CELEX: 51993PC0396
Language: en
Date: 1993-10-07
Title: Amend proposal for a COUNCIL DIRECTIVE ON THE PROTECTION OF CONSUMERS IN RESPECT OF CONTRACTS NEGOTIATED AT A DISTANCE (DISTANCE SELLING)

No C 308/ 18                               Official Journal of the European Communities                                     15 . 11 . 93
                 Amended proposal for a Council Directive on the protection of consumers in respect of
                                         contracts negotiated at a distance ( distance selling) ( x )
                                                             ( 93/C 308/02 )
                                                    COM(93) 396 final — SYN 411
                        (Submitted by the Commission pursuant to Article 149 (3) of the ECC Treaty on
                                                            7 October 1993)
                  INITIAL COMMISSION PROPOSAL                                                   AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN CO IMMUNITIES,
Having regard to the Treaty establishing the European
Economic Community, and in particular Article 100a
thereof,
Having regard to the proposal from the Commission,
In cooperation with the European Parliament,
Having regard to the opinion of the Economic and Social                 Having regard to the opinion of the Economic and Social
Committee,                                                              Committee (2 ),
    1 . Whereas measures must be taken for the gradual                      1 . Whereas measures must be taken for the gradual
        establishment of the internal market by                                 establishment and       consolidation  of the    internal
        31 December 1992 ; whereas the internal market is                       market; whereas the internal market is to be an area
        to be an area without internal frontiers within which                   without internal frontiers within which the free
        the free movement of goods, persons, services and                       movement of goods, persons, services and capital is
        capital is assured;                                                     assured;
   2 . Whereas cross-frontier distance selling could be one                 2 . Whereas the free movement of goods and services
        of the main tangible results of the completion of the                   affects not only the business sector but also private
        internal market for consumers, as noted inter alia in                   individuals; whereas it implies that consumers
        the communication from the Commission entitled                          should be able to have access to the access goods
        'Towards a Single Market in distribution' ( 2 );                        and services of a Member State on the same terms as
                                                                                the local population;
                                                                            3 . Whereas cross-frontier distance selling could be
                                                                                one of the main tangible results of the completion
                                                                                of the internal market for the consumers, as
                                                                                noted inter alia in the communication from the
                                                                                Commission entitled 'Towards a Single Market
                                                                                in distribution' ( 3 ); whereas it is indispensable for
                                                                                the proper functioning of the Single Market that
                                                                                consumers should be able to apply to a business
                                                                                outside their country, even if it has a branch in the
                                                                                consumer's country of residence;
    3 . Whereas the development of new technologies is                     4 . Whereas the development of new technologies is
        multiplying the means available to consumers to                         multiplying the means available to consumers to
(') OJ No C 156 , 23 . 6 . 1992 , p . 14 .                              ( 2 ) OJ No C 19 , 25 . 1 . 1993 .
i 1 ) Document COM(91 ) 41 , 11.3 . 1991                                ( 3 ) Document COM(91 ) 41 , 11 . 3 . 1991
 ---pagebreak---   15 . 11 . 93                             Official Journal of the European Communities                          No C 308/19
                    INITIAL COMMISSION PROPOSAL                                            AMENDED PROPOSAL
         have knowledge of the offers being made everywhere                have knowledge of the offers being made everywhere
         in the Community and for placing orders; whereas                  in the Community and for placing orders; whereas
         there is a need to introduce a minimum set of                     there is a need to introduce a minimum set of
         common rules, before a Member State takes                         common rules, before each Member State takes
         different or diverging measures to protect                        different or diverging measures to protect
         consumers, with negative repercussions on                         consumers, with negative repercussions on
         competition between businesses in the Single                      competition between businesses in the Single
         Market;                                                           Market; whereas Community measures are needed
                                                                           in this field ;
     4. Whereas paragraphs 18 and 19 of the Annex to the               5 . Unchanged .
         Council Resolution of 14 April 1975 on a
         preliminary programme of the European Economic
         Community for a consumer protection and
         information policy (*) point to the need to protect
         the purchasers of goods or services against demands
         for payment for unsolicited goods and against
         high-pressure selling methods;
    5 . Whereas the communication from the Commission                  6 . Unchanged ,
        to the Council entitled 'A new impetus for consumer
        protection policy' and approved by the Council
        Resolution of 23 June 1986 (2 ) states in
        paragraph 33 that the Commission will present
        proposals regarding the use of new information
        technologies enabling consumers to place orders
        with suppliers from their homes;
    6 . Whereas the Council resolution of 9 November                   7. Unchanged .
         1989 on future priorities for relaunching consumer
        protection policy ( 3 ) calls upon the Commission to
        give priority to the areas referred to in the Annex to
        the resolution; whereas that Annex refers to 'new
        technologies involving teleshopping'; whereas the
        Commission has responded to this resolution by
        adopting a three-year action plan for consumer
        protection policy in the EEC ( 1990 to 1992 ) ( 4); and
        whereas that plan provides for the adoption of a
        Directive;
    7. Whereas contracts negotiated at a distance involve              8 . Unchanged ,
        the use of one or more means of communication at
        a distance and whereas the ongoing evolution of
        these means of communication does not allow an
        exhaustive list to be complied but requires the
        definition of principles valid even for those that are
        still little used; whereas it is necessary to establish
        clearly the difference between advertising and
        solicitation; whereas there is solicitation from the
        time the consumer possesses the elements necessary
        to contract;
o OJ No C 92, 25 . 4 . 1975 , p. 1 .
(2 ) OJ No C 167, 5 . 7. 1986, p. 1 .
( 3 ) OJ No C 294, 22 . 11 . 1989, p. 1 .
(4 ) Document COM(9Q ) 89 , 3 . 5 . 1990 .
 ---pagebreak---                                                                                                         k
No C 308/20                             Official Journal of the European Communities                                 15 . 11 . 93
                INITIAL COMMISSION PROPOSAL                                              AMENDED PROPOSAL
 8 . Whereas the principles set out in Article 8 and 10 of            9 . Whereas the principles set out in Articles 8 and 10
     the European Convention for the protection of                        of the European Convention for the protection of
     human rights arid fundamental freedoms of                            human rights and fundamental freedoms of
     4 November 19.50 apply; whereas all matters                          4 November 1950 apply; whereas the consumer's
     relating to the collection, storage and processing of                right to freedom from intrusion in respect of certain
     personal data fall under Commission Directives                       particularly invasive means of communication
     .../.. ./EEC     and  .../.. ./EEC   of   ...   on   the             should be recognized; whereas provision should be
     protection of individuals in relation to the                         made for certain restrictions on the use of such
     processing of personal data and the protection of                    means; whereas all matters relating to the collection,
     privacy; whereas the consumer's right to freedom                     storage , and processing of personal data fall under
     from intrusion should be recognized and provision                    Council Directive .../.. ./EEC on the protection of
     made for possible restrictions on the use of certain                 individuals in relation to the processing of personal
     means of communication and in particular                             data and the protection of privacy;
     restrictions deriving from the above Directives;
 9 . Whereas the consumer's custom is solicited via a              10 . Unchanged ,
     variety of means of communication; whereas such
     solicitations must be clearly identified as commercial
     propositions ; whereas this information must comply
     with the other relevant Community rules, in
     particular Council Directive 84/450/EEC of
     10 September 1984 relating to the approximation of
     the laws, regulations and administrative provisions
     of the Member States concerning misleading
     advertising (');
                                                                   11 . Whereas a Member State may ban in the general
                                                                          interest the marketing on its territory of certain
                                                                          goods and services through contracts negotiated at a
                                                                          distance; whereas this ban should comply with
                                                                          Community rules; whereas such bans are already
                                                                          foreseen, notably in regard to medicinal products,
                                                                          under Directives 89/552/EEC (M and 92/28/EEC ( 2 );
10 . Whereas the use of such technologies must not lead            12 . Unchanged ,
     to a reduction in the information provided to the
     consumer; whereas it is therefore necessary to
     determine the information that is required to be sent
     to    the    consumer    whatever     the    means    of
     communication used ;
                                                                   13 . Whereas advance payment poses a problem of
                                                                          financial security for the consumer; whereas in
                                                                          contrast to contracts concluded in business premises
                                                                          the consumer assumes a greater risk as regards the
                                                                          suppliers' reliability; whereas the consumer should
                                                                          have the opportunity of paying only on
                                                                          performance; whereas this possibility does not
                                                                          prevent the professional from also proposing
                                                                          advance payment;
11 . Whereas the promotional technique involving the               14 . Unchanged .
     sending of a product or the provisions of a service
                                            \
                                                                  (') OJ No L 298 , 17. 10 . 1989
o OJ No L 250, 19 . 9 . 1984, p. 17 .                             ( 2 ) OJ No L 113 , 30 . 4 . 1992 .
 ---pagebreak---  15 . 11 . 93                               Official Journal of the European Communities                              No C 308/21
                  INITIAL COMMISSION PROPOSAL                                                 AMENDED PROPOSAL
        to the consumer in return for payment may not be
        permitted without a prior request from or the
        explicit agreement of the consumer;
 11a . Whereas it is necessary to prescribe a time limit for           15 . Unchanged .
        performance if this is not specified at the time of
        ordering;
 12 . Whereas information disseminated by certain                      16 . Unchanged .
        electronic technologies often has an ephemeral
        character in so far as it is not received on a
        permanent medium ; whereas the consumer must
        therefore receive written notice of the content of the
        contract and of all information necessary to its
        proper performance , not later than at the time of the
        delivery of the good or the supply of the service;
 13 . Whereas the consumer is not able to see in concreto              17 . Whereas the consumer is not able to see in concreto
        the product or ascertain the service provided at the                  the product or ascertain the service provided at the
        moment when his custom is solicited; whereas the                      moment when his custom is solicited; whereas the
        consumer should be permitted to cancel the contract                   consumer should be permitted to cancel the contract
        after receiving the product or service; whereas, if                   after receiving the product or service; whereas, if
        this right is to be more than formal, the costs borne                 this right is to be more than formal, the costs borne
        by the consumer when making use of it must be                         by the consumer when making use of it must be
        limited to the charges for return; whereas Council                    limited to the charges for return; whereas that right
        Directive 85/577/EEC of 20 December             1985 to               must be without prejudice to the application of the
       protect the consumer in respect of contracts                           consumer's customary rights with particular regard
        negotiated away from business premises (') is to be                   to the receipt of damaged goods or services or goods
        amended later to ensure harmonization, in particular                  and services not corresponding to the description in
        of the method for calculating the period during                       the offer of such goods or services; whereas Council
       which the contract may be cancelled ;                                  Directive   85/577/EEC of 20 December        1985 to
                                                                              protect the consumer in respect of contracts
                                                                              negotiated away from business premises ( ] ) is to be
                                                                              amended later to ensure harmonization, in particular
                                                                              of the methods for calculating the period during
                                                                              which the contract may be cancelled;
14 . Whereas this Directive should not prejudice the free              18 . Whereas this Directive should not prejudice the free
       movement of radio and television broadcasts, as                        movement of lawful radio and television broadcasts,
       guaranteed by Articles 59 and 60, third paragraph,                     as guaranteed by Articles 59 and 60, third
       of the EEC Treaty, nor the application of the rules                    paragraph, of the ECC Treaty, nor the application
       of Council Directive 89/552 /EEC of 3 October 1989                     of the rules of Council Directive 89/552/EEC of
       on the coordination of certain provisions laid down                    3 October 1989 on the coordination of certain
       by law, regulation or administrative action in                        provisions laid down by law, regulation or
       Member States, concerning the pursuit of television                    administrative action in Member States, concerning
        broadcasting activities ( 2 );                                       the pursuit of television broadcasting activities (2 );
15 . Whereas non-compliance with this Directive may                    19 . Whereas non-compliance with this Directive may
       harm not only numerous consumers but also                              harm not only numerous consumers but also
       competitors; whereas there is therefore a need for                    competitors; whereas there is therefore a need for
(') OJ No L 372 , 31 . 12 . 1985 , p . 31                             (') OJ No L 298 , 17 . 10 . 1989 , p . 23 .
( 2 ) OJ No L 298 , 17 . 10 . 1989 , p . 23                           ( 2 ) OJ No L 156 , 10 . 12 . 1992 , p . 21 .
 ---pagebreak--- No C 308/22                           Official Journal of the European Communities                                   15 . 11 . 93
                INITIAL COMMISSION PROPOSAL                                            AMENDED PROPOSAL
      provisions permitting trade and consumer                          provisions permitting trade and consumer
      organization to monitor its application in                        organization to monitor its application in
      transborder transactions; whereas to the extent                   transborder transactions; whereas, to the extent
      authorized by the legislation of the Member States                authorized by the legislation of the Member States
      concerned , these organizations should also be                    concerned , these organizations should also be
      allowed to act in the State from where the conflict               allowed to act in the supplier 's state of origin;
      originates.
                                                                 20 .   Whereas          Commission           recommandation
                                                                        92/295/EEC ( ! ) on codes of practice for the
                                                                        protection of consumers in respect of contracts
                                                                        negotiated at a distance stipulates that it is desirable
                                                                        that the minimum binding rules contained in the
                                                                        existing Directives should be supplemented by
                                                                        voluntary self-regulatory arrangements in the form
                                                                        of codes of practice;
                                                                21 .    Whereas it is important, in the interests of optimum
                                                                        consumer protection, for consumers to be informed
                                                                        of the provisions of this Directive and the existence
                                                                        and content of the codes of practice in this field;
                                                                22 .    Whereas there is a risk that, in certain cases, the
                                                                        consumer may be deprived of protection under this
                                                                        Directive by designating the law of a non-Member
                                                                        country as the law applicable to the contract;
                                                                        whereas provisions should therefore be included in
                                                                        this Directive designed to avert this risk;
HAS ADOPTED THIS DIRECTIVE :                                    HAS ADOPTED THIS DIRECTIVE :
                          Article 1                                                            Article 1
                           Object                                                               Object
                                                                                           11
The object of this Directive is to approximate the laws-,       The object of this Directive is to approximate the laws,
regulations and administrative provisions of the Member         regulations and administrative provisions of the Member
States concerning contracts negotiated at a distance            States concerning contracts negotiated at a distance
between consumers and suppliers and the soliciting of           between consumers and suppliers and solicitations with a
custom and preparatory acts with a view to such                 view to the conclusion of such contracts and preparatory
contracts .                                                     acts with a view to such contracts .
                          Article 2                                                            Article 2
                         Definitions                                                          Definitions
For the purpose of this Directive:                              For the purpose of this Directive:
— 'contract negotiated at a distance' means any contract        — 'contract negotiated at a distance' means any contract
    concerning a product or service concluded after                   concerning a product or service concluded after
    solicitation of custom by the supplier;                           solicitation of custom by the supplier as part of a
                                                                      sales or service provision scheme,
    — without the supplier and the consumer being                     — without the supplier and the consumer being
        simultaneously present, and                                       simultaneously present, and
                                                                o OJ No L 156 , 10 . 12 . 1992 , p. 21 .
 ---pagebreak--- 15 . 11 . 93                            Official Journal of the European Communities                            No C 308/23
               INITIAL COMMISSION PROPOSAL                                            AMENDED PROPOSAL
    — using a means of communication at a distance to                 — using a means of communication at a distance to
         convey the contract solicitation and the order.                  convey the contract solicitation and the order.
    This concept does not include arrangements, orders,               Where a contract has to be fulfilled by successive acts
    agreements or individual acts of performance within               of performance or a series of separate operations over
    an overall contract, in particular a contract to be               a period of time, the provisions of this Directive shall
    performed by a series of separate operations over a               apply only to the overall contract, if it has been
    period of time,                                                   negotiated at a distance .
— 'consumer' means a natural person who, in                       Unchanged ,
    transactions covered by this Directive, is acting for
    purposes which can be regarded as outside his trade
    or profession,
— 'supplier' means a natural or legal person who, for              — 'supplier' means a natural or legal person who, for
    the transaction in question, acts in his commercial or            the transaction in question, acts in his commercial or
    professional capacity and anyone acting in the name               professional capacity,
    or on behalf of a supplier;
— 'means of communication at a distance ' means any               Unchanged ,
    method permitting the exchange of the information
    required for the negotiation and conclusion of a
    contract between a consumer and a supplier not in
    the presence of one another; a non-exhaustive list of
    the means covered by this Directive is contained in
    Annex 1 ,
— 'operator of a means of communication ' means any               Unchanged,
    public or private natural or legal person making the
    various   means   of communication       at   a  distance
    available to suppliers and/or consumers,
— 'contract solicitation' means any communication at a            — 'contract solicitation' means any communication at
    distance including all the necessary elements to enable          distance, whether public or personalized, including all
    the recipient to enter directly into a contractual               the necessary elements to enable the recipient to enter
    commitment, simple advertising being excluded,                   directly into a contractual commitment.
                                                                     Forms of advertising that do not include all the
                                                                     elements necessary for the consumer to enter , directly
                                                                     into a contractual relationship are not considered as
                                                                     contract solicitations,
 — 'order' means the expression by the consumer of his            Unchanged .
    intention to enter into a contractual commitment.
                          Article 3                                                        Article 3
                        Exemptions                                                        Exemptions
This Directive shall not apply to :                               This Directive shall not apply to :
— automatic vending machines,                                     — automatic vending machines,
— automated commercial premises,                                   — automated commercial premises,
 ---pagebreak---  No C 308/24                             Official Journal of the European Communities                               15 . 11 . 93
               INITIAL COMMISSION PROPOSAL                                              AMENDED PROPOSAL
 — made-to-measure products,                                        contracts for the supply of foodstuffs, beverages or other
                                                                    goods for current consumption in the household and
                                                                    supplied to the home by distributors making frequent and
                                                                    regular deliveries.
 — services with reservation (a list of the services in
    question is attached as Annex II,
 — contracts for the supply of:
    — foodstuffs, beverages or other goods intended for
        current consumption in the household ,
    — services for current consumption.
                          Article 4                                                          Article 4
Restriction on the use of certain means of communication           Restriction of the use of certain means of communication
                        at a distance                                                      at a distance
Member States shall take the necessary measures to                 Member States shall take the measures necessary
ensure that means of communication at a distance are               effectively to protect consumers who have indicated that
used to solicit custom from consumers only under                   they do not wish to be solicited against such soliciting,
conditions of fair competition and with due regard for             without prejudice to the other safeguards available to the
the consumer's privacy, particularly pursuant to                   consumer under Community legislation concerning the
Article 17 of Directive .../.. ./EEC concerning the                protection of personal data and privacy.
protection of individuals in relation to the processing of
personal data and privacy in the context of the public
digital telecommunications networks.
                                                                   The means of communication listed below shall be used
                                                                   only with the prior consent of the consumer:
                                                                    — facsimile machine ( fax ),
                                                                    — electronic mail,
                                                                    — telephone,
                                                                    — automatic calling units
                          Article 5                                                          Article 5
                        Presentation                                                       Presentation
1 . Member States shall take the necessary measures to             1.    Member States shall take the necessary measures to
ensure that all contract solicitations shall be designed and       ensure that all contracts solicitations shall be designed
presented in such a way as to comply with the principles           and presented in such a way as to comply with the
of good faith in commercial transactions, and those for            principles of good faith in commercial transactions and
the protection of minors.                                          the principles governing the protection of minors and
                                                                   those who are unable under the law of the Member
                                                                   States to give their consent.
2.    All    contract   solicitations   shall    make    their     2.    Unchanged .
commercial purpose clear.
3.    Where the cost of using a means of communication             3.    Any contract solicitation must state without any
at a distance to place the order or perform the                    ambiguity whether the cost of using a means of
 ---pagebreak--- 15 . 11 . 93                            Official Journal of the European Communities                               No C 308/25
                INITIAL COMMISSION PROPOSAL                                            AMENDED PROPOSAL
service must be borne by the consumer, he shall be                 communication at a distance to place the order or
informed of this fact if it is not evident .                       perform the service must be borne by the consumer.
                          Article 6                                                          Article 6
               Content of contract solicitations                                 Content of contract solicitations
At the time when his custom is solicited , the consumer            At the time when his custom is solicited , the consumer
shall be provided with clear and unambiguous                       shall be provided with clear and unambiguous infomation
information in any way appropriate to the means of                 of communication, comprising in particular :
communication, comprising in particular:
— the identity of the supplier,                                    — the identity of the supplier,
 — the main characteristics of the product or service,             — the main characteristics of the product or service,
 — the price and quantity of any transport charges if not          — the price and quantity of any transport charges, and
    included ,                                                         VAT charges, if not included ,
— the        payment,      delivery     and      performance        — the       payment,      delivery     and      performance
    arrangements ,                                                     arrangements ,
 — the period for which the solicitation remains valid .           — right of withdrawal for the purposes of Article 11 ,
                                                                  — the period for which the solicitation remains valid .
                          Article 7                                                          Article 7
              Contract solicitation by television                                Contract solicitation by television
In the case of solicitation by television :                        In the case of solicitation by television, the presentation
                                                                   within the meaning of Article 5 of this Directive must
 — the presentation within the meaning of Article 5 of             observe the provisions of Directive 89/552/EEC .
    this Directive must exclusively observe the provisions         Compliance with the provisions of that Directive and of
    relating to the protection of minors in Article 22 of          the present Directive must not hamper freedom of radio
    Directive 89/552/EEC ,                                         and television broadcast.
 — the supplier must ensure that the information set out           If the full contents of the contract solicitation within the
    in Article 6 is conveyed in writing no later than the          meaning of Article 6 is not displayed on screen and if the
    moment when direct contact is made between the
                                                                   consumer so requests , the supplier must ensure that this
    suDolier and the consumer .
                                                                   information is conveyed in writing.
                                                                                             Article 8
                                                                                         Financial security
                                                                   No payment may be required of the consumer before
                                                                   delivery of the product or performance of the service .
                          Article 8                                                          Article 9
                        Inertia selling                                                    Inertia selling
1.    Member States shall take appropriate steps to                3.    Unchanged .
ensure that consumers are not supplied with products or
 ---pagebreak--- No C 308/26                             Official Journal of the European Communities                                15 . 11 . 93
                INITIAL COMMISSION PROPOSAL                                            AMENDED PROPOSAL
services which they have not ordered beforehand and
asked either to purchase them or to return them, even at
no cost .
2 . These steps shall at least include a provision to the          2 . These steps shall at least include a provision to the
effect that if products or services have been so supplied          effect that if products or services have been so supplied
the consumer shall have the right to do as he pleases with        the consumer shall have the right without having to make
them unless there has been an obvious mistake, in which            any payment to do as he pleases with them unless there
case he shall merely hold them at the disposal of the             has been an obvious mistake; in the latter case he shall
supplier for a reasonable period and provided their                merely hold them at the disposal of the supplier for a
nature so permits .                                               reasonable period and provided the nature of the product
                                                                  or service so permits, and no inconvenience is caused to
                                                                   the consumer .
3.     Failure to reply shall not constitute consent.              3.     Unchanged .
4.    This Article shall not apply to the sending of              4.     This Article shall not apply to goods supplied free
samples or promotional gifts provided it is made clear            of charge, such as samples or promotional gifts provided
that they are completely free of charge with no obligation        it is made clear that they are completely free of charge
for the consumer .                                                with no obligation for the consumer.
                                                                  5.     If the supplier cannot supply exactly the same
                                                                  product or service as that specified , but instead supplies a
                                                                  product or service of the same quality and price, such
                                                                  action shall not constitute inertia selling within the
                                                                  meaning of this Article, provided that the consumer may
                                                                  return the substitute product if he is dissatisfied and that
                                                                  he is clearly informed in writing of his right to do so .
                          Article 9                                                         Article 10
                         Performance                                                       Performance
If no time limit for performance is stipulated in the             If no time limit for performance is stipulated in the
contract solicitation , the order shall be performed not          contract solicitation, performance must begin not more
more than 30 days after it is received by the supplier.           than 30 days after the order is received by the supplier .
                          Article 10                                                        Article 11
        Information on the content of the contract                         Information on the content of the contract
1.    Not later than at the time of delivery, the consumer         1.    Not later than at the time of delivery, the consumer
shall receive the following information in writing and in         shall receive at least the following information in writing
the language used in the contract solicitation :                  and in the language used in the contract solicitation:
— the identity of the supplier and the address of one of          — the information referred to in Article 6 ,
    his places of business,
— main features of the product or service ,                       — name and address of the supplier's most appropriate
                                                                       place of business for the consumer,
— price and quantity,                                             — payment arrangements, including credit terms, or
                                                                       terms for payment by instalments,
— payment arrangements, including credit terms , or               — arrangements for exercising the right of withdrawal
    terms for payment by instalments,                                  within the meaning of Article 12 ,
 ---pagebreak--- 15 . 11 . 93                              Official Journal of the European Communities                             No C 308/27
                INITIAL COMMISSION PROPOSAL                                              AMENDED PROPOSAL
 — right     of   withdrawal       within  the    meaning    of       — other contractual conditions such as those relating to
    Article 11 ,                                                         guarantees .
— arrangements for exercising this right.
Where a contract is open-ended , and in particular if it is         Where a contract is open-ended , and in particular if it is
to be performed by means of repeated operations, the                 to be performed by means of repeated operations, the
conditions under which it can be terminated must be                  conditions under which it can be rescinded must be
indicated .                                                          indicated .
2.     Paragraph 1 shall not apply to services supplied              2.    Paragraph 1 shall not apply to services supplied
directly by telematic means , precisely the performance of           directly by telematic means, precisely the performance of
which is effected by the use of means of communication              which is effected by the use of means of communication
at a distance, when they are supplied only on one                    at a distance, when they are supplied only on one
occasion . Nevertheless, the operator of a technique of              occasion . Nevertheless, the operator of a means of
communication shall be obliged to indicate to the                   communication shall be obliged to indicate to the
consumer, on demand, the location of the supplier .                 consumer, on demand, the location of the suppliers' most
                                                                     appropriate place of business for the consumer and the
                                                                     amount of the costs incurred by that service .
                            Article J 1                                                       Article 12
                     Right of withdrawal                                                Right of withdrawal
1.     For any contract negotiated at a distance, the                1.    For any contract negotiated at a distance, the
consumer shall have a period of not less than seven days            consumer shall have a period of not less than seven,
starting from the receipt of the product or service in              working days starting from the receipt of the product or
which he may cancel the contract without penalty. The               service in which he may cancel the contract and return
only costs payable shall be the direct return charges, if           the product in its original condition without penalty . The
appropriate .                                                       only costs payable shall be the direct return charges, if
                                                                    appropriate .
For services, this period shall begin when the consumer             In the exercise on this right, the period of seven working
receives documentation expressing the explicit agreement            days shall begin :
of the supplier.
                                                                    — for products , from the date of receipt by the
                                                                         consumer ,
                                                                    — for services, without prejudice to the provisions of
                                                                         paragraph 4 of this Article, when the consumer
                                                                         receives documentation informing him that the
                                                                         contract has been concluded .
                                                                    In the case of performance in stages, this period begins
                                                                    on receipt of the final instalment.
2.    The consumer must be able to provide a document               2.     Unchanged .
as evidence of return .
3 . Where a product or service is purchased on credit,              3.     Where a product or service is purchased on credit,
Member States shall provide for cancellation of credit              Member States shall provide for cancellation of credit
agreements concluded with the supplier when the right of            agreements concluded with the supplier when the right of
return is exercised; if the credit has not been provided            return is exercised , in the following cases :
directly by the supplier, Article 1 1 of Directive
87/102/EEC ( ! ) on consumer credit shall apply .
(') OJ No L 42 , 12 . 2 . 1987, p. 48
 ---pagebreak---  No C 308/28                           Official Journal of the European Communities                                 15 . 11 . 93
               INITIAL COMMISSION PROPOSAL                                            AMENDED PROPOSAL
                                                                  — where the credit has been provided directly by the
                                                                      supplier of the product or service,
                                                                 — where the credit has been provided by a lender, on
                                                                      the basis of prior agreement with the supplier of the
                                                                      product or service under which the moneylender has
                                                                      provided the credit to the supplier's client for the
                                                                      purposes of acquiring goods or services provided by
                                                                      the latter .
4.     The present Article shall not apply to:                   4.     The present Article shall not apply to:
— services, if an essential part of performance is begun          — services, if performance has begun before the end of
     or should have begun before the end of the seven day             the period of seven working days,
    period ,
— transactions concerning securities and other products          — transactions concerning securities and other products
    or services the price of which is dependent on                   or services the price of which is dependent on
    fluctuations in the financial market which cannot be              fluctuations in the financial market which cannot be
    controlled by the supplier,                                      controlled by the supplier,
— contracts concluded in the form of an authenticated            — contracts concluded in the form of an authenticated
    document,                                                        document,
— unless otherwise stipulated , to products :                    — made-to-measure products or clearly personalized
                                                                     products,
        which can be immediately reproduced ,
                                                                 — services with reservation as listed in Annex II,
     — for personal hygiene,
                                                                 — unless otherwise stipulated , to products:
     — which bv    w
                     reason of their   nature cannot     be
        returned .                                                   — which can be immediately reproduced,
                                                                      — for personal hygiene,
                                                                      — which by reason of their nature cannot be
                                                                          returned or are liable to deteriorate rapidly.
                                                                 5.     This Article shall be without prejudice to the
                                                                 consumer's customary rights, with particular regard to
                                                                 the receipt of defective products or services or products
                                                                 or services not corresponding to the description given in
                                                                 the offer for such products and services .
                         Article 12                                                        Article 13
                      Payment by card                                                  Payment by card
If the owner of a payment card questions the validity of         If the holder of a payment card questions the validity of
any operation in which the number of the card has been           any operation in which the number of the card has been
recorded without presentation or electronic identification       recorded without presentation or electronic identification
of the means of payment, the operation shall thereby be          of the means of payment, the operation shall thereby be
cancelled . The supplier's bank account shall then be            cancelled . The supplier's bank account shall then be
debited and the owner 's account shall be recredited as          debited and the holder's account shall be recredited as
quickly as possible, without prejudice to any claim for          quickly as possible, without prejudice to any claim for
damages in the event of an operation's being disputed            damages in the event of an operation 's being disputed
improperly.                                                      improperly.
 ---pagebreak--- 15 . 11 . 93                             Official Journal of the European Communities                              No C 308/29
                 INITIAL COMMISSION PROPOSAL                                             AMENDED PROPOSAL
                           Article 13                                                          Article 14
               Judicial or administrative redress                                 Judicial or administrative redress
1.     Member States shall ensure that adequate and                 1.     Unchanged .
effective means exist to enforce compliance with this
Directive in the interests of consumers and competitors .
2.     To this end , Member States shall make provision,            To this end , Member States shall make provision, among
among others, for trade and consumer organizations                  others, for trade and consumer organizations which can,
which can, according to their national legislation,                 according to their national legislation, demonstrate a
demonstrate a legitimate interest in the matter, to be              legitimate interest in the matter, to be entitled, if it is
entitled , if it is recognized by the Member State of the           recognized by the Member State of the conflict, to take
conflict, to take legal action and/or bring complaints              legal action and/or bring complaints before a competent
before a competent administrative body.                             administrative body in the company's state of origin, if
                                                                    this State allows actions of this kind .
3.     Member States shall, as necessary, empower the               3.     Member States shall, as necessary, empower the
courts and/or administrative authorities, in the event of           courts and/or administrative authorities, in the event of
litigation, to require the supplier to provide proof, in            litigation, to require the supplier to provide proof, in
particular of the content of the solicitation, the existence        particular of the content of the solicitation, the existence
of a prior request, the consumer's consent and                      of a prior request, the consumer's consent and
compliance with time limits .                                       compliance with time limits . They shall also empower
                                                                    them     to order   discontinuation   of  solicitation . This
                                                                    injunction may also be addressed to any operator of a
                                                                    means of communication at a distance .
4. This Directive shall not exclude voluntary                       4.     Unchanged .
supervision of compliance with its provisions by
self-regulatory bodies and recourse to such bodies by the
persons or organizations referred to in paragraph 2 , if
procedures involving such bodies exist in addition to the
court or administrative procedures referred to in this
Article .
                                                                                               Article IS
                                                                                             Information
                                                                   The Member States and the organizations concerned shall
                                                                   ensure that the consumer is informed of the provisions of
                                                                   this Directive and of the existence and content of codes
                                                                   of practice in this field .
                           Article 14                                                          Article 16
                         Binding nature                                                    Binding nature
The consumer may not waive the rights conferred on him              1.    The consumer may not waive the rights conferred
by this Directive .                                                on him by this Directive under national law.
                                                                   2.      Member States shall take the necessary measures to
                                                                   ensure that the consumer does not lose the protection
 ---pagebreak--- No C 308/30                             Official Journal of the European Communities                                15 . 11 . 93
                INITIAL COMMISSION PROPOSAL                                             AMENDED PROPOSAL
                                                                   granted by this Directive by virtue of the choice of the
                                                                   law of a non-Member country as the law applicable to
                                                                   the contract .
                          Article 15                                                         Article 17
                       Community rules                                                   Community rules
Nothing in this Directive shall preclude the application of        Nothing in this Directive shall preclude the application of
provisions specific to techniques, products or services           provisions specific to techniques, products or services
under other Community instruments .                                under other Community instruments .
                                                                  When a specific Community rule contains provisions that
                                                                   regulate only certain aspects of the marketing of products
                                                                   and services, it is these provisions which shall apply with
                                                                  respect to these aspects of marketing.
                                                                                             Article 18
                                                                                          Minimal clause
                                                                  Member States may introduce or maintain, within the
                                                                  domain covered by this Directive, more stringent
                                                                  provisions compatible with the Treaty, in order to secure
                                                                  a higher level of consumer protection .
                          Article 16                                                         Article 19
                       Implementation                                                     Implementation
Member States shall bring into force the laws, regulations        Unchanged .
and administrative provisions necessary to comply with
this Directive not later than 31 December 1994 .
When Member States adopt these measures , these shall
contain   a   reference   to  this  Directive  or   shall be
accompanied by such reference on the occasion of their
official publication . The procedure for such reference
shall be laid down by Member States .
                           <
Member States shall communicate to the Commission the
text of the provisions of national law which they adopt
in the field governed by this Directive .
                          Article 17                                                         Article 20
This Directive is addressed to the Member States-                 Unchanged .
 ---pagebreak--- 15 , 11 . 93                              Official Journal of the European Communities                                 No C 308/31
                 INITIAL COMMISSION PROPOSAL                                                AMENDED PROPOSAL
                             ANNEX I                                                             ANNEX I
                                                                              i
Examples of means of communication at a distance covered by          Examples of means of communication at a distance covered by
this Directive :                                                   . this Directive :
— unaddressed printed matter,                                        — unaddressed printed matter,
—- addressed printed matter,                                         — addressed printed matter,
— standard letter,                                                   — standard letter,
— press advertising with order form ,                                — press advertising with order form
— catalogue,                                                         — catalogue with order form ,
— telephone with human intervention,                                 — small advertisements ,
— telephone without human intervention ( automatic calling           — telephone with human intervention,
    machine , audiotext ),
                                                                     — telephone without human intervention (automatic calling
— radio,                                                                 machine , audiotext ),
— videophone (telephone with screen ),                               — radio,
— videotext ( microcomputer       and  television  screen,  with     — videophone (telephone with screen ),
    keyboard or touch screen ),
                                                                     — videotext ( microcomputer       and  television  screen,   with
— electronic mail ,                                                      keyboard or touch screen ),
— fax ( facsimile machine ),                                         — electronic mail ,
— television (tele-shopping).                                        — facsimile machine ( fax ),
                                                                     — television ( tele-shopping),
                                                                     — video cassettes .
                           ANNEX II                                                             ANNEX II
Services with reservation within the meaning of Article 3 :          Services with reservation within the meaning of Article 12 :
— transport,                                                         — transport ,
— accommodation ,                                                    — accommodation ,
— catering,                                                          — catering,
— entertainment .                                                    — entertainment .