largely obsolete. Furthermore, traders should 
be  able  to  provide,  as  alternative  to  an  e-mail  address,  other  means  of  online 
communication  with  consumers,  for  example,  online  forms  and  chats,  provided  that 
such alternative means enable the consumer to retain the content of the communication 
on a durable medium in a similar way as e-mail. Annex I of the Directive 'Information 
concerning  the  exercise  of  the  right  of  withdrawal'  should  also  be  adjusted  in 
accordance with this amendment. 

(39)  A number of additional amendments should be introduced in the instruments amended 

by this Directive to clarify the application of specific rules. 

(40)  No 11  of  Annex I  to  Directive  2005/29/EC  that  prohibits  hidden  advertising  in 
editorial  content  in  media  should  be  adjusted  in  order  to make  it  clear  that the  same 
prohibition applies also where a trader provides information to a consumer in the form 
of search results in response to the consumer’s online search query. 

(41)  Article 16 of the Charter of Fundamental Rights of the EU guarantees the freedom to 
conduct  a  business  in  accordance  with  Union  law  and  national  laws  and  practices. 
However,  marketing  across  Member  States  of  products  as  being  identical  when,  in 
reality, they have a significantly different composition or characteristics may mislead 
consumers  and  cause  them  to  take  a  transactional  decision  that  they  would  not  have 
taken otherwise. 

(42)  Such a practice can therefore be qualified as contrary to Directive 2005/29/EC based 
on a case by case assessment of relevant elements. In order to facilitate the application 
of  existing  law  by  Member  States'  consumer  and  food  authorities,  guidance  on  the 
application  of  current  EU  rules  to  situations  of  dual  quality  of  food  products  was 
provided in the Commission Notice of 26.9.2017 'on the application of EU food and 
consumer protection law to issues of Dual Quality of products – The specific case of 
food'.46  In  this  context,  the  Commission's  Joint  Research  Centre  is  currently 
developing a common approach to the comparative testing of food products. 

(43)  However, the enforcement experience has shown that it may be unclear to consumers, 
traders  and  national  competent  authorities  which  commercial  practices  could  be 

46 

C(2017)6532. 

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29 

  EN 

 
                                                 
contrary  to  the  Directive  2005/29/EC  in  the  absence  of  an  explicit  provision. 
Therefore, Directive 2005/29/EC should be amended to ensure legal certainty both for 
traders and enforcement authorities by addressing explicitly the marketing of a product 
as being identical to the same product marketed in several other Member States, where 
those  products  have  significantly  different  composition  or characteristics.  Competent 
authorities should assess and address on a case by case basis such practices according 
to  the  provisions  of  the  Directive.  In  undertaking  its  assessment  the  competent 
authority should take into account whether such differentiation is easily identifiable by 
consumers,  a  trader's  right  to  adapt  products  of  the  same  brand  for  different 
geographical  markets  due  to  legitimate  factors,  such  as  availability  or  seasonality  of 
raw  materials,  defined  consumer  preferences  or  voluntary  strategies  aimed  at 
improving  access  to  healthy  and  nutritious  food  as  well  as  the  traders'  right  to  offer 
products  of  the  same  brand  in  packages  of  different  weight  or  volume  in  different 
geographical markets. 

(44)  While  off-premises  sales  constitute  a  legitimate  and  well-established  sales  channel, 
like  sales  at  a  trader's  business  premises  and  distance–selling,  some  particularly 
aggressive or misleading marketing practices in the context of visits to the consumer's 
home  without  the  consumer's  prior  agreement  or  during  commercial  excursions  can 
put  consumers under  pressure to  make  purchases of goods they would not  otherwise 
buy  and/or  purchases  at  excessive  prices,  often  involving  immediate  payment.  Such 
practices  often  target  elderly  or  other  vulnerable  consumers.  Some  Member  States 
consider those practices undesirable and deem it necessary to restrict certain forms and 
aspects  of  off-premises  sales  within  the  meaning  of  Directive  2011/83/EU,  such  as 
aggressive  and  misleading  marketing  or  selling  of  a  product  in  the  context  of 
unsolicited  visits  to  a  consumer's  home  or  commercial  excursions,  on  grounds  of 
public  policy  or  the  respect  for  consumers’  private  life  protected  by  Article  7  of  the 
Charter  of  Fundamental  Rights  of  the  EU.  In  accordance  with  the  principle  of 
subsidiarity and in order to facilitate enforcement, it should therefore be clarified that 
Directive  2005/29/EC  is  without  prejudice  to  Member  States'  freedom  to  make 
arrangements without the need for a case-by-case assessment of the specific practice,  
to protect the legitimate interests of consumers with regard to unsolicited visits at their 
private home by a trader in order to offer or sell products or in relation to commercial 
excursions  organised  by  a  trader  with  the  aim  or  effect  of  promoting  or  selling 
products  to  consumers  where  such  arrangements  are  justified  on  grounds  of  public 
policy  or  the  protection  of  private  life.  Any  such  provisions  should  be  proportionate 
and  not  discriminatory.  Member  States  should  be  required  to  notify  any  national 
provisions adopted in this regard to the Commission so that the Commission can make 
this information available to all interested parties and monitor the proportionate nature 
and legality of those measures. 

(45) 

In  accordance  with  the  Joint  Political  Declaration  of 28 September 2011  of  Member 
States  and  the  Commission  on  explanatory  documents47,  Member  States  have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  with  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified. 

47 

OJ C 369, 17.12.2011, p. 14. 

EN 

30 

  EN 

 
                                                 
(46)  Since the objectives of this Directive of better enforcement and modernisation of the 
consumer protection legislation cannot be sufficiently achieved by the Member States 
but  can  rather,  by  reason  of  the  Union-wide  character  of  the  problem,  be  better 
achieved  at  Union  level,  the  Union  may  adopt  measures,  in  accordance  with  the 
principle  of  subsidiarity  as  set  out  in  Article 5  of  the  Treaty  on  European  Union.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Directive does not go beyond what is necessary in order to achieve those objectives. 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Amendments to Directive 2005/29/EC 

Directive 2005/29/EC is amended as follows: 

(1)  Article 3 is amended as follows: 

(a) Paragraph 5 is replaced by the following: 

This  Directive  does  not  prevent  Member  States  from  adopting  provisions  to 
protect  the  legitimate  interests  of  consumers  with  regard  to  aggressive  or 
misleading marketing or selling practices in the context of unsolicited visits by 
a  trader  to  a  consumer's  home,  or  with  regard  to  commercial  excursions 
organised by a trader with the aim or effect of promoting or selling products to 
consumers,  provided  that  such  provisions  are  justified  on  grounds  of  public 
policy or the protection of the respect for private life. 

(b) Paragraph 6 is replaced by the following: 

Member  States  shall  notify  the  Commission  without  delay  of  any  national 
provisions  applied  on  the  basis  of  paragraph  5  as  well  as  of  any  subsequent 
changes.  The  Commission  shall  make  this  information  easily  accessible  to 
consumers and traders on a dedicated website. 

(2)  The following point (c) is inserted in paragraph 2 of Article 6: 

(c)  Any  marketing  of  a  product  as  being  identical  to  the  same  product 
marketed  in  several  other  Member  States,  while  those  products  have 
significantly different composition or characteristics; 

(3)  Point (d) of Article 7(4) is replaced by the following: 

(d)  the  arrangements  for  payment,  delivery  and  performance,  if  they 
depart from the requirements of professional diligence; 

(4)  The following Article 11a is inserted: 

‘Article 11a  

Redress 

1.  In  addition  to  the  requirement  to  ensure  adequate  and  effective  means  to 
enforce compliance in Article 11, Member States shall ensure that contractual 
and  non-contractual  remedies  are  also  available  for  consumers  harmed  by 
unfair commercial practices in order to eliminate all the effects of those unfair 
commercial practices in accordance with their national law.  

2.  Contractual  remedies  shall  include,  as  a  minimum,  the  possibility  for  the 
consumer to unilaterally terminate the contract.  

EN 

31 

  EN 

 
3.  Non-contractual  remedies  shall  include,  as  a  minimum,  the  possibility  of 
compensation for damages suffered by the consumer.   

(5)  Article 13 is replaced by the following:  

‘Article 13 

Penalties 

1.  Member  States  shall  lay  down  the  rules  on  penalties  applicable  to  
infringements of the national provisions adopted pursuant to this Directive and 
shall  take  all  necessary  measures  to  ensure  that  they  are  implemented.  The 
penalties provided for must be effective, proportionate and dissuasive.  

2.  Member  States  shall  ensure  that,  when  deciding  on  whether  to  impose  a 
penalty and on its level, the administrative authorities or courts shall give due 
regard to the following criteria where relevant:  

(a) 

(b) 

(c) 

the nature, gravity and duration or temporal effects of the infringement;  

the  number  of  consumers  affected,  including  those  in  other  Member 
State(s);  

any action taken by the trader to mitigate or remedy the damage suffered 
by consumers; 

(d)  where  appropriate, 
infringement; 

the 

intentional  or  negligent  character  of 

the 

(e) 

(f) 

(g) 

any previous infringements by the trader; 

the  financial  benefits  gained  or  losses  avoided  by  the  trader  due  to  the 
infringement; 

any other aggravating or mitigating factor applicable to the circumstances 
of the case. 

3.  Where  the  penalty  to  be  imposed  is  a  fine,  the  infringing  trader’s  annual 
turnover  and  net  profits  as  well  as  any  fines  imposed  for  the  same  or  other 
infringements of this Directive in other Member States shall also be taken into 
account in the determination of its amount. 

4. Member States shall ensure that the penalties for widespread infringements 
and widespread infringements with a Union dimension within the meaning of 
Regulation  (EU)  No  2017/2934  include  the  possibility  to  impose  fines,  the 
maximum amount of which shall be at least 4 % of the trader's annual turnover 
in the Member State or Member States concerned. 

5.  When  deciding  about the allocation of revenues  from  fines  Member  States 
shall take into account the general interest of consumers. 

6.  Member  States  shall  notify  their  rules  on  penalties  to  the  Commission  by 
[date for the transposition of the Directive] and shall notify it without delay of 
any subsequent amendment affecting them.’ 

(6)  No. 11 of Annex I is replaced by the following:  

11.  Using  editorial  content  in  the  media,  or  providing  information  to  a 
consumer’s online search query, to promote a product where a trader has paid 
for the promotion without making that clear in the content or search results or 
by  images  or  sounds  clearly  identifiable  by  the  consumer  (advertorial;  paid 

EN 

32 

  EN 

 
placement  or  paid  inclusion).  This 
2010/13/EU48. 

is  without  prejudice  to  Directive 

Article 2 

Amendments to Directive 2011/83/EU 

Directive 2011/83/EU is amended as follows: 

(1)  Article 2 is amended as follows:  

(a)  The following point (4a) is inserted: 

‘(4a)  ‘personal  data’  means  personal  data  as  defined  in  Article 4(1)  of 
Regulation (EU) 2016/679;’ 

(b)  Point (6) is replaced by the following: 

‘(6)  ‘service  contract’  means  any  contract  other  than  a  sales  contract  under 
which the trader supplies or undertakes to supply a service to the consumer and 
the  consumer  pays  or  undertakes  to  pay  the  price  thereof.  Reference  to 
‘services’ also includes 'digital services’ and reference to 'service contract’ also 
includes 'digital service contract’; 

(c)  Point (11) is replaced by the following: 

‘(11)  ‘digital  content’  means  data  which  are  produced  and  supplied  in  digital 
form,  including  video  files,  audio  files,  applications,  digital  games  and  any 
other software’;  

(d)  The following points are added: 

‘(16)  ‘contract  for  the  supply  of  digital  content  which  is  not  supplied  on 
tangible medium’ means a contract under which a trader supplies or undertakes 
to  supply  specific  digital  content  to  the  consumer  and  the  consumer  pays  or 
undertakes  to  pay  the  price  thereof.  This  also  includes  contracts  where  the 
consumer provides or undertakes to provide personal data to the trader, except 
where the personal data provided by the consumer is exclusively processed by 
the trader for the purpose of supplying the digital content, or for the trader to 
comply  with  legal  requirements  to  which  the  trader  is  subject,  and  the  trader 
does not process this data for any other purpose; 

(17)  ‘digital  service’  means  (a)  a  service  allowing  the  consumer  the  creation, 
processing  or  storage  of,  or  access  to,  data  in  digital  form;  or  (b)  a  service 
allowing  the  sharing  of  or  any  other  interaction  with  data  in  digital  form 
uploaded or created by the consumer and other users of that service, including 
video  and  audio  sharing  and  other  file  hosting,  word  processing  or  games 
offered in the cloud computing environment and social media. 

(18) ‘digital service contract’ means a contract under which a trader supplies or 
undertakes to supply a digital service to the consumer and the consumer pays 
or  undertakes  to  pay the price thereof. This  also includes contracts where  the 

48 

Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  on  the 
coordination  of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member 
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) 
(OJ L 95, 15.4.2010, p. 1). 

EN 

33 

  EN 

 
                                                 
consumer provides or undertakes to provide personal data to the trader, except 
where the personal data provided by the consumer is exclusively processed by 
the trader for the purpose of supplying the digital service, or for the trader to 
comply  with  legal  requirements  to  which  the  trader  is  subject,  and  the  trader 
does not process this data for any other purpose;  

(19) ‘online marketplace’ means a service provider which allows consumers to 
conclude  online  contracts  with  traders  and  consumers  on  the  online 
marketplace’s online interface; 

(20)  ‘online  interface’  means  online  interface  as  defined  in  point  (16)  of 
Article 2 of Regulation (EU) 2018/302’ 

(2) 

In paragraph 1 of Article 5 points (g) and (h) are replaced by the following: 

‘(g)  where  applicable,  the  functionality,  including  applicable  technical 
protection measures, of digital content and digital services. 

(h) where applicable, any relevant interoperability of digital content and digital 
services  with  hardware  and  software  that  the  trader  is  aware  of  or  can 
reasonably be expected to have been aware of.’ 

(3) 

In paragraph 1 of Article 6, points (c), (r) and (s) are replaced by the following: 

‘(c) the  geographical  address  at  which  the  trader  is  established  as  well as  the 
telephone  number,  e-mail  address  or  other  means  of  online 
trader’s 
communication  which  guarantee 
the 
that 
correspondence with the trader on a durable medium, to enable the consumer to 
contact  the  trader  quickly  and  communicate  with  him  efficiently.  Where 
applicable,  the  trader  shall  also  provide  the  geographical  address  and  identity 
of the trader on whose behalf he is acting. 

the  consumer  can  keep 

(r)  where  applicable, 
protection measures, of digital content and digital services. 

the  functionality, 

including  applicable 

technical 

(s) where applicable, any relevant interoperability of digital content and digital 
services  with  hardware  and  software  that  the  trader  is  aware  of  or  can 
reasonably be expected to have been aware of.’ 

(4)  The following Article 6a is inserted: 

‘Article 6a 

Additional  information  requirements  for  contracts  concluded  on  online 
marketplaces  

Before a consumer is bound by a distance contract, or any corresponding offer, 
on an online marketplace, the online marketplace shall in addition provide the 
following information: 

(a) 

the  main  parameters  determining  ranking  of  offers  presented  to  the 
consumer as result of his search query on the online marketplace; 

(b)  whether the third party offering the goods, services or digital content is a 
trader  or  not,  on  the  basis  of  the  declaration  of  that  third  party  to  the 
online marketplace;  

(c)  whether  consumer  rights  stemming  from  Union  consumer  legislation 

apply or not to the contract concluded; and  

EN 

34 

  EN 

 
(d)  where the contract is concluded with a trader, which trader is responsible 
for  ensuring  the  application  of  consumer  rights  stemming  from  Union 
consumer  legislation  in  relation  to  the  contract.  This  requirement  is 
without  prejudice  to  the  responsibility  that  the  online  marketplace  may 
have or may assume with regard to specific elements of the contract.’ 

(5)  Paragraph 3 in Article 7 is replaced by the following: 

‘3.  Where  a  consumer  wants  the  performance  of  services,  or  the  supply  of 
water, gas or electricity, where they are not put up for sale in a limited volume 
or  set  quantity,  or  of  district  heating  to  begin  during  the  withdrawal  period 
provided  for  in  Article 9(2),  and  the  contract  places  the  consumer  under  an 
obligation  to  pay,  the  trader  shall  require  that  the  consumer  makes  such  an 
express request on a durable medium.’ 

(6)  Article 8 is amended as follows: 

(a)  paragraph 4 is replaced by the following: 

‘4.  If  the  contract  is  concluded  through  a  means  of  distance  communication 
which allows limited space or time to display the information, the trader shall 
provide, on that particular means prior to the conclusion of such a contract, at 
least  the  pre-contractual  information  regarding  the  main  characteristics  of  the 
goods  or  services,  the  identity  of  the  trader,  the  total  price,  the  right  of 
withdrawal, the duration of the contract and, if the contract is of indeterminate 
duration, 
to, 
terminating 
respectively, in points (a), (b), (e), (h) and (o) of Article 6(1) except the model 
withdrawal  form  set  out  in  Annex  I(B)  referred  to  in  point  (h).  The  other 
information  referred  to  in  Article 6(1)  shall  be  provided  by  the  trader  to  the 
consumer  in  an  appropriate  way  in  accordance  with  paragraph  1  of  this 
Article.’  

the  contract,  as  referred 

the  conditions  for 

(b)  paragraph 8 is replaced by the following: 

‘8.  Where  a  consumer  wants  the  performance  of  services,  or  the  supply  of 
water, gas or electricity, where they are not put up for sale in a limited volume 
or  set  quantity,  or  of  district  heating,  to  begin  during  the  withdrawal  period 
provided  for  in  Article 9(2),  and  the  contract  places  the  consumer  under  an 
obligation  to  pay,  the  trader  shall  require  that  the  consumer  make  an  express 
request.’ 

(7)  Article 13 is amended as follows: 

(a)  paragraph 3 is replaced by the following: 

‘3.  Unless  the  trader  has  offered  to  collect  the  goods  himself,  with  regard  to 
sales  contracts,  the  trader  may  withhold  the  reimbursement  until  he  has 
received the goods back.’  

(b) 

the following paragraphs are added: 

‘4. In respect of personal data of the consumer, the trader shall comply with the 
obligations applicable under Regulation (EU) 2016/679. 

5.  In  respect  of  any  digital  content  to  the  extent  that  it  does  not  constitute 
personal data, which was uploaded or created by the consumer when using the 
digital content or digital service supplied by the trader the trader shall comply 

EN 

35 

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with  the  obligations  and  can  exercise  the  rights  provided  under  [Digital 
Content Directive].’ 

(8)  Article 14 is amended as follows: 

(1)  paragraph 2 is replaced by the following:  

‘After the termination of the contract, the consumer shall refrain from using the 
digital content or digital service and from making it available to third parties.’  

(2)  paragraph 4(b) is amended as follows: 

(a)  Point (ii) is amended as follows: 

 ‘(ii) the consumer has not acknowledged that he loses his right of withdrawal 
when giving his consent’; 

(b)  Point (iii) is deleted. 

(9)  Article 16 is amended as follows:  

(a)  point (a) is replaced by the following: 

‘(a)  service  contracts  after  the  service  has  been  fully  performed  if  the 
performance has begun with the consumer’s prior express consent’; 

(2)  point (m) is replaced by the following:  

‘(m)  contracts  for  the  supply  of  digital  content  which  is  not  supplied  on 
tangible  medium  if  the  performance  has  begun  and,  if  the  contract  places  the 
consumer under an obligation to  pay, where the consumer  has  provided prior 
express consent to begin the performance during the right of withdrawal period 
and acknowledged that he thereby loses his right of withdrawal.’ 

(3) 

the following point is added:  

‘(n)  the  supply  of  goods  that  the  consumer  has  handled,  during  the  right  of 
withdrawal  period,  other  than  what  is  necessary  to  establish  the  nature, 
characteristics and functioning of the goods.’ 

(10)  Article 24 is replaced by the following:  

‘Penalties 

1.  Member  States  shall  lay  down  the  rules  on  penalties  applicable  to  
infringements of the national provisions adopted pursuant to this Directive and 
shall  take  all  necessary  measures  to  ensure  that  they  are  implemented.  The 
penalties provided for must be effective, proportionate and dissuasive.  

2.  Member  States  shall  ensure  that,  when  deciding  on  whether  to  impose  a 
penalty and on its level, the administrative authorities or courts shall give due 
regard to the following criteria where relevant:  

(a) 

(b) 

(c) 

the nature, gravity and duration or temporal effects of the infringement;  

the  number  of  consumers  affected,  including  those  in  other  Member 
State(s);  

any action taken by the trader to mitigate or remedy the damage suffered 
by consumers; 

(d)  where  appropriate, 
infringement; 

the 

intentional  or  negligent  character  of 

the 

EN 

36 

  EN 

 
(e) 

(f) 

(g) 

any previous infringements by the trader; 

the  financial  benefits  gained  or  losses  avoided  by  the  trader  due  to  the 
infringement; 

any other aggravating or mitigating factor applicable to the circumstances 
of the case. 

3.  Where  the  penalty  to  be  imposed  is  a  fine,  the  infringing  trader’s  annual 
turnover  and  net  profits  as  well  as  any  fines  imposed  for  the  same  or  other 
infringements of this Directive in other Member States shall also be taken into 
account in the determination of its amount. 

4. Member States shall ensure that the penalties for widespread infringements 
and widespread infringements with a Union dimension within the meaning of 
Regulation  (EU)  No  2017/2934  include  the  possibility  to  impose  fines,  the 
maximum amount of which shall be at least 4% of the trader's annual turnover 
in the Member State or Member States concerned.   

5.  When  deciding  about the allocation of revenues  from  fines Member  States 
shall take into account the general interest of consumers. 

6.  Member  States  shall  notify  their  rules  on  penalties  to  the  Commission  by 
[date for the transposition of the Directive] and shall notify it without delay of 
any subsequent amendment affecting them.’  

(11)  Annex I is amended as follows:  

(1)  Point A is amended as follows: 

(a) 

the  third  paragraph  of  point  A  under  "Right  of  withdrawal"  is 
replaced by the following: 

“To  exercise  the  right  of  withdrawal,  you  must  inform  us  [2]  of  your 
decision to withdraw from this contract by an unequivocal statement (e.g. 
a  letter  sent  by  post  or  e-mail).  You  may  use  the  attached  model 
withdrawal form, but it is not obligatory. [3]” 

(b)  point  2  under  "Instructions  for  completion"  is  replaced  by  the 

following: 

“[2.] Insert your name, geographical address and your telephone number 
or e-mail address.” 

(c)  point  4  under  "Instructions  for  completion"  is  replaced  by  the 

following: 

“[4.]  In  the  case  of  sales  contracts  in  which  you  have  not  offered  to 
collect  the  goods  in  the  event  of  withdrawal  insert  the  following:  ‘We 
may withhold reimbursement until we have received the goods back.’.” 

(d)  Subpoint  (c)  of  point  5  under  "Instructions  for  completion"  is 

deleted. 

(2) 

In point B the first indent is replaced by the following: 

“To  [here  the  trader’s  name,  geographical  address  and,  where  available,  his 
e-mail address are to be inserted by the trader]:”   

EN 

37 

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Article 3 

Amendments to Directive 93/13/EC 

Directive 93/13/EEC is amended as follows: 

The following Article 8b is inserted:  

‘Article 8b 

1. Member States shall lay down the rules on penalties applicable to  infringements 
of  the  national  provisions  adopted  pursuant  to  this  Directive  and  shall  take  all 
necessary measures to ensure that they are implemented. The penalties provided for 
must be effective, proportionate and dissuasive.  

2.  Member  States  shall ensure  that, when  deciding  on  whether  to  impose  a  penalty 
and on its level, the administrative authorities or courts shall give due regard to the 
following criteria where relevant:  

(b) 

(c) 

(d) 

the nature, gravity and duration or temporal effects of the infringement;  

the number of consumers affected, including those in other Member State(s);  

any  action  taken  by  the  trader  to  mitigate  or  remedy  the  damage  suffered  by 
consumers; 

(e)  where appropriate, the intentional or negligent character of the infringement; 

(f) 

(g) 

(h) 

any previous infringements by the trader; 

the  financial  benefits  gained  or  losses  avoided  by  the  trader  due  to  the 
infringement; 

any  other  aggravating  or  mitigating  factor  applicable  to  the  circumstances  of 
the case. 

3. Where the penalty to be imposed is a fine, the infringing trader’s annual turnover 
and net profits as well as any fines imposed for the same or other infringements of 
this  Directive  in  other  Member  States  shall  also  be  taken  into  account  in  the 
determination of its amount. 

4.  Member  States  shall  ensure  that  the  penalties  for  widespread  infringements  and 
widespread infringements with a Union dimension within the meaning of Regulation 
(EU) No 2017/2934 include the possibility to impose fines, the maximum amount of 
which  shall  be  at  least  4%  of  the  trader's  annual  turnover  in  the  Member  State  or 
Member States concerned.   

5.  When  deciding  about  the  allocation  of  revenues  from  fines  Member  States  shall 
take into account the general interest of consumers. 

6. Member States shall notify their rules on penalties to the Commission by [date for 
the transposition of the Directive] and shall notify it without delay of any subsequent 
amendment affecting them.’ 

Article 4 

Amendments to Directive 98/6/EC 

Directive 98/6/EC is amended as follows: 

Article 8 is replaced by the following:  

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‘Article 8 

1. Member States shall lay down the rules on penalties applicable to  infringements 
of  the  national  provisions  adopted  pursuant  to  this  Directive  and  shall  take  all 
necessary measures to ensure that they are implemented. The penalties provided for 
must be effective, proportionate and dissuasive.  

2.  Member  States  shall ensure  that, when  deciding  on  whether  to  impose  a  penalty 
and on its level, the administrative authorities or courts shall give due regard to the 
following criteria where relevant:  

(i) 

(j) 

(k) 

the nature, gravity and duration or temporal effects of the infringement;  

the number of consumers affected, including those in other Member State(s);  

any  action  taken  by  the  trader  to  mitigate  or  remedy  the  damage  suffered  by 
consumers; 

(l)  where appropriate, the intentional or negligent character of the infringement; 

(m)  any previous infringements by the trader; 

(n) 

(o) 

the  financial  benefits  gained  or  losses  avoided  by  the  trader  due  to  the 
infringement; 

any  other  aggravating  or  mitigating  factor  applicable  to  the  circumstances  of 
the case. 

3. Where the penalty to be imposed is a fine, the infringing trader’s annual turnover 
and net profits as well as any fines imposed for the same or other infringements of 
this  Directive  in  other  Member  States  shall  also  be  taken  into  account  in  the 
determination of its amount. 

4.  Member  States  shall  ensure  that  the  penalties  for  widespread  infringements  and 
widespread infringements with a Union dimension within the meaning of Regulation 
(EU) No 2017/2934 include the possibility to impose fines, the maximum amount of 
which  shall  be  at  least  4 %  of  the  trader's  annual  turnover  in  the  Member  State  or 
Member States concerned. 

5.  When  deciding  about  the  allocation  of  revenues  from  fines  Member  States  shall 
take into account the general interest of consumers. 

6. Member States shall notify their rules on penalties to the Commission by [date for 
the transposition of the Directive] and shall notify it without delay of any subsequent 
amendment affecting them.’ 

Article 5 

Transposition 

1. 

Member States shall adopt and publish, by 18 months after adoption at the latest, the 
laws,  regulations  and  administrative  provisions  necessary  to  comply  with  this 
Directive.  They  shall  forthwith  communicate  to  the  Commission  the  text  of  those 
provisions. 

They shall apply those provisions from 6 months after transposition deadline. 

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

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2. 

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

Article 6 

Entry into force 

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

Article 7 

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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