CELEX: 51996PC0036
Language: en
Date: 1996-02-07
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on the protection of consumers in respect of distance contracts

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                                               Brussels, 07.02 1996
                                              COM(96)36 final COD 411
                             COMMISSION OPINION
                 pursuant to Article 189b(2)(d) of the EC Treaty on
      the European Parliament's amendments to the Council's common
                              position concerning the
                                    proposal for a
            EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
          on the protection of consumers in respect of distance contracts
                  AMENDING THE COMMISSION PROPOSAL
                    pursuant to Article 189a(2) of the EC Treaty
 ---pagebreak---  ---pagebreak--- I.       BACKGROUND (CO-DECISION PROCEDURE)
         On 7 April 1992 the Commission presented a proposal for a Directive and adopted
         a recommendation concerning the protection of consumers in respect of contracts
         negotiated at a distance (COM(92) 11 of 20.5.92 - SYN 411) OJ No C 156,
         23.6.92.
         The proposal was transmitted to the Council on 9.6.92 and to the Parliament by
         Council on 17.6.92.
         Opinion of the Economic and Social Committee: 24.11.92
         Opinion of Parliament at first reading - 26.0.93. Parliament adopted 35
         amendments. The Commission accepted 30 of them and integrated them into its
         amended proposal.
         Amended proposal: COM(93) 396 of 7.10.93. OJ No C 308, 15.11.93
         Adoption of the common position: 29.6.95. OJ No C 288, 30.10.95
         Commission opinion on the common position: 7.7.95 (Document SEC (95) 1158
         COD 411)
         Parliament vote, second reading: 13.12.95
         31 amendments adopted.
 II.     SUBJECT O F THE PROPOSAL
With the development of new technologies (television, fax, minitel) traditional "mail order
 selling" has become "distance selling". The directive provides a legal framework for all
these selling techniques.
 The proposal is a framework directive covering products, services and all distance
 communication techniques. It is accompanied by a recommendation (ref 92/295/EEC)
 urging professionals to satisfy the minimum requirements of the directive in the form of
 codes of practice.
 Ill     COMMISSION OPINION ON THE EUROPEAN PARLIAMENT'S AMENDMENTS
 Amendments accepted by the Commission
 The Commission can accept 21 of the 31 amendments adopted by Parliament. The
 numbering used is that of Parliament's final document (EP 165 649). The amendments
 that are not mentioned (6, 7, 17, 18, etc.) are those rejected by Parliament.
 Amendment No 1 (recital 12)
 ---pagebreak---  This amendment contains three different ideas:
         The use of the right of withdrawal should be free of charge for consumers. This
         part of the recital corresponds to Parliament's amendment 15.
         Hence the Commission proposes maintaining the first part of this amendment.
         The consumer's customary rights concerning defective products. This part of the
         recital corresponds to amendment 21. The Commission does not accept
         amendment 21 (see explanation below) and hence has not accepted this part of the
         recital.
         Method of calculating the periods. The point of such harmonisation is debatable.
         Hence the Commission does not accept this third part of the amendment.
Amendment No 3 (new recital)
This recital introduces amendment 35.
Amendment No 4 (new recital)
This recital introduces amendment 36.
Amendment No 5 (Article 2.1)
This amendment introduces an important detail concerning the scope of the directive: the
directive's provisions apply to the overall contract and not to the successive operations
deriving from it.
The Commission accepts this amendment in a slightly different wording than the one in
the amended proposal.
Additional comment concerning this article: the definitions of supplier are different in the
English and French texts (reference to commercial capacity in the English version).
Amendment No 8 (Article 3.1. fourth indent)
 This amendment abolishes the exemption provided for in the common position. Thus it
reintroduces contracts concerning immovable property into the scope of the Directive.
Amendment No 9 (Article 3.2)
Parliament amended the introductory part of Article 3(2) (Articles 4 and 7.2). The idea
of this amendment is that the particulars provided for in Article 4 should also be given
to consumers in the case of tourist services. The Commission supports this idea. This is
why a new Article 3.3 has been introduced which covers tourist services. To show clearly
that there is no cooling - off period in this domain, subsection 4.1.f has also been
amended.
However the Article's wording also concerns the other exemption contained in this
paragraph, i.e. supplies delivered by regular roundsmen. The Commission considers that
it is not possible to lay down the information requirements contained in Article 4 for this
very specific form of distribution.
As regards supplies by regular roundsmen, it is proposed that the text of the common
position be simplified and that the exact wording of the Directive on contracts away from
business premises be used.
 ---pagebreak--- Amendment No 12 (Article 4.1.i)
 This amendment provides for consumer information in regard to long-term contracts The
Commission accepts the amendment, but in the wording already contained in Article 5
of the common position.
Amendment No 13 (Article 5.1)
The consumer must receive "written confirmation" of the various particulars required for
the proper performance of the contract. The discussions on this point show that the term
"written" is not always interpreted in the same way: if a document is provided by
electronic mail and stored in the memory of the consumer's PC, is this a written
document 9 On the other hand, if this information appears on the computer screen but is
not stored in memory (as is the case with the French minitel) the consumer does not have
this information permanently at his disposal.
In order to eliminate this ambiguity between "written" and "paper medium", the
Commission proposes inserting the notion of "durable medium" not at the end of the
paragraph 1 but in the body of this paragraph.
Amendments 15, 16, 41 and 42 (Article 6.1, 6.2, 7 2)
 These amendments provide that the consumer shall be granted a cooling off period of
seven days calculated as working days, that he may not charged supplementary costs and
that in the case of advance payments, reimbursement should be made within 30 days.
Amendment No 37 (Article 6.3 - second indent)
This amendment is a rewording of the text of the common positions.
Amendment No 24 (Article 7.3)
This amendment introduces the idea of the consumer's prior consent before receiving a
substitute product. This notion of substitute product (a product which is slightly different
to one ordered) is controversial.
Amendment No 29 (Article 10.2)
 This amendment simplifies the text of the common position by removing the reference
to "individual communications". This notion is too vague to be operative. Is a mailshot
in a few million copies or a telephone call made at random an individual communication 9
Amendments No 30 (Article 11.2) and 31 (Article 11.3a)
These amendments render mandatory the provisions of these two Articles: actions brought
by consumer organisations at national level and the burden of proof.
 Amendment No 32 (Article 13)
 This amendment simplifies the common position's provision by removing a long list
 which would inevitably generate practical problems of application. It is wiser to stick to
 general principles.
 Amendment No 33 (Article 15.1)
 ---pagebreak--- The amendment proposes reducing the time limit for transposition to two years. Since the
Commission's proposal was published in 1992, six years will have elapsed (mid-1998)
between publication of the proposal and its transposition.
Amendment No 35 (Article 15a)
The idea behind this amendment is to stipulate the provision of information on existing
codes of practice in the domain of distance selling contracts. This amendment was already
presented at the first reading and taken up by the Commission in its amended proposal.
It was not accepted by Council, notably because of the wording. The Commission accepts
this amendment but with a different wording, in order to clarify the distribution of roles
in the dissemination of the information.
Amendment No 36 (Article 15b)
 This amendment is designed to establish out-of-court systems for dispute resolution by
trade and professional associations. The Commission accepts the amendment but in a
different wording (it is not possible to prescribe that the "Member State shall draw up a
complaints system on a self-regulatory basis.")
Amendments rejected by the Commission
        Amendment No 2 (recital 16)
        This amendment states that codes of practice are of major importance in the
        interests of consumer protection. This grandiloquent wording adds nothing to the
        substance of the text of the recital, which defines the relationship between the
        Directive and the Recommendation.
        Amendment No 10 (Article 4.1a)
        This amendment proposes adding the supplier's address to the list of particulars
        which must be communicated to the consumer before conclusion of the contract.
        The Commission had already rejected this amendment at the first reading. This
        requirement is very impracticable for certain technologies and, moreover, is not
        essential for consumers. When the consumer orders a product via his PC (using
        email) does he have to know the precise address of the supplier?
        Amendment No 11 (Article 4.2)
        This amendment is designed to protect persons who are legally unable to give
        their consent. This provision is part of Belgian law and was proposed by
        Parliament at first reading. The Commission accepted this amendment in its
        amended proposal. However, Council's work showed that this provision touched
        an important aspect of civil law in the Member States: the capacity to conclude
        a contract. In application of the subsidiarity principle, the Commission considers
        that this matter should be left to each Member State.
        Amendment No 14 (Article 5.1 - second indent)
        The purpose of Article 5.1, indent two, is to inform the consumer of the supplier's
         place of business to which the consumer may address any complaints. This is one
         item of information which the supplier must provide to the consumer. The
 ---pagebreak--- amendment simply indicates that this place of business must be the "most
appropriate". This wording adds nothing to the article's substance and the text of
the common position is clearer.
Amendment No 19 (Article 6.3 - fourth indent)
This article provides that there shall be no cooling off period for audio or video
recordings, disks or computer software. The amendment proposes adding CD-
ROMs and CD-Is. The amendment is unacceptable for at least two reasons:
         CD-Is and CD-ROMs are compact computer disks and are therefore
         covered by the generic definition provided by the article
         if CD-Js or CD-Ks are invented tomorrow, they will not be covered by
         this exemption.
Amendment No 20 (Article 6.3 - fifth indent)
This amendment proposes that the cooling off period shall not apply to books
taken out of their original wrapping. It seems that book selling systems (book
clubs) already allow the consumer to have a look. Hence accepting this
amendment would be a step backward by comparison with existing trade
practices.
 Amendment No 21 (Article 6a new)
 The purpose of the amendment is to explain that the cooling off period applies
 without prejudice to the consumer's statutory rights if the product is defective or
 damaged. This amendment was adopted by Parliament at first reading and
 accepted by the Commission in its amended proposal. However the Commission
 does not propose taking it up again. This is because Council's work showed that
 this point does not concern distance contracts specifically but, rather, general rules
governing the guarantee and/or after-sales services. The Council will be examining
this subject in the context of the follow-up to the Green Paper on guarantees.
 Hence it would not be wise to address this issue at this stage.
 Amendment No 25 (Article 7a new)
 This amendment indicates that the Member States must observe the provisions of
 Directive 89/552/EEC (television without frontiers). This adds nothing to the
 substance, since Member States are bound by all other directives as a matter of
 course.
 Amendment No 40 (Article 10.1)
 This amendment concerns telephone calls. It stipulates that the professional must
 provide his identity and his objectives at the beginning of the telephone
 conversation.
 By adopting this amendment, Parliament clearly indicated that it was in favour of
 an opt-out system (as regards telephone solicitations).
 ---pagebreak--- The Commission considers that it is pointless to add this amendment to the
common position:
       Article 4.2 already states:
       "The information referred to in paragraph 1, the commercial         purpose of
       which must be made clear, shall be provided in a                    clear and
       comprehensible manner in any way appropriate to the                  means of
       communication at a distance used ..."
       This means that in the case of telephone calls the caller must     indicate his
        identity (Article 4(1 )(a)) and the reasons for his call (Article 4(2)).
        Article 10.2 also states that telephones can only be used provided there is
        no clear objection from the consumer.
        The wording of this amendment (use of the term "prior consent") would
        only make it more difficult to understand the directive's other provisions.
Amendment No 34 (Article 15(4))
The amendment proposes that the Commission submit a report two years after the
date of transposition. The Commission considers that this time limit is too short
and that it would be preferable to abide by the more traditional period of three
years.
 ---pagebreak---                    Amended proposal for a
 EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
on the protection of consumers in respect of distance contracts
  (PRESENTED BY THE COMMISSION PURSUANT TO
          ARTICLE 189a(2) OF THE EC TREATY)
 ---pagebreak--- Council common position                   Second amended         proposal   for  the
                                          Commission
Recital 12                                Recital 12
12. Whereas the consumer is not able in   12. Whereas the consumer is not able in
concrete terms to see the product or      concrete terms to see the product or
ascertain the service provided before     ascertain the service provided before
concluding     the    contract:   whereas concluding the contract; whereas the
provision should be made, where it is     consumer should be offered             the
appropriate, for a right to withdraw from possibility of cancelling the contract
the contracts, whereas it is for the      after returning the product or service;
Member States to determine the other      whereas if this right is to be more than
conditions and arrangements following     formal the costs borne by the consumer
exercise of the right of withdrawal;      when exercising it must be limited to the
                                          charges for return;
                                          Recital 16 a (new)
                                           16 a. Whereas it is important, in the
                                          interests of optimum protection of
                                          consumers, that they be informed in a
                                          satisfactory manner about the provisions
                                          of this Directive and about the existence
                                          and content of codes of practice in this
                                          domain;
                                           Recital 17a (new)
                                           / 7a. Whereas it is important, in order to
                                           ensure that consumers are protected, to
                                           establish an efficient system for handling
                                           cross-border complaints;
 ---pagebreak--- Article 2. point 1                            Article 2. point 1
1) "distance contract" means any contract     1) "distance contract" means any contract
concerning goods or services concluded        concerning goods or services concluded
between a supplier and a consumer as a        between a supplier and a consumer as a
consequence of an organised distance          consequence of an organised distance
sales or service-provision scheme of the      sales or service-provision scheme of the
supplier, using, for this contract,           supplier, using, for this contract,
exclusively one or more means of              exclusively one or more means of
communication at a distance up to the         communication at a distance up to the
conclusion of the contract and including      conclusion of the contract and including
the conclusion on the contract itself;        the conclusion on the contract itself;
                                              where a contract has to be fulfilled by
                                              successive acts of performance or a
                                              series of separate operations over a
                                              period of lime the provisions of this
                                              Directive shall apply only to the overall
                                              contract, when this has been negotiated
                                              at a distance.
Article 3( I )(fourth indent)                 Article 3(1)(fourth indent)
concluded for the construction and sale
of immobile property or relating to other
immobile property rights, except for          Deleted
rental.
Article 3(2)                                  Article 3(2) and (3)
2. Articles 4, 5 and 6 and Article 7(1)       2. Articles 4, 5, and 6 and Article 7(1)
and 2 shall not apply:                        shall not apply:
        to contracts for the supply of                to contracts for the supply of
        foodstuffs, beverages or other                foodstuffs, beverages or other
        goods intended for current                    goods intended for current
        consumption supplied to the                   consumption supplied by regular
        home of the consumer, to his                  roundsmen.
        residence or to his workplace by
        regular roundsmen.                    3.      Articles 5, 6 and Article 7(1)
                                              shall not apply to:
        contracts for the provision of
        services     with     respect   to            contracts for the provision of
        accommodation,          transport,            services    with    respect    to
        catering or leisure, where the                accommodation,        transport,
        supplier undertakes, when the                 catering or leisure, where the
                                           10
 ---pagebreak---         contract is concluded, to provide              supplier undertakes, when the
        these services at a specific date              contract is concluded, to provide
        or within a specific period.                   these services at a specific date
                                                       or within a specific period.
Article 4(1)                                   Article 4(1)
1. In good time prior to the conclusion        1. In good time prior to the conclusion
of any distance contract, the consumer         of any distance contract, the consumer
shall be provided with the following           shall be provided with the following
information:                                   information:
a)      the identity of the supplier;          a)      the identity of the supplier;
b)      the main characteristics of the        b)      the main characteristics of the
        goods or services                              goods or services
c)      the price of the goods or services     c)      the price of the goods or services
        including all taxes;                           including all taxes;
d)      delivery costs, where appropriate;     d)      delivery costs, where appropriate;
e)      the arrangements for payment,          e)      the arrangements for payment,
        delivery or performance;                       delivery or performance;
f)      the existence of a right of            f)      the existence of a right of
        withdrawal, except in the cases                withdrawal, except in the cases
        referred to in Article 6(3);                   referred to in Article 3(3) and
g)      the cost of using the means of                 Article 6(3);
        communication at a distance            g)      the cost of using the means of
        where it is calculated at other                communication at a distance
        than the basic rate;                           where it is calculated at other
h)      the period for which the offer or              than the basic rate;
        the price remains valid.               h)      the period for which the offer or
                                                       the price remains valid
                                               i)      the conditions under which the
                                                       contract may be annulled when it
                                                       is one of indefinite duration or of
                                                      a duration of more than one
                                                      year.
                                           1.1
 ---pagebreak--- Article 5(1) first sentence                    Article 5(1) first sentence
 1 The consumer must receive written           1. The consumer must receive written
confirmation of the information referred       confirmation or confirmation in another
to in Article 4(1 )(a) to (f), in good time    durable medium available to him of the
during the performance of the contract         information referred to in Article 4(1 )(a)
and at the latest at the time of delivery,     to (f), in good time during the
where goods are concerned, unless the          performance of the contract and at the
information has already been given to          latest at the time of delivery, where
the consumer prior to conclusion of the        goods are concerned, unless the
contact in writing or on another durable       information has already been given to
medium available to him.                       the consumer prior to conclusion of the
                                               contact in writing or on another durable
                                               medium.
Article 6(1) first sentence                    Article 6(1) first sentence
 1. For any distance contract the              1. For any distance contract shall have a
consumer shall have a period of not less       period of not less than seven working
than seven days in which he may                days in which he may withdraw from the
withdraw from the contract without             contract without penalty, without giving
penalty, without giving any reason.            any reason. The only costs payable shall
                                               be the direct return costs where
                                               appropriate.
Article 6(1) last sentence                     Article 6(1) last sentence
If the information referred to in Article 5    If the information referred to in Article 5
is supplied within this three-month            is supplied within this three-month
period, the consumer shall from that           period, the consumer shall from that
moment have available the seven-day            moment have available the seven-day
period referred to in the first paragraph.     working period referred to in the first
                                               paragraph.
Article 6(2)                                   Article 6(2)
2. Where the right of withdrawal has           2. Where the right of withdrawal has
been exercised by the consumer pursuant        been exercised by the consumer pursuant
to this Article, the supplier shall be         to this Article, the supplier shall be
obliged to reimburse the sums paid by          obliged to reimburse the sums paid by
the consumer. Such reimbursement must          the consumeriez of charge, except for
be carried out as soon as possible.            direct     return     changes,       where
                                               appropriate. Such reimbursement must
                                               be carried out as soon as possible and in
                                               any case within 30 days.
                                            12
 ---pagebreak--- Article 6(3) second indent                    Article 6(3) second indent
- for the supply of goods or services the     for transactions concerning movables and
price of which is dependent on                other goods or services the price of
fluctuations in the financial market          which is influenced by the fluctuations in
which cannot be controlled by the             the financial market and/or exchange
supplier.                                     rales and/or prices derived from them
                                              which cannot be controlled by the
                                              supplier
Article 7(2)                                  Article 7(2)
2. Where a supplier fails to perform his      2. Where a supplier fails to perform his
side of the contract on the grounds, that     side of the contract on the grounds, that
the goods or services ordered are             the goods or services ordered are
unavailable, the consumer must be             unavailable, the consumer must be
informed of this situation and must be        informed of this situation and must be
able to obtain a refund of any sums he        able to obtain a refund of any sums he
has paid as soon as possible.                 has paid as soon as possible, and, in any
                                              case, within 30 days.
Article 7(3)                                  Article 7(3)
3. Nevertheless Member States may lay         3. Nevertheless, it may be stipulated that
down that the supplier may provide the        the supplier must provide the consumer,
consumer with goods or services of            with his prior consent, with goods or
equivalent quality and price provided this    services of equivalent quality and price
possibility was provided for prior to         provided this possibility was provided
conclusion of the contract or when the        for prior to conclusion of the contract or
contract was concluded or when the            when the contract was concluded or
consumer      was informed       of    the    when the consumer was informed of the
unavailability of his order. The cost of      unavailability of his order. The cost of
returning the goods following exercise of     returning the goods following exercise of
the right of withdrawal is, in this case,     the right of withdrawal is, in this case,
the liability of the supplier, and the        the liability of the supplier, and the
consumer must be informed of this. In         consumer must be informed of this. In
such cases the supply of goods or             such cases the supply of goods or
services may not be deemed to constitute      services may not be deemed to constitute
inertia selling within the meaning of         inertia selling within the meaning of
Article 9.                                    Article 9.
                                           13
 ---pagebreak--- Article 10(2)                                 Article 10(2)
2. Member States shall ensure that            2. Member States shall ensure that
means of communication at a distance,         means of communication at a distance,
other than those referred to in               other than those referred to in
paragraph 1, which allow individual           paragraph 1, may be used only where
communications may be used only where         there is no clear objection from the
there is no clear objection from the          consumer.
consumer.
Article 11(2)                                 Article 11(2)
2. The means referred to in paragraph 1       2. The means referred to in paragraph 1
may include provisions whereby public         shall include provisions whereby public
bodies or their representatives or            bodies or their representatives or
consumer      organisations    having    a    consumer      organisations    having    a
legitimate interest under national law in     legitimate interest under national law in
protective consumers or professional          protective consumers or professional
organisations having a legitimate interest    organisations having a legitimate interest
may take action under national law            may take action under national law
before the courts or before the competent     before the courts or before the competent
 administrative bodies to ensure that the     administrative bodies to ensure that the
 provisions of this Directive are applied.    provisions of this Directive are applied.
 Article ll(3)(a)                             Article 11 (3 )(a)
 3. a) Member States may stipulate that        3. a) Member States shall stipulate that
 the burden of proof concerning the           the burden of proof concerning the
 existence of prior information, written       existence of prior information, written
 confirmation or compliance with time-        confirmation or compliance with time-
 limits or the consumer's consent can be       limits or the consumer's consent can be
 placed on the supplier.                       placed on the supplier.
                                           14
 ---pagebreak--- Article 13                                     Article 13
1. The provisions of this Directive shall      1. The provisions of this Directive shall
apply in so far as there are not               be without prejudice to the application of
particular provisions in rules of              specific rules to certain techniques or to
Community law governing certain types          certain goods or services governed by
of distance contracts in their entirety.       other Community rules.
2. Where specific Community rules on           2. Where a specific Community rules
goods or services contain provisions           contain provisions governing only
governing aspects concerned with:              certain aspects of the marketing of goods
                                               and services, these provisions shall apply
         information prior to conclusion       to these specific aspects of the contract.
         of the contract,
         written confirmation of the prior
         information,
         right of withdrawal,
         inertia selling,
        judicial or administrative redress,
         restrictions on the use of means
         of communication at a distance,
        payment by card,
        performance of the contract,
such provisions shall apply solely to
distance contracts in respect of the
aspects covered.
Article 15(1)                                  Article 15(1)
 1. Member States shall bring into force       1. Member States shall bring into force
the laws, regulations and administrative       the laws, regulations and administrative
provisions necessary to comply with this       provisions necessary to comply with this
Directive no later than three years after      Directive no later than two years after it
it enters into force. They shall forthwith     enters into force. They shall forthwith
inform the Commission thereof.                 inform the Commission thereof.
                                            15
 ---pagebreak--- Article 15(4)                                 Article 15(4)
4. No later than six years after the entry    4. No later than five years after the entry
into force of this Directive the              into force of this Directive the
Commission shall submit a report to the       Commission shall submit a report to the
European Parliament and to the Council        European Parliament and to the Council
on the implementation of this Directive,      on the implementation of this Directive,
accompanied if appropriate by a proposal      accompanied if appropriate by a proposal
for the revision of this Directive.           for the revision of this Directive.
                                              Article ?5a, (new)
                                              Consumer information
                                              Member States shall ensure that:
                                              -       consumers are informed of the
                                                      provisions of this Directive;
                                                      the trade and          professional
                                                      organisations inform consumers
                                                      of the existence and content of
                                                      their codes of practice.
                                              Article 15t> (new)
                                              CQTPPtoMs system
                                              Member States shall encourage branch
                                              and professional organisations to prepare
                                              complaints systems on the basis of self-
                                              regulation.
                                           16
 ---pagebreak---                                                                    BSN 0254-1475
                                                             COM(%) 36 final
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