CELEX: 51977PC0404
Language: en
Date: 1977-07-29
Title: Proposal for a Directive on the protection of participants in home study courses (submitted to the Council by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (77) 404
Vol. 1977/0133
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 ---pagebreak---   COMMISSION OF THE EUROPEAN COMMUNITIES
                                                       COM(77)404 final.
                                                       Bras BE 1 B , 29 July 1977
                      Proposal for a Directive
                                                   /
                   on the protection of participants
                          in home study courses
                  ( submitted to the Council "by the Commission)
C0M(77) 404 final
 ---pagebreak---    Explanatory Memorandum
   I.  Introduction and General Comments cn the Directive
   Home study courses are a type of instruction which , in a particular way,
  meets the needs of persons wishing to undertake a course of instruction
   or vocational training.
  This type of education is not confined to a particular place ; furthermore ,
  the student can organize his studies to suit his circumstances and his
  individual capabilities , and use the time at his disposal as profitably
  as possible#
  The student or adult who wishes to follow a correspondence course
  offered by a private organizer is generally in need of special protection ,
  since the distance between student and teacher makes it extremely diffioult
  to check the teaching material and the professional and teaching
 qualifications of the teaching staff.
 Because teaching material is usually sent to the students in instalments ,
 the student is unable to make an overall appraisal of the course ; hence
 he cannot assess his chances of successfully completing the course
 before concluding the contract . In many cases the student is persuaded
by advertising , by oral statements , by the supply of seme teaching
material or by other means to conclude a contract for a correspondence
 course which does not match his level of knowledge or his capabilities.
As a result the student wastes his time , money and energies which may
discourage him from taking a course or from undertaking a form of
training.                                                               •    .
The large number of people who have expressed reservations about
correspondence courses would be less critical of them if organizers of
home study courses were approved by a public authority , and the contracts
drafted in such a way as to ensure adequate protection for students .
These two conditions are particularly important when the organizer of a
correspondence course and the participant live in different Member States .
 ---pagebreak--- The Preliminary programme of the European Economic Community for a
consumer protection and information policy adopted "by the Council of
Ministers on 14 April 1975 provides for measures to inform and educate    \
consumers and to proteot their legal and economic interests .  In its
Resolution of 17 February 1975 Parliament requested that a Directive "be
drawn up on hone study courses on the "basis of the following principles :
1*   6fficial inspection of all courses which must receive a State
     certificate of quality ;
2.   appropriate training and qualifications for teaohing staff ;
3.   prohibition of the use of sales representatives ;
4 * protection of students ( especially as regards contractual conditions ).
II .  Legislation in the Member States and the legal basis of the Directive
Home study courses are subjeot to special laws in five Member States .
The aim of these laws is to ensure that home study courses are so
organized as to ensure that the courses offered are of a high quality
and to determine the features of the contractual relationship between
organizer and participant to ensure adequate protection for the latter.
It is hoped in this way to prevent abuses and to encourage people to
take part in home study courses without having to fear that the
organizers might not be genuine or qualified or might even be dishonest .
All correspondence courses are monitored in France ( declarations have
to be made by private organizations- wishing to provide home study
courses and the teaching content of courses are checked );  in the
Federal Republic of Germany ( courses must bo approved ).
Hone study courses provided by private organizers are of some economic
significance in the Member States .  Differing national laws and in
particular the various methods used to check organizers of home study
 ---pagebreak---  courses may impede free competition between tho various organizers of
 home study courses .
 The degree of consumer protection also differs from one Member State
 to another . These differences are "becoming even more marked as an
increasing number of participants in correspondence courses come from
Member States different ^frcan those in which the organizers are based.
The different laws hence have a direct effect on the functioning of the
common market and should be harmonized pursuant to Article 100 of the
Treaty.
Since this Directive would involve the amendment of legislation in
several Member States , Parliament and the Economic and Social Committee
must be consulted ( second paragraph of Article 100 of the Treaty ).
III .  Comments on the Articles
Article 1 defines the scope of the Directive .    The first paragraph
states that only home study courses for which a legal contract has
been concluded are covered by the Directive .    There is no reason to
exclude from the scope of the Directive instruction provided by the
State or regional or local authorities if such instruction is given on
the basis of a contract concluded between the organizer and student .
However , only home study courses against payment are envisaged here .
A student following a correspondence course for which he has not paid
may of course waste his time and energies if the quality of the course
does not match his requirements .   It was not , however , considered
necessary to include " free" courses in the scope of this Directive .
The Member States may , pursuant to Article 16 , make these courses
subject to the provisions of the Directive if they so wish.
The definitions given in the second paragraph have been made extremely
broad in an attempt to cover all types of home study course as far
as possible .               :
 ---pagebreak---  Article 2 introduces the principle of a system of accreditation for orga­
 nizers of correspondence courses *      A system of prior approval would appear
 in principle necessary if an effective check is to be made* on the organizers
 However , in order to take into account the legal situation in some Member
 States , which forbids any restriction of freedom in education , Member States
 shall retain the possibility of introducing only an optional system of
 accreditation*   To avoid an organizer , who has not been accredited , offer­
 ing home study courses in a country with a compulsory system of accredi­
 tation , Article 3(2 ) allows Ifember States to forbid or*to restrict within
 their territoiy any activity of a non-accredited organizer *
 The conditions for accreditation wi?l be decided by the Member States#
 The information which must be provided is intended to enable the responsible
bodies to make a check on the organizer and his staff and to assess the
quality of the courses#
Articles 3 and 4 contain provisions concerning the granting and withdrawal
 of accreditation#   Since accreditation must be renewed after three years ,
the responsible body is automatically obliged to check whether the condi­
tions of accreditation are still being fulfilled.
Articles 5 and 6 sire concerned with protecting students against various
commercial practices which , in the past , have often led to abuse .
Visits to the homo of students have not been totally forbidden because it
is extremely difficult to make a distinction between a visit by an educa­
tional adviser and by a salesman®      However , the Article does impose a total
ban on any unsolicited visits , stating that a written request must be made
by the student for such a visit#
The penalties for non-compliance with the provisions of this Article are
set forth in Article 8(4)#             ;
Article 6 is intended to put a stop to certain practices of promising
financial rewards for advertising purposes#
Article 7 contains provisions on. advertising#      Since contacts between
student and organizer are mainly by' correspondence , it is vital that
the student should receive detailed information about the organizer
and about the oourses which are proposed to him#       This is why it is
laid down that advertising material must contain the specific information
listed*
Incidentally , the Commission intends to present shortly to the Council
a proposal for a Directive on misleading advertising#
 ---pagebreak---  Article 8 lays down the principle that the contract "between the
 organizer and student must be drawn up in writing. This is justified
 in view of the fact that the contract is often the only written
 document committing the organizer to the contract and returned to the
 student ; he can find details of his rights and obligations vis-a-vis
 the organizer in this document ( advertising does not have to be sent
 to the student ). The written contract must therefore fix the main
 features of the relationship between student and organizer.
Article 8(4 ) describes the consequences of concluding a contract
without observing the provisions of Article 5 » without drawing it up in
writing or signing it . The consequences of non-compliance with these
provisions must be severe to prevent any attempt to get round them.
The most effective way of ensuring that these obligations are fulfilled
will be to render the contract invalid if they are not met .
The provision prohibiting prior payment of the total contractual price
contained in Article 9 is intended to prevent the student being faced
with a fait accompli when he wishes , for instance , to exercise his
right to terminate the contract t since it is often extremely difficult
to obtain reimbursement .
Article 10 gives the student the right to terminate the contract within
seven days from the date of receipt of the first teaching materials .
It is only when the student has received some useful information that
he can objectively decide whether the correspondence course matches his
level of knowledge or his capabilities . The Member States may , pursuant
to Article 16 , extend this period if they wish*
Article 11 contains rules governing the termination of the contract . It
seems essential to grant tha student the right' to, terminate the ' contract
in special circumstances in addition to similar rights which the student
may enjoy under national legislation. Proper reasons must be adduced as
proof of such circumstances to prevent any abuse.
However , no notice need be served in order to terminate the oontract .
 ---pagebreak---  Article 12 is concerned, with removing certain contractual clauses
 which might he particularly unfair to the student , especially those
 requiring him to pay any amount to the organizer as damages .
 Article 1 3 is intended to safeguard the rights of the student where a
 third party requires him to pay outstanding debte under the contract he
 ooncluded with the organizer#
Art j ol e 14 is intended to limit the freedom of contract of tho parties
 in respect of the provisions of this Directive .   Students will only
"be afforded effective protection if the provisions of the Directive
 are of a mandatory nature .
 The aim of Article 15 is to exclude contrasts for home study courses
 from the scope of the provisions of the Directive on contracts
 negotiated away from "business premises .
 The two main objectives of this latter Directive ( contract to be in
 writing and granting of a period of reflection to the consumer ) are
 contained in Articles 8 and 10 of this Directive .
 Legislation on consumer credit , however , often contains more detailed
 articles to protect tho consumer . It is therefore essential that
 these provisions are not affeoted by those adopted pursuant to this
 Directive .
  Article 16 states that the Member States may adopt or maintain other
  provisions which afford greater protection to students .
 ---pagebreak---      COMMISSION
       OP THE
EUROPEAN COMMUNITIES
                                   Directive
                    on the protection of participants
                          in home study courses
                          \
 ---pagebreak---    THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
  Having regard to -the Treaty establishing the European Eoonomio Community ,
  and in particular Article 100 thereof ,
  Having regard to the proposal from the Commission,
  Having regard to the Opinion of the European Parliament ,
  Having regard to the Opinion of the Economic and Social Committee ,
  Whereas home study courses are a widely used method of instruction in the
  Member States and are already the subject of national legislation;
  Whereas this method of instruction is required to play an important role
  in instruction and vocational training ; whereas it is a particularly
  suitable form of contact between instructors and students located in
  different Member States 5
  Whereas any disparity between the legislation in the different Member
  States may have a direct effect on the functioning of the common market ;
  whereas it is therefore necessary to harmonize legislation in this field ;
. Whereas the Preliminary programme of the European Economio Community for
                                               1
  a consumer protection and information policy provides for measures to
  promote the education and information of consumers and to protect their
  legal and economic interests ;
  Whereas the prime aim of this Directive is to afford the student adequate
  protection in his dealings with the person offering home study courses ;
  Whereas effective protection' of students nay be • facilitated by a system of
  coapulBory accreditation of persons wishing "to offer hone study courses ;
  whereas Member States must however retain the possibility of providing for
  a system of optional accreditation ;
  10J No C 92 , 25.4.1975.
 ---pagebreak--- Whereas it is essential ^fchat certain commercial practices such as
unsolicited canvassing , the promotion of courses and advertising should
be subject to specific rules ;
Whereas students are afforded greater protection if contracts in respect
of participation in a home study course are drawn up in writing and contain
certain essential provisions ;
Whereas the student should have the right to withdraw from his commitment to
follow a course within seven days from the 'date of receipt of the fifret teaohing
materials ; whereas the student should be given other opportunities to
terminate a contract into which he has entered ;
Whereas it appears necessary to introduce other provisions such as those
prohibiting certain clauses in contracts or derogation from the provisions
adopted under this Directive ;        '
HAS ADOPTED THIS DIRECTIVE : '
 ---pagebreak---                                                - 3 -
                                              Article 1
    1.      This Directive shall apply to home study courses against payment for
  which a contract has "been concluded .
  2.        For the purposes of this Directive :
    (a) "home study courses " means a form of instruction or training where the
            organizer and student are usually located in separate places and where
            the contracts "between students and organizers are entirely or primarily
            maintained through a regular exchange of printed , written , audio , visual
            or audiovisual material or other means of communication ;
   (b) "course" means home study course pursued "by correspondence and consisting
          - of a series of lessons presented collectively , including lessons
            consisting of several parts which are coordinated , arranged or packaged
^           to form a curriculum or programme of instruction or training and which
            may "be issued separately ;
   ( c) " organizer" means an establishment or natural or legal person offering
            instruction or training in the form of home study courses ;
   (d) " student " means any person who follows or wishes to follow a course .
                                              Article 2
  1.        Each Member State shall ensure that an organizer who .wishes to offer home
     j .. study courses : a ) riuist be accredited for this purpose or
                             b ) has the option of being accredited for this purpose ^
    £u       Eacih Member State         •. shall designate a body to grant such
 accreditation and shall lay down the conditions for accreditation .
    Applications fc>r accreditation shall include the following information .-:
  ( a) the name , address , financial standing and legal position of the
  '         applicant :           ;
 ---pagebreak---         (b ) the entry requirements , curriculum , oontent and purpose of the
              courses ;
        (c ) full details of the professional and teaching qualifications of the
              director of studies , the course directors , the other teaching staff ,
              the course writers and the teaching methods used or to "be used.
                                         Article 3
  1 * Each Member State shall take steps to ensure that :
       (a) the responsible body referred to in Article 2(2$ grants accreditation
             to any applicant who fulfils the conditions laid down ;
       (b ) accreditation is granted for a period of three years and shall be
             renewable ;
       ( o ) each accredited organizer shall receive from the responsible body
             referred to Article 2(2 ), a distinctive mark or a symbol certifying
             the accreditation of which he may make mention in his correspondence ,
             publications and advertising#
 2# Member States may forbid or restrict , within their territory , any
      activity of an organizer who has not received the accreditation under
      Article 2 *
                                         Article 4
 1# Each Member State shall empower the responsible body referred to in
      Article 2(2 ) to withdraw the accreditation when the conditions laid
      down for accreditation are either no-t; fulfilled or are so no longer#
 2 . The organizer shall ho required to inform the responsible body of any
   • change in the details listed in Article 2(2 ) during the period of vali­
      dity of the accreditation which might influence the decision in respect
      of accreditation#
                                        Article 5
The Member States shall adopt provisions forbidding any visit the purpose
of which is to advertise , give advice or even conclude a contract in, respect
of participation in a course , unless the person visited has previously been
sent publicity on home study courses offered by the organizer , has received
teaching material relating to a course or an actual course , or has request­
ed such a visit in writing#
 ---pagebreak---                                       - 5 -
                                     Article 6
 1.   The Membei* States shall forbid organizers to offer or promise
financial rewards as an inducement to recruitment to a course .
2.    A free demonstration lesson shall not be considered as a financial
reward within the meaning of the preceding paragraph .
3.    The organizer may award a scholarship or special prize in recognition
of a meritorious performance by a student in an organized examination.
                                     Article 7
The Member States shall take the requisite measures to ensure that
1.    the advertisements , notices and publicity material relating to the
activities of the organizer or the courses do not contain any misleading
information or statements ;
2.    the publicity material contains full details of :
( a) the enrolment system , the initial standard required , the nature and
      average length of the courses and the principal openings to which they
      lead ;
( b) any accreditation awarded by the body referred to in Article 2(2 );
( c) the course(s ) proposed. with information on the most recent updating ;
(d) the nature of the diplomas or certificates of instruction or training
      awarded and the recognition they may have received ;
( e ) the size and location of the establishment and the number and teaching
  *   qualifications of its staff .          ' " •                       '
 ---pagebreak---                                      Article 8
  1.   The Member States shall take steps to ensure that contracts in respect
  of participation in a course concluded between the organizer and student
 are drawn up in writing .
                                                                                 I
 2.   The contract shall contain such terms as are essentia], to the
 agreement , including the following specific information :
 (a) the names and addresses of the contracting parties ;
                                         r
 ( b) the name , purpose and description of the course ;
 ( c) the normal length of the course ;
 ( d) the total cost of the course , the costs of books , equipment or material
    . being shown separately .
      Where the contractual price is paid in instalments , by a method of
      payment chosen by the organizer or arranged by him , the total cost of
      the course must be shown , together with all interest and incidental
      costs ;
 ( e) a statement specifying whether the teaching material sent to the
      student becomes his property or is merely loaned to him ; ■       V
 ( f) the substance of the provisions of Articles 10 and 11 of this
      Directive ;
 ( g) the information listed in paragraphs ( b), ( c) and ( d) of Article 7(2 ).
 3.   Each contracting party shall date and sign the contract and shall ,
receive a copy signed and dated by the other party .
4»    The Member States shall take steps to ensure that a contract in respect
of participation in a course which has . been concluded without observing
the provisions of Article 5 and 8{l ) or which has not been signed by the
contracting parties shall be invalid .           ,
                                 ■   Article 9
The organizer may not require the student to pay in advance a sum greater
than the fees corresponding to three months of the course , which sum shall ,
however , not exceed 2jfo of the total cost of the course .
                          A
 ---pagebreak---                                    Article 10
  1.  The Member States shall introduce rules providing that the student i3
- entitled to terminate the contract within seven days from the date of
 receipt of the first teaching materials after the contract has been signed
 and returned .
 2.   In case of dispute about the receipt and date of the first materials
 sent the "burden of proof shall lie with the organizer .
  3.  If the student terminates the contract before the expiry of the date
 laid down in the first paragraph , he shall be obliged to return the
 materials received .   The organizer must reimburse all payments made .
                                   Article 11
 1.   The Member States shall take steps to ensure that the student may
terminate the contract - provided that he supplies proof - if special
 circumstances , such as serious illness or unemployment , prevent him from
participating in the course .    In such a cr.se no payment shall be required
beyond those which had already fallen due .
 2.   After the expiration of six months the student may. terminate the 1
 contract at any time , without giving any reason , provided that notice is
 given .  The period of notice shall be laid down by the Member States and
 shall not exceed three months .   The mutual rights and obligations deriving
 from the contract shall cease on the expiry of the period- of notice .   The
 sums paid by the student for any period following the termination of the
 contract shall be reimbursed .
                                                            • *
 3.   The student shall not be- recjuired to provide security or to cover his
 obligations by talcing out a bank loan , insurance policy or any similar
 contract .
                                   Article 12
 The Member States shall forbid the following clauses in a contract in . .
 respect of participation in a courses
  (a) penalty clauses :
 ---pagebreak---   (b) the payment of lump-sum damages ;
  ( o) exclusion or limitation of claims for damages .
                                   Article 13
 The Member States shall take steps to ensure that where the organizer
 assigns all or some of his rights to a third person , the student . shall
 have the same rights and remedies against this third party as he had
 against the organizer'.
                                   Article 14 ■  .
                       «                                    s         .   .
                    »                              ,
 The Member States shall forbid any derogation by mutual agreement between
 student and organizer from the provisions adopted in implementation of
this Directive .
                                                         \
                                 , Article 15
 1.    The provisions of the Council Directive of          to protect the
 consumer in respect of contracts which have been negotiated away from
business premises shall not apply to contracts concluded between the
 organizer and student .
 2.   The provisions of this Directive shall not preclude the application
 of provisions concerning hire purchase or consumer credit .
                                   Article 16
The, Member States may adopt more favourable provisions than those      . - -
provided in thin Directive to ensure better protection of students , in r
particular by emending the period laid down in Article 10 .
                                   Article 17
1.    The Member States shall take the measures necessary to comply with this
Directive within a period of eighteen months from the date of its
notification and shall forthwith inform- the Commission thereof .
2.    The Member States shall send to the Commission the text of the main
provisions of national law which they adopt in the field covered by this
Directive .
 ---pagebreak---                                 Article 18
This Directive is addressed to the Member States .