Directive 2011/83 EU of 25 October 2011 on Consumer Rights.

March 4th, 2014 § 0 comments

ELECTRONIC COMMERCE DIRECTIVE : TO A LEVEL PLAYING FIELD IN THE EUROPEAN UNION

 

Unlike its title suggests, the Directive on Consumer Rights does not give a complete set of consumer rights, but mainly lays down information requirements to be observed by the trader in relation with distance contracts and off-premises contracts and replace the previous directives on these contracts. The directive also strengthens certain rights of the consumer, such as the right to withdraw from the contact. In this summary the main provisions on distance contracts and more in particular e-commerce contracts will be dealt with. The Directive does not apply to e.g. social services, healthcare, gambling, financial services, contracts for the creation, acquisition and transfer of immovable property, construction of new buildings, substantial reconstruction, package travel, time share, notarial services, foodstuffs, beverages or other goods for current private consumption passenger transport services, sale through automatic vending machines.

Distance contracts:

 Distance contracts are contracts concluded between a trader and a consumer under an organized sales or services-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded (e.g. on-line, telephone, fax, sms).

Maximum harmonization:

 The Directive aims at a high level of consumer protection. EU Member States with some exceptions have to offer the same high level of protection to the consumer in relation to contracts covered by the directive.  In this way a level playing field and one European “cross border”  market is created for e-commerce and consumer confidence is boosted.

However other directives remain equally relevant.

Main information requirements: 

  • Extensive contact details of the trader or service provider, such as registered address, geographical address,      registration number, telephone, fax, e-mail address etc.;
  • Total price of the goods or services and clear indication of all other costs or charges;
  • If the price cannot be calculated in advance, manner  of calculation;
  • Information on right and exercise of right of withdrawal and limitations or loss of such right. Here the trader or      service provider may use the standard forms annexed to the Directive;
  • Information of the costs for returning the goods, which are normally for the account of the consumer;
  • Explicit acknowledgement by the consumer that the order implies an obligation to pay (“order with obligation to      pay”).
  • At the beginning of the ordering process: any delivery restrictions and which means of payment are accepted;
  • Information if possible to be provided on a durable medium;

 

(Exercise of the) right of withdrawal:

 

The consumer is entitled to with draw from the contract without any reason during a period of 14 calendar days as from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the goods of delivery and in the event of service contracts as from the day of the conclusion of the contract;  This right of withdrawal does not apply to the sale of certain products such as perishable goods, digital content, tailor made products, sealed audio or video recordings, newspapers, periodicals, magazines, provision of accommodation for residential purposes, transport of goods, car rental services, catering of services to leisure activities if the date provides for a specific date or period of performance. If the trader failed to comply with its obligations to inform the consumer on his right of withdrawal, the period for exercising his right of withdrawal is extended to 12 calendar months or if the trader still complies with its information requirements, the withdrawal period shall expire 14 days after the day upon which the consumer receives that information.  Before the expiry of the withdrawal period, the consumer shall inform the trader of his decision to withdraw from the contract. For this purpose, the consumer may either:

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

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

Effect of exercise of right of withdrawal:

In case of enforcement of the right of withdrawal the agreement terminates. The trader shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract. The trader shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract. Unless the trader has offered to collect the goods himself, with regard to sales contracts, the trader may withhold the reimbursement until he has received the goods back, or until the consumer has supplied evidence of having sent back the goods, whichever is the earliest.

The consumer shall send back the goods or hand them over to the trader or to a person authorised by the trader to receive the goods, without undue delay and in any event not later than 14 days from the day on which he has communicated his decision to withdraw from the contract to the trader. The consumer shall only bear the direct cost of returning the goods unless the trader has agreed to bear them or the trader failed to inform the consumer that the consumer has to bear them. The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. The consumer shall in any event not be liable for diminished value of the goods where the trader has failed to provide notice of the right of withdrawal.

Delivery and passing of risk:

Unless the parties have agreed otherwise on the time of delivery, the trader shall deliver the goods by transferring the physical possession or control of the goods to the consumer without undue delay, but not later than 30 days from the conclusion of the contract. . Upon termination of the contract, the trader shall, without undue delay, reimburse all sums paid under the contract. In contracts where the trader dispatches the goods to the consumer, the risk of loss of or damage to the goods shall pass to the consumer when he or a third party indicated by the consumer and other than the carrier has acquired the physical possession of the goods. However, the risk shall pass to the consumer upon delivery to the carrier if the carrier was commissioned by the consumer to carry the goods and that choice was not offered by the trader, without prejudice to the rights of the consumer against the carrier.

The new rules should enter into force by means of implementation into national law within all EU Member States before or on 13 June 2014.

 Member States had to adopt national legislation in conformity with the directive before or on ultimately 13 December 2013 and this national legislation has to enter into force on or before ultimately 13 June 2014.

 

 

 

Marinus Vromans

Contact: mv@vdelegal.be

VDE Legal

Brussels-Antwerp-Charleroi

 

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