E-comm Consumer Rights - Proposal of Directive of the European Parliament and of the Council

8/6/2019 E-comm Consumer Rights - Proposal of Directive of the European Parliament and of the Council

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Report A7-0038/2011

Andreas SchwabConsumer rights (final vote)COM(2008)0614 C6-0349/2008 2008/0196(COD)

Proposal for a directive

AMENDMENTS BY PARLIAMENT

to the Commission proposal for a

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DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on consumer rights, amending Council Directive 93/13/EEC and Directive1999/44/EC of the European Parliament and of the Council and repealing CouncilDirective 85/577/EEC and Directive 97/7/EC of the European Parliament and of

the Council

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEANUNION,

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee1,

Having regard to the opinion of the Committee of the Regions2,

Acting in accordance with the ordinary legislativeprocedure3,

Whereas:

Amendments: new or amended text is highlighted in bold italics; deletions

are indicated by the symbol .1 OJ C 317, 23.12.2009, p. 54.2 OJ C 200, 25.8.2009, p. 76.3 Position of the European Parliament of ... ... 2011.


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(1) Council Directive 85/577/EEC of 20 December 1985 to protect the consumerin respect of contracts negotiated away from business premises1 andDirective 97/7/EC of the European Parliament and of the Council of 20 May1997 on the protection of consumers in respect of distance contracts 2 laydown a number of contractual rights for consumers.

(2) Those Directives have been reviewed in the light of experience with a viewto simplifying and updating the applicable rules, removing inconsistenciesand closing unwanted gaps in the rules. That review has shown that it isappropriate to replace those two Directives by a single Directive. ThisDirective should accordingly lay down standard rules for the commonaspects of distance and off-premises contracts moving away from theminimum harmonisation approach in the former Directives whilst allowingMember States to maintain or adopt national rules in relation to certainaspects.

(3) Article 169(1) and point (a) of Article 169(2) ofthe Treaty on theFunctioning of the European Union (TFEU) provides that the Union is to

contribute to the attainment of a high level of consumer protection by themeasures it adopts pursuant to Article 114thereof.

(4) In accordance with Article 26(2) TFEU, the internal market is to comprisean area without internal frontiers in which the free movement of goods andservices and freedom of establishment are ensured. The harmonisation ofcertain aspects of consumerdistance and off-premises contracts is necessaryfor the promotion of a real consumer internal market striking the right

balance between a high level of consumer protection and the competitivenessof enterprises, while ensuring respectforthe principle of subsidiarity.

(5) The cross-border potential of distance selling which should be one of the

main tangible results of the internal market is not fully exploited .Compared with the significant growth of domestic distance sales over the lastfew years, the growth in cross-border distance sales has been limited. Thisdiscrepancy is particularly significant for Internet sales for which the

potentialforfurther growth is high. The cross-border potential of contractsnegotiated away from business premises (direct selling) is constrained by anumber of factors including the different national consumer protection rulesimposed upon the industry. Compared with the growth of domestic directselling over the last few years, in particular in the services sector , forinstance utilities , the number of consumers using this channel for cross-

border purchases has remained flat. Responding to increased businessopportunities in many Member States, small and medium sized enterprises

(including individual traders) or agents of direct selling companies should bemore inclined to seek business opportunities in other Member States, in

particular in border regions. Therefore the full harmonisation of consumerinformation and the right of withdrawal in distance and off-premisescontracts will contribute to a high level of consumer protection and a betterfunctioning of the business-to-consumer internal market.

1 OJ L 372, 31.12.1985, p. 31.2 OJ L 144, 4.6.1997, p. 19.


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(7) Certain disparities create significant internal market barriers affectingtraders and consumers. They increase compliance costs to traders wishing toengage in the cross- border sale of goods or provision of services.

Disproportionate fragmentation also undermines consumer confidence in

the internal market. (8) Full harmonisation of some key regulatory aspects will considerably increase

legal certainty for both consumers and traders. Both consumers and traderswill be able to rely on a single regulatory framework based on clearly definedlegal concepts regulating certain aspects of business-to-consumer contractsacross the Union. The effect will be to eliminate the barriers stemming fromthe fragmentation of the rules and to complete the internal market in thisarea. Thosebarriers can only be eliminated by establishing uniform rules atUnion level. Furthermore consumers will enjoy a high common level of

protection across the Union.

(8a) The harmonised regulatory aspects concern only contracts concludedbetween traders and consumers. Therefore, this Directive should not affectnational law in the area of contracts relating to employment, contractsrelating to succession rights, contracts relating to family law and contractsrelating to the incorporation and organisation of companies or partnershipagreements.

(9) As far asbusiness-to-consumer contracts are concerned, the Directiveestablishes rules on information to be provided for distance contracts, off-

premises contracts and contracts other than distance and off-premisescontracts. This Directive also regulates the right of withdrawal for distanceand off-premises contracts and harmonises certain provisions dealing with

the performance and some other aspects ofconsumer contracts.(10) The provisions of this Directive should be without prejudice to Regulation

(EC) No 593/2008 of the European Parliament and of the Council of 17 June2008 on the lawapplicable to contractual obligations (Rome I)1.

(10a) This Directive should be without prejudice to Union provisions relating tospecific sectors, such as medicinal products for human use, medicaldevices, privacy and electronic communications, patients' rights in cross-border healthcare, food labelling and the internal market on electricity andnatural gas.

(10b) The information requirements provided for in this Directive complete theinformation requirements of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in theinternal market2 and Directive 2000/31/EC of the European Parliamentand of the Council of 8 June 2000 on certain legal aspects of informationsociety services, in particular electronic commerce, in the Internal Market

1 OJ L 177, 4.7.2008, p. 6.2 OJ L 376, 27.12.2006, p. 36.


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(Directive on electronic commerce)1 . The possibility for Member States toimpose additional information requirements applicable to service providersestablished in their territory is maintained.

(10c) Member States should remain competent, in accordance with Union law, toapply the provisions of this Directive to areas not falling within its scope.

Member States may therefore maintain or introduce national legislationcorresponding to the provisions of this Directive or certain of its provisionsin relation to transactions that fall outside the scope of this Directive. Forinstance, Member States may decide to extend the application of the rulesof this Directive to legal or natural persons which are not 'consumers' inthe meaning of this Directive, such as for example non-governmentalorganisations, start-ups or small and medium-sized enterprises. Member

States may similarly apply the rules of this Directive to contracts that arenot 'distance contracts' within the meaning of this Directive, for examplebecause they are not concluded under an organised distance sales orservice-provision scheme. Moreover, Member States may also maintain orintroduce national provisions on issues not specifically addressed in the

Directive, such as additional rules concerning sales contracts, including inrelation to delivery of goods or requirements for the provision ofinformation during the existence of a contract.

(10d) This Directive should not affect national law in the area of contract lawinsofar as contract law aspects are not regulated in this Directive.Therefore, this Directive should be without prejudice to national lawregulating for instance the conclusion or the validity of a contract, forinstance lack of consent. Similarly, this Directive should not affect the

general contractual legal remedies, the rules on public economic order, forinstance rules on excessive or extortionate prices, and the rules onunethical legal transactions.

(10e) This Directive does not harmonise language requirements applicable toconsumer contracts. Therefore, Member States may maintain or introducein their national law linguistic requirements regarding contractualinformation requirements and contract terms.

(10f) This Directive should not affect national laws on legal representation suchas the rules relating to the person who is acting in the name of the traderor on his behalf (such as an agent or a trustee). Member States remaincompetent in this area. This Directive should apply to all traders, whether

public or private.

(10g) The definition of consumer should cover natural persons who are actingoutside their trade, business, craft or profession. However, if the contract isconcluded for purposes partly within and partly outside the person's trade(dual purpose contracts) and the trade purpose is so limited as not to be

predominant in the overall context of the supply, that person should also beconsidered as a consumer.

1 OJ L 178, 17.7.2000, p. 1.


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communications to request the provision of a service from a professional,such as in the case of a consumer phoning to request an appointment witha hairdresser. The notion of an organised distance sales or service-

provision scheme includes those schemes offered by a third party otherthan the trader but used by the trader, such as an online platform. It doesnot, however, cover cases where websites offer purely information on the

trader, his goods and/or services and how the trader can be contacted.

(14) An off-premises contract should be defined as a contract concluded with thesimultaneous physical presence of the trader and the consumer, in a placewhich is not the business premises of the trader, for example at theconsumer's home or workplace. In an off-premises context, consumers maybe underpotential psychological pressure or may be confronted with anelement of surprise, irrespective of whetheror not they have solicited thetrader's visit. The definition of an off-premises contract should also includesituations where the consumer is personally and individually addressed in

such circumstances but the contract is concluded immediately afterwardson the business premises of the trader or through a means of distancecommunication. The definition of an off-premises contract does not coversituations for which traders first come to the consumer's home strictly witha view to taking measurements or giving an estimate without anycommitment of the consumer and where the contract is then concludedonly at a later point in time on the trader's premises or via means ofdistance communication on the basis of the traders estimate. In thosecases, the contract is not concluded immediately after the trader hasaddressed the consumer if the consumer had time to reflect upon theestimate of the trader before concluding the contract. Purchases madeduring an excursion of the trader during which he carries out the

promotion and sale of the products acquired should be considered as off-premises contracts.

(15) Business premises should include premises in whatever form (such as shops,stalls or lorries) which serve as a permanent or usualplace of business forthe trader. Market stalls and fair stands should be treated as business

premises if they fulfil this requirement. Retail premises where the tradercarries out his activity on a seasonal basis, for instance during the touristseason at a ski or beach resort, should be treated as business premises asthe trader carries on his activity on a usual basis. The spaces accessible tothe public, such as streets, shopping malls, beaches, sports facilities and

public transport , that the trader uses on an exceptional basis for hisbusiness activities as well as private homes or workplaces should not beregarded as business premises. The business premises of a person acting inthe name or on behalf of the trader as defined in this Directive should beconsidered as business premises within the meaning of this Directive.

(16) Durable media should enable the consumer to store the information for aslong as it is relevant for him to protect his interests stemming from hisrelationship with the trader. Such media include in particular paper, USB


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sticks, CD-ROMs, DVDs, memory cards or the hard disks of computers aswell as electronic mails.

(16a) A public auction implies that traders and consumers attend or are given thepossibility to attend the auction in person. The goods or services are offeredby the trader to consumers through a bidding procedure authorised by law

in some Member States, to sell goods at public sale, a so-called auctioneer.The successful bidder is bound to purchase the goods or services. The useof on-line platforms for auction purposes at the disposal of consumers andtraders is not considered as a public auction within the meaning of this

Directive.

(20a) Contracts related to district heating should be covered by this Directive,similarly to the contracts for the supply of water, gas and electricity.

District heating refers to the supply of heat, inter alia in the form of steamor hot water, from a central source of production through a transmission

and distribution system to multiple buildings, for the purpose of heating.(20b) Contracts related to the transfer of rights in immovable property or the

creation of such rights, contracts for the construction of new buildings, forthe substantial conversion of existing buildings as well as contracts forrental of accommodation for residential purposes are already subject to anumber of specific requirements in national legislation. These include forinstance sales of immovable property still to be developed and hire-

purchase. The provisions of this Directive are not appropriate to thosecontracts. For these reasons, this Directive should not apply to suchcontracts. A substantial conversion is a conversion comparable to theconstruction of a new building, for example where only the faade of an

old building is retained. Service contracts in particular related to theconstruction of annexes to buildings (for example a garage or a veranda)and related to repair and renovation of buildings other than substantialconversion are included in the scope of this Directive, as well as contractsrelated to the services of a real estate agent and the contracts related to therental of accommodation for non-residential purposes.

(20c) Transport services cover passenger transport and transport of goods. Passenger transport is excluded from the scope of this Directive as it isalready subject to other Union legislation, or in the case of public transportand taxis, subject to regulation at national level. However, the provisions

protecting consumers against excessive fees for the use of means of

payment or against hidden costs should apply also to passenger transportcontracts. In relation to transport of goods and car rental which areservices, consumers should benefit from the protection afforded by this

Directive, with the exception of the right of withdrawal.

(20d) In order to avoid administrative burden, Member States may decide not toapply provisions of this Directive where goods or services of a minor valueare sold off-premises. The monetary threshold should be established at asufficiently low level as to cover only purchases of small significance.

Member States may define this value in national legislation provided that it


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does not exceed EUR 50. When more contracts with related subjects areconcluded at the same time by the consumer, the total cost should notexceed this threshold.

(20e) Social services have fundamentally distinct features that are reflected insector-specific regulations, part of them at the Union level and part of them

at the national level. Social services include, on the one hand, services for particularly disadvantaged or low income persons as well as services forpersons and families in need of assistance in carrying out routine, everydaytasks and, on the other hand, services for all people who have a specialneed for assistance, support, protection or encouragement in a specific life

phase. These cover, inter alia, services for children and youth, assistanceservices for families, single parents and older persons and services formigrants. They cover both short-term and long-term care services, forinstance provided by home care services, in assisted living facilities andresidential homes or housing (nursing homes). Social services are notonly those provided by the State at a national, regional or local level by

providers mandated by the State or by charities recognised by the State but

also those provided by private operators. The provisions of this Directiveare not appropriate to social services which are thus excluded from itsscope.

(20f) Healthcare requires special regulations because of its technical complexity,its importance for services of general interest as well as extensive public

funding. Healthcare is defined in the Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on theapplication on patients' rights in cross-border healthcare1 as "healthservices provided by health professionals to patients to assess, maintain orrestore their state of health, including the prescription, dispensation and

provision of medicinal products and medical devices". Health professional

means a doctor of medicine or a nurse responsible for general care or adental practitioner or a midwife or a pharmacist within the meaning of

Directive 2005/36/EC of 7 September 2005 on the recognition ofprofessional qualifications or another professional exercising activities inthe healthcare sector which are restricted to a regulated profession asdefined in point (a) of Article 3(1) of Directive 2005/36/EC. The provisionsof this Directive are not appropriate to healthcare which is thus excluded

from its scope.

(20g) Gambling is excluded from the scope of this Directive. Gambling activitiesare those which involve wagering at stake with pecuniary value in games ofchance, including lotteries, gambling in casinos and betting transactions.

Member States should be able to adopt other, including more stringent,consumer protection measures in relation to such activities.

(20h) The existing Union legislation inter alia relating to consumer financialservices, package travel and timeshare contains numerous rules onconsumer protection. For this reason, this Directive should not apply tocontracts relating to these areas. With regard to financial services, Member

1 OJ L 88, 4.4.2011, p. 45.


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States should be encouraged to draw inspiration from existing Unionlegislation in that area when legislating in areas not regulated at the Unionlevel, in such a way that a level playing field for all consumers and allcontracts relating to financial services is ensured.

(20i) Traders should be obliged to inform consumers in advance of any

arrangement resulting in the consumers paying a deposit to the trader,including an arrangement whereby an amount is blocked on theconsumers' credit or debit card.

(20j) The consumer should be given clear and comprehensible informationbefore he is bound by any distance or off-premises contract, any contractother than an off-premises or a distance contract or any correspondingoffer. In providing that information, the trader should take into accountthe specific needs of consumers who are particularly vulnerable because oftheir mental, physical or psychological infirmity, age or credulity in a waywhich the trader could reasonably be expected to foresee. However, takinginto account such specific needs should not lead to different levels of

consumer protection.(20k) The information to be provided to the consumer is mandatory and cannot

be altered. Nevertheless, the contracting parties should be able to expresslyagree to change the content of the contract subsequently concluded, forinstance the arrangements for delivery.

(21) In the case of distance contracts, the information requirements should beadapted to take into account the technical constraints of certain media, asthe restrictions on the number of characters on certain mobile telephonescreens or the time constraint on television sales spots. In such cases thetrader should comply with a minimum set of information requirements and

refer the consumer to another source of information, for instance byproviding a toll free telephone number or a hypertext link to a webpage ofthe trader where the relevant information is directly available and easilyaccessible. As to the requirement to inform the consumer of the cost ofreturning the goods, which by their nature cannot normally be returned by

post, the trader would comply, for example, if he specifies one carrier (forinstance the one he assigned for the delivery of the good) and one priceconcerning the cost of returning the goods. Where the cost of returning the

goods cannot reasonably be calculated in advance by the trader, forexample because the trader does not offer to arrange for the return of the

goods himself, the trader should provide a statement that such a cost willbe payable, and that this cost may be high, along with a reasonable

estimation of the maximum cost, which could be based on the cost ofdelivery to the consumer.

(22) Since in the case of distance sales, the consumer is not able to see thegoodsbefore concluding the contract he should have a right of withdrawal. For thesame reason, the consumer should be allowed to test and inspect the goodshe wants to buy to the extent necessary to establish the nature,characteristics and functioning of the goods. Concerning off-premisescontracts, the consumer should have the right of withdrawal due to the


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potential surprise element and/or psychological pressure. Withdrawal fromthe contract should terminate the obligations of the contracting parties to

perform the contract.

(22a) In the case of online contracts, trading websites should indicate clearly andlegibly at the latest at the beginning of the ordering process whether any

delivery restrictions apply and what means of payment are accepted.(22b) It is important to ensure that, in distance contracts concluded through

websites, the consumer is able to fully read and understand the mainelements of the contract before placing his order. To that end, provisionshould be made for those elements to be displayed in the close vicinity ofthe confirmation requested for placing the order. It is also important toensure that, in such situations, the consumer is able to determine themoment at which he assumes the obligation to make a payment to thetrader. Therefore, the consumers attention should specifically be drawn,through an unambiguous formulation, to the fact that placing the orderentails the obligation to make a payment to the trader.

(23) The current varying lengths of the withdrawal periods both between theMember States and for distance and off-premises contracts cause legaluncertainty and compliance costs. The same withdrawal period should applyto all distance and off-premises contracts. In the case of services contracts,the withdrawal period should expire 14 days from the conclusion of acontract. In the case of sales contracts, the withdrawal period should expire14 days from the day when the consumer or a third party other than thecarrier and indicated by the consumer acquires physical possession of the

goods, while the consumer should be able to exercise the right to withdrawbefore the receipt of goods. Where multiple goods are ordered by theconsumer in one order but are delivered separately, the withdrawal period

should start when the consumer acquires physical possession of the lastgood. Where goods are delivered in multiple lots or pieces, the withdrawal period should begin from the day on which the consumer acquires thematerial possession of the last lot or piece.

(24) To ensure legal certainty, it is appropriate that Council Regulation (EEC,Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to

periods, dates and time limits1 should apply to the calculation of the periodscontained in this Directive. Therefore, all periods contained in this Directiveshould be understood to be expressed in calendar days. Where a periodexpressed in days is to be calculated from the moment at which an eventoccurs or an action takes place, the day during which that event occurs or

that action takes place shall not be considered as falling within the periodin question.

(24a) The provisions relating to the right of withdrawal are without prejudice tothe Member States laws and regulations governing the termination ornon-enforceability of a contract or the possibility for a consumer to fulfilhis contractual obligations before the time fixed in the contract.

1 OJ L 124, 8.6.1971, p. 1.


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(27) If the trader has not adequately informed the consumer prior to theconclusion of a distance or off-premises contract, the withdrawal periodshould be extended. However, in order to ensure legal certainty over time, atwelve-month limitation period should be introduced .

(28) Differences in the ways in which the right of withdrawal is exercised in theMember States have caused costs for traders selling cross-border. Theintroduction of a harmonised modelwithdrawal form thatthe consumermayuse should simplify the withdrawal process and bring legal certainty. Forthese reasons, Member States should refrain from adding any presentationalrequirements to the Union-wide modelform relating for example to the fontsize. However, the consumer should remain free to withdraw in using hisown words, provided that his statement to the trader is unequivocal. Aletter, a telephone call or returning the goods with a clear statement couldmeet this requirement, but the burden of proof of having withdrawn withinthe time limits fixed in the Directive will be incumbent on the consumer.

For this reason, it is in the interest of the consumer to make use of adurable medium when communicating his withdrawal to the trader.

(29) As experience shows that many consumers and traders prefer tocommunicate via the trader's website, there should be a possibility for thetrader to give the consumer the option of filling in a web-based withdrawalform. In this case the trader should provide an acknowledgement of receipt

for instanceby email without delay.

(30) In the eventof withdrawal the trader should reimburse all payments receivedfrom the consumer, including those covering the expenses borne by thetrader to deliver goods to the consumer. The reimbursement should not be

made by voucher unless the consumer has expressly agreed. If theconsumer expressly chooses a certain type of delivery (for instance 24-hourexpress delivery), although the trader had offered a common and generallyacceptable type of delivery which would have incurred lower delivery costs,the consumer should bear the difference in costs between these two types ofdelivery.

(31) Some consumers exercise their right of withdrawal after having used thegoods to an extent more than necessary to establish the nature,characteristics and functioning of the goods. In this case the consumershould not lose the right to withdraw but shouldbe liable for any diminishedvalue of the goods. In order to establish the nature , characteristics and

functioning ofthe goods, the consumer should only handle and inspectit inthe same manner as he would be allowed to do in a shop. For example, theconsumer should only try on a garment and should not be allowed to wear it.Consequently, the consumer should handle and inspect the goods with duecare during the withdrawal period. The provisions of Article 17 should notdiscourage the consumer from benefiting from his right of withdrawal.

(32) The consumer should be required to send back the goods no later than14days after having informed the trader about his decision to withdraw. Insituations where the trader or the consumer does not fulfil the obligations


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connected with the exercise of the right of withdrawal, penalties provided for by national legislation in accordance with Article 42 should apply aswell as contract law provisions.

(33) Certain exceptions should exist from the right of withdrawal, both fordistance and off-premises contracts. A right of withdrawal could be

inappropriate for example given the nature of thegoods or services. That isapplicable for example to wine supplied a long time after the conclusion ofthe contract of a speculative nature where the value is dependent onfluctuations in the market ("vin en primeur"). The right of withdrawalshould be inappropriate for goods made to the consumers specifications orclearly personalised such as tailor-made curtains. A right of withdrawalshould also be inappropriate for the supply of fuel, for example, which is a

good, by nature, inseparable after delivery from other items. Theapplication of a right of withdrawal could also be inappropriate for certainservices where the conclusion of the contract implies the setting aside ofcapacity which, if a right of withdrawal was introduced, the trader may finddifficult to fill. This would for example be the case when reservations are

made at hotels or concerning holiday cottages, cultural or sporting events.

(33a) On the one hand, the consumer should benefit from his withdrawal righteven in case he has asked for the provision of services before the end of thewithdrawal period. On the other hand, if the consumer does exercise hisright of withdrawal, the trader should be assured to be adequately paid forthe service he has provided. The calculation of the proportionate amountshould be based on the price agreed in the contract unless the consumerdemonstrates that that total price is itself disproportionate, in which casethe amount to be paid shall be calculated on the basis of the market valueof what has been provided. The market value is defined by comparing the

price of an equivalent service performed by other traders at the time of the

conclusion of the contract. Therefore the consumer should request the provision of services before the end of the withdrawal period by makingthis specific request expressly in the case of distance contracts or on adurable medium in the case of off-premises contracts. Similarly, the tradershould inform the consumer on a durable medium of any obligation to paythe proportionate costs for the service already provided. For contractshaving as their object both goods and services, the rules provided for in this

Directive on the return of goods should apply to the goods aspects and thecompensation regime for services should apply to the services aspects.

(37) The main difficulties encountered by consumers and one of the mainsource of disputes with traders are about delivery of goods, including goodsgetting lost or damaged during transport and late and partial delivery.Therefore it is appropriate to clarify and harmonise the national rules onwhen delivery should occur. The place and modalities of delivery and therules concerning the determination of the conditions for and the moment atwhich the ownership of the goods is transferred, remain subject to nationallaw and are thus not affected by this Directive. These rules include the

possibility for the consumer to allow a third party to acquire on his behalf


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the physical possession or control of the goods. The consumer should beconsidered to have control of the goods where he or a third party indicatedby the consumer has access to the goods to use them as an owner, or theability to resell the goods (for example, when he has received the keys or

possession of the ownership documents).

(38) In the context of sales contracts, the delivery of goods can take place invarious ways , either immediately or at a later date. If the parties have notagreed on a specific delivery date, the trader should deliver the goods assoon as possible, but in any event not later than thirty days from the day ofthe conclusion of the contract. The rule regarding the late delivery shouldalso take into account goods to be manufactured or acquired specially forthe consumer which cannot be reused by the trader without considerableloss. Therefore, a rule which grants an additional reasonable delay to thetrader in certain circumstances should be provided for in this Directive.When the trader has failed to deliver the goods in the time agreed with theconsumer, before the termination of the contract, the consumer should callupon the trader to make the delivery within a reasonable additional period

and be entitled to terminate the contract. However, this rule should notapply when the trader has refused to deliver the goods in an unequivocalstatement. Neither should it apply in certain circumstances where thedelivery period is essential such as, for example, a wedding dress whichshould be delivered before the wedding. Nor should it apply incircumstances where the consumer informs the trader that delivery on aspecified date is essential. For this purpose, consumers may use the contactdetails given in accordance with point (b) of Article 5(1) or point (b) of

Article 9(1). In these specific cases, if the trader fails to deliver the goodson time, the consumer is entitled to terminate the contract immediatelyafter the expiry of the delivery period initially agreed. This Directive shouldbe without prejudice to national provisions on the way the consumershould notify the trader of his will to terminate the contract.

(38a) In addition to the consumers right to terminate the contract where thetrader has failed to fulfil his obligations to deliver in accordance with this

Directive, the consumer may, in accordance with the applicable nationallaw, have recourse to other remedies, such as to allow an additional time

for delivery, enforce the performance of the contract, withhold payment,and seek damages.

(38b) In accordance with Article 52(3) of Directive 2007/64/EC of the EuropeanParliament and ofthe Council of 13 November 2007 on payment servicesin the internal market1 , Member States should be able to prohibit or limittraders' right to request charges from consumers taking into account theneed to encourage competition and promote the use of efficient paymentinstruments. In any event, traders should be prohibited from chargingconsumers fees that exceed the cost borne by the trader for the use of acertain means of payment.

1 OJ L 319, 5.12.2007, p. 1.


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(38c) When the goods are dispatched to the consumer by the trader, the moment ofthe transfer of risk could be, in case of loss or damage, a source of disputes.Therefore a rule which provides that the consumer should be protectedagainst any risk of loss or damage of the goods occurring before he hasacquired the physical possession of the goods has been inserted in this

Directive. The consumer should be protected during a transport arranged or

carried out by the trader, even where the consumer has chosen a particulardelivery method from a range of options offered by the trader. On the otherhand, this Directive should not apply to contracts where it is up to theconsumer to take delivery of the goods himself or to ask a carrier to takedelivery. Regarding the moment of the transfer of the risk, a consumershould be considered to have acquired the physical possession of the goodswhen he has received them.

(57) Persons or organisations regarded under national law as having a legitimateinterest in protecting consumer contractual rights should be afforded legal

remedies for initiating proceedings, either before a court or before anadministrative authority which is competent to decide upon complaints or toinitiate appropriate legal proceedings.

(58) It is necessary that Member States lay down penalties for infringements ofthe provisions of this Directive and ensure that they are enforced. The

penalties should be effective, proportionate and dissuasive.

(59) The consumer should not be deprived of the protection granted by thisDirective. Where the law applicable to the contract is that of a third country ,Regulation (EC) No 593/2008 of the European Parliament and of the Councilof 17 June 2008 on the law applicable to contractual obligations (Rome I)1

should apply, in order to determine whether the consumer retains theprotection granted by this Directive.

(60) The Commission , following consultation with the Member States andstakeholders, will look into the most appropriate way to ensure that allconsumers are made aware of their rights at the point of sale.

(61) Since inertia selling, which consists of unsolicited supplies of goods orservices to consumers, is prohibited by Directive 2005/29/EC of theEuropean Parliament and of the Council of 11 May 2005 concerning unfair

business-to-consumer commercial practices in the internal market andamending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and

2002/65/EC of the European Parliament and of the Council and Regulation(EC) No 2006/2004 of the European Parliament and of the Council (UnfairCommercial Practices Directive)2 but no contractual remedy is providedthereof, it is necessary to introduce in this Directive the contractual remedyof exempting the consumer from the provision of any consideration for suchunsolicited supplies.

1 OJ L 177, 4.7.2008, p. 6.

2 OJ L 149, 11.6.2005, p. 22.


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(62) Directive 2002/58/EC already regulates unsolicited communications and provides for a high level of consumer protection. The corresponding provisions on the same issue contained in Directive 97/7/EC should bedeleted.

(63) It is appropriate to review this Directive if some barriers to the internal

market were identified.In its review, the Commission should pay particularattention to the possibilities foreseen for Member States to maintain orintroduce specific national provisions including in certain areas of

Directives 93/13/EEC and 1999/44/EC. The review could lead to aCommission proposal to amend this Directive, which may includeamendments to other consumer protection legislation reflecting theCommission's Consumer Policy Strategy commitment to review the acquis inorder to achieve a high, common level of consumer protection.

(63a) Directives 93/13/EEC and 1999/44/EC should be amended to require Member States to inform the Commission about the adoption of specificnational provisions in certain areas.

(64) Directives 85/577/EEC and 97/7/EC should be repealed.

(65) Since the objective of this Directive, namely, through the achievement of ahigh level of consumer protection, to contribute to the proper functioningof the internal market, cannot be sufficiently achieved by the Member Statesand can therefore be better achieved at Union level, the Union may adoptmeasures, in accordance with the principle of subsidiarity as set out in Article5 of the Treaty on European Union. In accordance with the principle of

proportionality, as set out in that Article, this Directive does not go beyondwhat is necessary in order to achieve that objective.

(66) This Directive respects the fundamental rights and observes the principlesrecognised in particular by the Charter of Fundamental Rights of theEuropean Union.

(66a) In accordance with point 34 of the Interinstitutional agreement on betterlaw making1 , Member States are encouraged to draw up, for themselvesand in the interests of the Union, their own tables, which will, as far as

possible, illustrate the correlation between this Directive and thetransposition measures, and to make them public,

HAVE ADOPTED THIS DIRECTIVE:

Chapter ISubject matter, definitions and scope

Article 1Subject matter

The purpose of this Directive is , through the achievement of a high level ofconsumer protection, to contribute to the proper functioning of the internal market

1 OJ C 321, 31.12.2003, p. 1.


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by approximating certain aspects of the laws, regulations and administrativeprovisions of the Member States concerning contracts between consumers and traders.

Article 2Definitions

For the purpose of this Directive, the following definitions shall apply:(1) 'consumer' means any natural person who, in contracts covered by this

Directive, is acting for purposes which are outside his trade, business, craft orprofession;

(2) 'trader' means any naturalperson orany legal person, irrespective of whetherprivately or publicly owned, who is acting , including through any otherperson acting in his name or on his behalf, forthe purposes relating to histrade, business, craft or profession in relation to contracts covered by this

Directive;

(4) 'goods' means any tangible movable item, with the exception of goods sold

by way of execution or otherwise by authority of law . Water, gas andelectricity shall be considered as 'goods' within the meaning of this Directivewhere they are put up for sale in a limited volume or set quantity ;

(4a) 'goods made to the consumer's specifications' means non-prefabricated goods made on the basis of an individual choice or decision by theconsumer;

(4b) 'sales contract' means any contract under which a trader transfers orundertakes to transfer the ownership of goods to a consumer and theconsumer pays or undertakes to pay the price, including any contract havingas its object both goods and services;

(5) 'service contract' means any contract other than a sales contract under whichthe trader supplies or undertakes to supply a service to the consumer and theconsumer pays or undertakes to pay the price;

(6) 'distance contract' means any contract concluded between a trader and aconsumer under an organised distance sales or service-provision schemewithout the simultaneous physical presence of the trader and the consumer,with the exclusive use of one or more means of distance communication upto and including the time at which the contract is concluded;

(8) 'off-premises contract' means any contract between a trader and a consumereither:

(a) concluded in the simultaneous physical presence of the trader and theconsumer, in a place which is not the business premises of the trader;or


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(aa) for which an offer was made by the consumer in the same circumstances,as referred to in point (a); or

(b) concluded on the business premises of the trader or through anymeans of distance communication immediately after the consumer was

personally and individually addressed in a place which is not the

business premises, of the trader in the simultaneous physical presence ofthe trader and the consumer; or

(ba) concluded during an excursion organised by the trader with the aim oreffect of promoting and selling goods or services to the consumer.

(9) 'business premises' means:

(a) any immovable retail premises where the trader carries on his activityon a permanent basis; or

(b) any movable retail premises where the trader carries on his activity on a

usualbasis;(10) 'durable medium' means any instrument which enables the consumer or the

trader to store information addressed personally to him in a way accessible forfuture reference for a period of time adequate for the purposes of theinformation and which allows the unchanged reproduction of the informationstored;

(12a) 'digital content' means data which are produced and supplied in digitalform;

(13) 'financial service' means any service of a banking, credit, insurance, personalpension, investment or payment nature;

(16) 'public auction' means a method of sale where goods or services are offered bythe trader to consumers, who attend or are given the possibility to attend theauction in person, through a transparent, competitive bidding procedure run

by an auctioneer and where the successful bidder is bound to purchase thegoods or services;

(18) 'commercial guarantee' means any undertaking by the trader or producer (the'guarantor') to the consumer, in addition to his legal obligation relating to the

guarantee of conformity, to reimburse the price paid or to replace, repair orservice goods in any way if they do not meet the specifications or any otherrequirements not related to conformity set out in the guarantee statement or inthe relevant advertising available at the time of, or before the conclusion of thecontract;


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(20) 'ancillary contract' means a contract by which the consumer acquires goods orservices related to a distance contract or an off-premises contract and thosegoods or services are provided by the trader or a third party on the basis of anarrangement between that third party and the trader.

Article 3

Scope1. This Directive shall apply, under the conditions and to the extent set out in its

provisions, to contracts concluded between a trader and a consumer. It shall alsoapply to contracts for the supply of water, gas, electricity and district heating by

public providers to the extent that these commodities are provided on a contractualbasis.

2. If the provisions of this Directive conflict with a provision of another Unionact governing specific sectors, the provision of that other Union act shall prevailand shall apply to those specific sectors.

3. This Directive shall not apply to contracts:(a) for social services, including social housing, childcare and support of

families and persons permanently or temporarily in need, including long-term care;

(b) for healthcare as defined in Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application ofpatients rights in cross-border healthcare1, whether or not they are providedvia healthcare facilities;

(c) for gambling, which involves wagering a stake with pecuniary value in

games of chance, including lotteries, casino games and betting transactions;(d) for financial services;

(e) for the creation, acquisition or transfer of rights of or in immovableproperty;

(f) for the construction of new buildings, the substantial conversion of existingbuildings and for rental of accommodation for residential purposes;

(g) which fall within the scope of Council Directive 90/314/EEC of 13 June1990 on package travel, package holidays and package tours2;

(h) which fall within the scope of Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection ofconsumers in respect of certain aspects of timeshare, long-term holiday

product, resale and exchange contracts3;

1 OJ L 88, 4.4.2011, p. 45.2 OJ L 158, 23.6.1990, p. 59.3 OJ L 33, 3.2.2009, p. 10.


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(i) which, in accordance with the provisions of Member States, are establishedby a public office-holder who has a statutory obligation to be independentand impartial and who must ensure, by providing comprehensive legalinformation, that the consumer only concludes the contract on the basis ofcareful legal consideration and with knowledge of its legal scope;

(j) for the supply of foodstuffs, beverages or other goods intended for currentconsumption in the household, and which are physically supplied by a traderon frequent and regular rounds to the consumer's home, residence orworkplace;

(k) for passenger transport services, with the exception of Article 11(1a) andArticles 22a and 28b;

(l) concluded by means of automatic vending machines or automatedcommercial premises;

(m) concluded with telecommunications operators through public payphones for

their use or concluded for the use of one single connection by telephone,Internet or fax established by a consumer.

4. Member States may decide not to apply this Directive nor maintain orintroduce corresponding national provisions to off-premises contracts for which the

payment to be made by the consumer does not exceed EUR 50. Member States maydefine a lower value in their national legislation.

4a. This Directive shall not affect national general contract law such as therules on the validity, formation or effect of a contract, insofar as general contract

law aspects are not regulated in this Directive.4b. This Directive shall not prevent traders from offering consumers contractualarrangements which go beyond the protection provided for in this Directive.

Article 4Level ofharmonisation

Member States may not maintain or introduce, in their national law, provisionsdiverging from those laid down in this Directive, including more or less stringent

provisions to ensure a different level of consumer protection unless otherwiseprovided in this Directive.

Chapter IIConsumer informationfor contracts other than off-premises or distance contracts

Article 5Information requirements for contracts other than off-premises or distance

contracts

1. Before the consumer is bound by any contract other than an off-premises ora distance contract, or any corresponding offer, the trader shall provide the


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consumer with the following information in a clear and comprehensible manner, ifnot already apparent from the context:

(a) the main characteristics of the goods or services, to the extent appropriate tothe medium and to thegoods or services;

(b) the identity of the trader, such as his trading name, the geographicaladdress at which he is established and his telephone number;

(c) the totalprice inclusive of taxes, or where the nature of the goods or servicesmeans that the price cannot reasonably be calculated in advance, the manner inwhich the price is calculated, as well as, where applicable, all additionalfreight, delivery or postal charges or, where those charges cannot reasonably

be calculated in advance, the fact that such additional charges may be payable;

(d) where applicable, the arrangements for payment, delivery, performance , thetime by which the trader undertakes to deliver the goods or to perform theservice, and the trader's complaint handling policy ;

(f) in addition to a reminder ofthe existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services andcommercial guarantees, where applicable;

(g) the duration of the contract where applicable or if the contract is ofindeterminate duration or is to be extended automatically, the conditions forterminating the contract;

(ia) the functionality, including applicable technical protection measures, ofdigital content, where applicable;

(ib) where applicable, any relevant interoperability of digital content withhardware and software that the trader is aware of or can reasonably beexpected to have been aware of.

2. Paragraph 1 shall also apply to contracts for the supply of water, gas,electricity, where they are not put up for sale in a limited volume or set quantity, todistrict heating and to digital content which is not supplied on a tangible medium.

3. Member States shall not be required to apply paragraph 1 to contracts which

involve day-to-day transactions and which are performed immediately at the time oftheir conclusion.

3a. Member States may adopt or maintain additional pre-contractualinformation requirements for contracts other than off-premises or distancecontracts.


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Chapter IIIConsumer information and withdrawal right for distance and off-premises contracts

Article 9

Information requirements for distance and off-premises contracts1. Before the consumer is bound by any distance or off-premises contract or

any corresponding offer, the trader shall provide the consumer with thefollowing information in a clearand comprehensible manner:

(a) the main characteristics of the goods or services, to the extent appropriate tothe medium and to the goods or services;

(b) the identity of the trader, such as his trading name;

(ba) the geographical address at which the trader is established and the trader'stelephone number, fax number and e-mail address, where available, toenable the consumer to contact the trader quickly and communicate withhim efficiently and, where applicable, the geographical address and identityof the trader on whose behalf he is acting;

(c) if different from the address provided in accordance with point (ba), thegeographical address of the place of business of the trader (and whereapplicable that of the trader on whose behalf he is acting) where the consumercan address any complaints;

(ca) the total price inclusive of taxes, or where the nature of the goods or servicesmeans that the price cannot reasonably be calculated in advance, themanner in which the price is calculated, as well as, where applicable, alladditional freight, delivery or postal charges and any other costs or, wherethose charges cannot reasonably be calculated in advance, the fact that suchadditional charges may be payable. In case of a contract of indeterminateduration or a contract containing a subscription, the total price shall includethe total costs per billing period. Where such contracts are charged at a fixedrate, the total price shall also mean the total monthly costs. Where the totalcosts cannot be reasonably calculated in advance, the manner in which the

price is calculated should be provided;

(cb) the cost of using the means of distance communication for the conclusion ofthe contract where that cost is calculated other than at the basic rate;

(d) the arrangements for payment, delivery, performance, the time by which thetrader undertakes to deliver the goods or to perform the services and, whereapplicable, the trader's complaint handling policy;

(e) where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with Article 14(1), as well as themodel withdrawal form set out in Annex I(B);


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(ea) where applicable, that the consumer will have to bear the cost of the returnof the goods in case of withdrawal and, for distance contracts, if the goods,by their nature, cannot normally be returned by post, the cost of returningthe goods;

(eb) where the consumer could exercise the right of withdrawal after having

made a request pursuant to Article 10(2a) or Article 11(4a), that theconsumer would be liable to pay the trader reasonable costs according toArticle 17(3);

(ec) where a right of withdrawal shall not apply in accordance with Article 19(1),the information that the consumer will not benefit from a right ofwithdrawal or, where applicable, the circumstances under which theconsumer loses his right of withdrawal;

(f) a reminder of the existence of a legal guarantee of conformity for goods;

(fa) the existence and the conditions of after sale customer assistance, after-sales

services and commercial guarantees where applicable;(fb) the duration of the contract where applicable or, if the contract is of

indeterminate duration or is to be extended automatically, the conditions forterminating the contract;

(fc) the minimum duration of the consumer's obligations under the contract,where applicable;

(fd) the existence and the conditions of deposits or other financial guarantees tobe paid or provided by the consumer at the request of the trader, whereapplicable;

(fe) the functionality, including applicable technical protection measures, ofdigital content, where applicable;

(ff) where applicable, any relevant interoperability of digital content withhardware and software that the trader is aware of or can reasonably beexpected to have been aware of;

(fg) the possibility of having recourse to an out-of-court complaint and redressmechanism, to which the trader is subject, and the methods for havingaccess to it, where applicable.

2. Paragraph 1 shall also apply to contracts for the supply of water, gas,

electricity, where they are not put up for sale in a limited volume or set quantity,district heating and digital content which is not supplied on a tangible medium.

3. In the case of a public auction, the information referred to in points (b), (ba)and (c) of paragraph 1 may be replaced by the equivalent details for the auctioneer.

4. The information in points (e), (ea) and (eb) of paragraph 1 may be providedby means of the Model instructions on withdrawal set out in Annex I(A). The trader


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shall be deemed to have fulfilled the information requirements in points (e), (ea)and (eb) of paragraph 1 if he has supplied these instructions, correctly filled in.

5. The information referred to in paragraph 1 shall form an integral part ofthe distance or off-premises contract and shall not be altered unless the partiesexpressly agree otherwise.

6. If the trader has not complied with the information requirements onadditional charges or other costs as referred to in point (ca) of paragraph 1, or onthe costs of returning the goods as referred to in points (ea) of paragraph 1, theconsumer shall not bear those charges or costs.

7. Member States may maintain or introduce in their national law linguisticrequirements regarding the contractual information, so as to ensure that suchinformation is easily understood by consumers.

8. The information requirements laid down in this Directive are in addition toinformation requirements contained in Directive 2006/123/EC of the European

Parliament and of the Council of 10 January 2006 and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 and do not preventMember States from imposing additional information requirements in accordancewith Directive 2006/123/EC and Directive 2000/31/EC.

Without prejudice to subparagraph 1, if a provision of Directive 2006/123/EC orDirective 2000/31/EC on the content and the manner in which the information is tobe provided conflicts with a provision of this Directive, the provision of this

Directive shall prevail.

9. As regards compliance with the information requirements referred to in thisChapter, the burden of proof shall be upon the trader.

Article 10Formal requirements for off-premises contracts

1. With respect to off-premises contracts, the information provided for inArticle 9 shall be given to the consumer on paper or, if the consumer agrees, onanother durable medium. That information shall be legible and in plain, intelligiblelanguage.

2. The trader shall provide the consumer with a copy of the signed contract orthe confirmation of the contract on paper or, if the consumer agrees, on a differentdurable medium, including, where applicable, the confirmation of the consumersconsent and acknowledgement according to point (j) of Article 19(1).

2a. Where a consumer wishes the performance of services or the supply ofwater, gas, electricity, where they are not put up for sale in a limited volume or setquantity or district heating to begin during the withdrawal period provided for in

Article 12(2), the trader shall require that the consumer makes such an expressrequest on a durable medium.

2b. With respect to off-premises contracts where the consumer has explicitlyrequested the services of the trader for the purpose of carrying out repair or


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maintenance for which the trader and the consumer immediately perform theircontractual obligations and where the payment to be made by the consumer doesnot exceed EUR 200:

(a) the trader shall provide the consumer with the information referred to in points (b) and (ba) of Article 9(1) and information about the price or the

manner in which the price is calculated together with an estimate of the totalprice, on paper or, if the consumer agrees, on another durable medium. Thetrader shall provide the information referred to in points (a), (e) and (ec) of

Article 9(1), but may refrain from providing it on paper or another durablemedium if the consumer expressly agrees;

(b) the confirmation of the contract provided in accordance with paragraph 2shall contain the information provided for in Article 9(1).

Member States may decide not to apply this paragraph.

3. Member States shall not impose any further formal pre-contractual

information requirements for the fulfilment of the information obligations laiddown in this Directive.

Article 11Formal requirements for distance contracts

1. With respect to distance contracts, the information provided for in Article 9 shall be given or made available to the consumer in a way appropriate to the meansof distance communication used in plain and intelligible language and, insofar as itis provided on a durable medium, it shall be legible.

1a. If a distance contracts to be concluded by electronic means places the

consumer under an obligation to make a payment, the trader shall make theconsumer aware in a clear and prominent manner, and directly before theconsumer places his order, of the information provided for in points (a), (ca), (fb)and (fc) of Article 9(1).

The trader shall ensure that the consumer, when placing his order, explicitlyconfirms that the order implies an obligation to pay. If placing an order entailsactivating a button or a similar function, the button or similar function shall belabelled in an easily legible manner only with the words "order with duty of

payment" or a corresponding unambiguous formulation indicating that placing theorder entails an obligation to make a payment to the trader. If this subparagraph isnot complied with, the consumer shall not be bound by the contract or order.

2a. Trading websites shall indicate clearly and legibly at the latest at thebeginning of the ordering process whether any delivery restrictions apply and whatmeans of payment are accepted.

3. If the contract is concluded through a medium which allows limited space ortime to display the information, the trader shall provide , on that particular medium

prior to the conclusion of such a contract , at least the pre-contractual information


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regarding the main characteristics of the good or service, the identity of the trader,the total price, the right of withdrawal, the duration of the contract and, if thecontract is of indeterminate duration, the conditions for terminating the contract,referred to in points (a), (b), (ca), (e) and (fb) of Article 9(1). The other informationreferred to in Article 9 shall be provided by the trader to the consumer in anappropriate way in accordance with paragraph 1 of this Article.

3a. Without prejudice to paragraph 3, if the trader makes a telephone call to theconsumer with a view to concluding a distance contract, he shall disclose hisidentity and, where applicable, the identity of the person, on whose behalf he makesthat a phone call, and the commercial purpose of the call at the beginning of theconversation with the consumer.

3b. Where a distance contract is to be concluded by telephone, Member Statesmay provide that the trader has to confirm the offer to the consumer who iscommitted only once he has signed the offer or has sent his written consent.

Member States may also provide that such confirmations have to be made on adurable medium.

4. The trader shall provide the consumer with confirmation of the contractconcluded, including, where applicable, of the consent and acknowledgement of theconsumer according to point (j) of Article 19(1), andall the information referred toin Article 9(1), on a durable medium, in reasonable time after the conclusion of thedistance contract, and at the latest at the time of the delivery of the goods or beforethe performance of the service begins, unless the information has already been givento the consumer prior to the conclusion ofthe distance contract on a durable medium.

4a. Where a consumer wishes the performance of services, or the supply ofwater, gas, electricity, where they are not put up for sale in a limited volume or setquantity or district heating to begin during the withdrawal period provided for in

Article 12(2), the trader shall require that the consumer makes such an expressrequest.

4b. This Article shall be without prejudice to the provisions on the conclusion ofe-contracts and the placing of e-orders as set out by Articles 9 and 11 of Directive2000/31/EC of the European Parliament and of the Council.

5. Member States shall not impose any further formal pre-contractualinformation requirements for the fulfilment of the information obligations laiddown in this Directive.

Article 12

Right ofwithdrawal 1. Subject to exceptions referred to in Article 19, the consumer shall have a

period of14 days to withdraw from a distance or off-premises contract, withoutgiving any reason , and without incurring any costs other than those foreseen in

Article 16(2) and Article 17.

2. Without prejudice to Article 13, the withdrawal period referred to inparagraph 1 shall expire after 14 days from:


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(a) in the case of service contracts, the day of the conclusion of the contract;

(b) in the case of sales contracts, the day on which the consumer or a third partyother than the carrier and indicated by the consumer acquires physical

possession of the goods or:

(i) in the case of multiple goods ordered by the consumer in one order anddelivered separately, the day on which the consumer or a third partyother than the carrier and indicated by the consumer acquires physical

possession of the last good;

(ii) in the case of delivery of a good consisting of multiple lots or pieces,the day on which the consumer or a third party other than the carrierand indicated by the consumer acquires physical possession of the lastlot or piece;

(iii) in the case of contracts for regular delivery of goods during definedperiod of time, the day on which the consumer or a third party other

than the carrier and indicated by the consumer acquires physicalpossession of the first good;

(c) in the case of contracts for the supply of water, gas, electricity, where theyare not put up for sale in a limited volume or set quantity, district heatingand digital content which is not supplied on a tangible medium, the day ofthe conclusion of the contract.

4. The Member States shall not prohibit the parties from performing theircontractualobligations during the withdrawal period. Nevertheless, in the case of

off-premises contracts, Member States may maintain existing national legislationprohibiting the trader from collecting the payment during the given period after theconclusion of the contract.

Article 13Omission of information on the right of withdrawal

1. If the trader has not provided the consumer with the information on the right ofwithdrawal in breach ofpoint (e) of Article 9(1), the withdrawal period shall expire12 months from the end of the initial withdrawal period, as determined inaccordance with Article 12(2).

2. If the trader has provided the consumer with the information provided for in paragraph 1 within 12 months from the day referred to in Article 12(2), thewithdrawal period shall expire 14 days upon which the day where the consumerreceives the information.

Article 14Exercise of the right of withdrawal

1. Before the expiry of the withdrawal period, the consumer shall inform thetrader of his decision to withdraw. For this purpose, the consumer may either:


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(a) use the model withdrawal form as set out in Annex I(B); or

(b) make any other unequivocal statement setting out his decision to withdraw.

Member States shall not provide for any formal requirements applicable to themodelwithdrawal form other then those set out in Annex I(B).

1a. The withdrawal period referred to in Article 12(2) and Article 13 is met if thecommunication concerning the exercise of the right of withdrawal is sent by theconsumer before that period has expired.

2. The trader may, in addition to the possibilities referred to in paragraph 1, givethe option to the consumer to electronically fill in and submit either the modelwithdrawal form set out in Annex I(B) or any other unequivocal statement on thetrader's website. In those cases the trader shall communicate to the consumer anacknowledgement of receipt of such a withdrawal on a durable medium withoutdelay.

2a. The burden of proof of exercising the right of withdrawal in accordancewith this Article shall be incumbent on the consumer.

Article 15Effects of withdrawal

The exercise of the right of withdrawal shall terminate the obligations of the parties:

(a) to perform the distance or off-premises contract, or

(b) to conclude the distance oroff-premises contract, in cases where an offer wasmade by the consumer.

Article 16Obligations of the trader in case of withdrawal

1. The trader shall reimburse all payments received from the consumer,including, if applicable, the costs of delivery without undue delay and in any eventnot later than 14 days from the day on which he is informed of the consumersdecision to withdraw in accordance with Article 14.

The trader shall carry out the reimbursement referred to in the first subparagraphusing the same means of payment as the consumer used for the initial transaction,unless the consumer has expressly agreed otherwise and provided that theconsumer does not incur any fees as a result of reimbursement.

2a. Notwithstanding paragraph 1, the trader shall not be required to reimbursethe supplementary costs, if the consumer has expressly opted for a type of deliveryother then least expensive type of standard delivery offered by the trader.

3. Unless the trader has offered to collect the goods himself, forsales contracts,the trader may withhold the reimbursement until he has received the goods back, orthe consumer has supplied evidence of having sent back the goods, whichever is theearliest.


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Article 17Obligations of the consumer in case of withdrawal

1. For distance or off-premises contracts , the consumer shall send back thegoods or hand them over to the trader or to a person authorised by the trader to receivethem, without undue delay and in any event not later than 14 days from the day on

which he communicates his decision to withdraw to the trader in accordance withArticle 14, unless the trader has offered to collect the goods himself. The deadline ismet if the goods are sent back by the consumer before the period of 14 days hasexpired.

The consumer shall only bear the direct cost of returning the goods unless the traderhas agreed to bear them or the trader failed to inform the consumer that theconsumer has to bear them.

In the case of off-premises contracts where the goods have been delivered to theconsumers home at the time of the conclusion of the contract, the trader shall athis own expense collect the goods if, by their nature, those goods cannot be

normally returned by post.2. The consumer shall only be liable for any diminished value of the goodsresulting from the handling other than what is necessary to establish the nature,characteristics and functioning of the goods. The consumer shall in any eventnot beliable for diminished value of the goods where the trader has failed to provide noticeof the right of withdrawalin accordance withpoint (e) ofArticle 9(1).

2a. Where a consumer exercises the right of withdrawal after having made arequest in accordance with Article 10(2a) or Article 11(4a), the consumer shall payto the trader an amount which is in proportion to what has been provided until thetime the consumer has informed the trader of the exercise of the right of

withdrawal, in comparison with the full coverage of the contract. The proportionateamount to be paid by the consumer to the trader shall be calculated on the basis ofthe total price agreed in the contract. If the total price is excessive, the

proportionate amount shall be calculated on the basis of the market value of whathas been provided.

2b. The consumer shall bear no cost for

(a) services performed, the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or district heatingsupplied, , in full or in part, during the withdrawal period, where:.

(i) the trader has failed to provide information in accordance with points(e) or (eb) of Article 9(1); or

(ii) where the consumer has not expressly requested performance to beginduring the withdrawal period in accordance with Article 10(2a) and

Article 11(4a); or

(b) the supply, in full or in part, of digital content which is not supplied on atangible medium where:


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(i) the consumer has not given his prior express consent to the beginningof the performance before the end of the 14-day period referred to in

Article 12, or

(ii) the consumer did not acknowledge that he loses his right of withdrawalwhen giving his consent, or

(iii) the trader has failed to provide the confirmation in accordance withArticle 11(4).

2c. Except as provided for in Article 16(2) and in this Article, the consumershall not incur any liability through the exercise of the right of withdrawal.

Article 18Effects of the exercise of the right of withdrawal on ancillary contracts

1. Without prejudice to Article 15 of Directive 2008/48/EC, if the consumer

exercises his right of withdrawal from a distance or an off-premises contract inaccordance with Articles 12 to 17, any ancillary contracts shall be automaticallyterminated, without any costs for the consumer that are not provided for in Article16(2) and in Article 17 of this Directive.

2. The Member States shall lay down detailed rules on the termination of suchcontracts.

Article 19Exceptions from the right of withdrawal

1. Member States shall not provide forthe right of withdrawal set out in Articles12 to 18 in respect of distance and off-premises contracts as regards the following:

(a) service contracts after the service has been fully performed if theperformance has begun with the consumer's prior express consent, and withthe acknowledgement that he will lose his right of withdrawal once thecontract is fully performed by the trader;

(b) the supply of goods or services for which the price is dependent onfluctuations in the financial market which cannot be controlled by the traderand which may occur within the withdrawal period;

(c) the supply of goods made to the consumer's specifications or clearlypersonalized;

(ca) the supply of goods which are liable to deteriorate or expire rapidly;

(cb) the supply of sealed goods which are not suitable for return due to healthprotection or hygiene reasons and were unsealed after delivery;

(cc) the supply of goods which are, after delivery, according to their nature,inseparably mixed with other items;


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(d) the supply of alcoholic beverages, the price of which has been agreed upon atthe time of the conclusion of the sales contract, the delivery of which can onlytake place after 30 days and the actual value of which is dependent onfluctuations in the market which cannot be controlled by the trader;

(da) contracts for which the consumer has specifically requested the trader to visithim for the purpose ofcarrying out urgent repairs ormaintenance.Ifon theoccasion of such visit, the trader provides services in addition to thosespecifically requested by the consumer or goods other than replacement partsnecessarily used in carrying outthe maintenance or in making the repairs, theright of withdrawal shouldapply to those additional services or goods.

(e) the supply of sealed audio or sealed video recordings or sealed computersoftware which were unsealed after delivery;

(f) the supply of a newspaper, periodical or magazine with the exception ofsubscription contracts for the supply of such publications;

(g) contracts concluded at a public auction;

(h) the provision of accommodation other than for residential purpose, transportof goods, car rental services, catering orservices related to leisure activities ifthe contract provides for a specific date or period of performance;

(i) the supply of digital content which is not supplied on a tangible medium ifthe performance has begun with the consumer's prior express consent andhis acknowledgment that he hereby loses his right of withdrawal.

Chapter IVOther consumer rights

Article 21Scope

1. Articles 22 and 23 shall apply to sales contracts. Those Articles shall notapply to contracts for the supply of water, gas, electricity, where they are not put up

for sale in a limited volume or set quantity, district heating or the supply of digitalcontent other than on a tangible medium.

2. Articles 22b, 28a and 28b shall apply to sales and services contracts and tocontracts for the supply ofwater, gas, electricity, district heating and digital content.

Article 22Delivery

1. Unless the parties have agreed otherwise on the time of delivery, the tradershall deliver the goods by transferring thephysicalpossession or controlof the goods


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to the consumer without undue delay after, but not later than 30 days from theconclusion of the contract.

2. Where the trader has failed to fulfil his obligation to deliver the goods atthe time agreed on with the consumer or in time in accordance with

paragraph 1, the consumer shall call upon him to make the delivery within a period

appropriate to the circumstances. If the trader fails to deliver the goods within theappropriate time, the consumer shall be entitled to terminate the contract.

The first subparagraph shall not be applicable to sales contracts where the traderhas refused to deliver the goods or where the delivery period is essential taking intoaccount all the circumstances attending the conclusion of the contract or where theconsumer informs the trader, prior to the conclusion of the contract, that deliveryby or on a specified date is essential. In those cases, if the trader fails to deliver the

goods at the time agreed upon with the consumer or in accordance with paragraph1, the consumer shall be entitled to terminate the contract immediately.

2a. Upon termination of the contract, the trader shall, without undue delay,

reimburse all sums paid under the contract.3. In addition to the termination of the contract in accordance with paragraph2, the consumer may have recourse to other remedies provided by national law.

Article 22aFees for the use of means of payment

Member States shall prohibit traders from charging consumers, in respect of theuse of a given means of payment, fees that exceed the cost borne by the trader forthe use of such means.

Article 23Passing of risk

In contracts where the trader dispatches the goods to the consumer, the risk of lossof or damage to the goods shall pass to the consumer when he or a third party

indicated by the consumerand other than the carrier has acquired the physicalpossession of the goods. The risk shall pass to the consumer upon delivery to thecarrier if the carrier was commissioned by the consumer to carry the goods and thatchoice was not offered by the trader, without prejudice to the rights of the consumeragainst the carrier.

Article 28aCommunication by telephone

Member States shall ensure that in the event that the trader operates a telephoneline for the purpose of contacting him in relation to the contract concluded, theconsumer - when contacting the trader - is not be bound to pay more than the basicrate. This shall be without prejudice to the right of telecommunication services

providers to charge for such calls.


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Article 28bAdditional payments

Before the consumer is bound by the contract or offer, the trader shall seek theexpress consent of the consumer to any extrapayment in addition to the remunerationforeseen for the trader's main contractual obligation. If the trader has not obtained the

consumer's express consent but has inferred it by using default options which theconsumer is required to reject in order to avoid the additional payment, the consumershall be entitled to reimbursement of this payment.

Chapter VIGeneral provisions

Article 41

Enforcement1. Member States shall ensure that adequate and effective means exist to ensurecompliance with this Directive.

2. The means referred to in paragraph 1 shall include provisions whereby one ormore of the following bodies, as determined by national law, may take action undernational law before the courts or before the competent administrative bodies to ensurethat the national provisions for the implementation of this Directive are applied:

(a) public bodies or their representatives;

(b) consumer organisations having a legitimate interest in protecting consumers;

(c) professional organisations having a legitimate interest in acting.

Article 42Penalties

1. Member States shall lay down the rules on penalties applicable toinfringements of the national provisions adopted pursuant to this Directive and shalltake all measures necessary to ensure that they are implemented. The penalties

provided for must be effective, proportionate and dissuasive.

2. Member States shall notify those provisions to the Commission by the date

specified in the first subparagraph of Article 46(1) at the latest and shall notify itwithout delay of any subsequent amendment affecting them.

Article 43Imperative nature of the Directive

If the law applicable to the contract is the law of a Member State, consumers may notwaive the rights conferred on them by the transposition of this Directive intonational law.


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Any contractual terms which directly or indirectly waive or restrict the rightsresulting from this Directive shall not be binding on the consumer.

Article 44Information

Member States shall take appropriate measures to inform consumers and traders ofthe national provisions transposing this Directive and shall, where appropriate,encourage traders and code owners to inform consumers of their codes of conduct.

Article 45Inertia selling

The consumer shall be exempted from the provision of any consideration in cases ofunsolicited supply ofgoods, water, gas, electricity, district heating or digital contentor unsolicited provision ofa service, prohibited by Article 5(5) and point 29 of AnnexI of Directive 2005/29/EC. In such cases, the absence of a response from theconsumer following such an unsolicited supply shall not constitute consent.

Article 46Transposition

1. Member States shall adopt and publish, by at the latest, the laws,regulations and administrative provisions necessary to comply with this Directive.They shall forthwith communicate to the Commission the text of these provisionsmeasures in the form of documents. The Commission shall make use of thesedocuments for the purposes of the report referred to in Article 46b .

They shall apply those measures from .

When Member States adopt those measures, they shall contain a reference to thisDirective or be accompanied by such a reference on the occasion of their officialpublication. Member States shall determine how such reference is to be made.

2a. The provisions of this Directive sh

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