Contents
- THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UN…
- I Subject matter, definitions and scope25 changes
- II Consumer information for contracts other than distance or off-premises contracts11 changes
- III Consumer information and right of withdrawal for distance and off-premises contracts34 changes
- IIIa Rules concerning financial services contracts concluded at a distance1 change
- IV Other consumer rights
- V General provisions6 changes
- VI Final provisions
- I 7 changes
- II
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,Having regard to the proposal from the European Commission,Having regard to the opinion of the European Economic and Social Committeenote,Having regard to the opinion of the Committee of the Regionsnote,Acting in accordance with the ordinary legislative procedurenote,Whereas:
(1)Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premisesnote and Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contractsnote lay down a number of contractual rights for consumers.
(2)Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules. That review has shown that it is appropriate to replace those two Directives by a single Directive. This Directive should therefore lay down standard rules for the common aspects of distance and off-premises contracts, moving away from the minimum harmonisation approach in the former Directives whilst allowing Member States to maintain or adopt national rules in relation to certain aspects.
(3)Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through the measures adopted pursuant to Article 114 thereof.
(4)In accordance with Article 26(2) TFEU, the internal market is to comprise an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the 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 last few years, the growth in cross-border distance sales has been limited. This discrepancy is particularly significant for Internet sales for which the potential for further growth is high. The cross-border potential of contracts negotiated away from business premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry. Compared with the growth of domestic direct selling over the last few years, in particular in the services sector, for instance utilities, the number of consumers using this channel for cross-border purchases has remained flat. Responding to increased business opportunities in many Member States, small and medium-sized enterprises (including individual traders) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions. Therefore the full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and a better functioning of the business-to-consumer internal market.
(6)Certain disparities create significant internal market barriers affecting traders and consumers. Those disparities increase compliance costs to traders wishing to engage in the cross-border sale of goods or provision of services. Disproportionate fragmentation also undermines consumer confidence in the internal market.
(7)Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders. Both consumers and traders should be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Union. The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. Those barriers can only be eliminated by establishing uniform rules at Union level. Furthermore consumers should enjoy a high common level of protection across the Union.
(8)The regulatory aspects to be harmonised should only concern contracts concluded between traders and consumers. Therefore, this Directive should not affect national law in the area of contracts relating to employment, contracts relating to succession rights, contracts relating to family law and contracts relating to the incorporation and organisation of companies or partnership agreements.
(9)This Directive establishes rules on information to be provided for distance contracts, off-premises contracts and contracts other than distance and off-premises contracts. This Directive also regulates the right of withdrawal for distance and off-premises contracts and harmonises certain provisions dealing with the performance and some other aspects of business-to-consumer contracts.
(10)This Directive should be without prejudice to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)note.
(11)This Directive should be without prejudice to Union provisions relating to specific sectors, such as medicinal products for human use, medical devices, privacy and electronic communications, patients’ rights in cross-border healthcare, food labelling and the internal market for electricity and natural gas.
(12)The information requirements provided for in this Directive should complete the information requirements of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal marketnote and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’)note. Member States should retain the possibility to impose additional information requirements applicable to service providers established in their territory.
(13)Member States should remain competent, in accordance with Union law, to apply the provisions of this Directive to areas not falling within its scope. Member States may therefore maintain or introduce national legislation corresponding to the provisions of this Directive, or certain of its provisions, in relation to contracts that fall outside the scope of this Directive. For instance, Member States may decide to extend the application of the rules of this Directive to legal persons or to natural persons who are not consumers within the meaning of this Directive, such as non-governmental organisations, start-ups or small and medium-sized enterprises. Similarly, Member States may apply the provisions of this Directive to contracts that are not distance contracts within the meaning of this Directive, for example because they are not concluded under an organised distance sales or service-provision scheme. Moreover, Member States may also maintain or introduce national provisions on issues not specifically addressed in this Directive, such as additional rules concerning sales contracts, including in relation to the delivery of goods, or requirements for the provision of information during the existence of a contract.
(14)This Directive should not affect national law in the area of contract law for contract law aspects that are not regulated by this Directive. Therefore, this Directive should be without prejudice to national law regulating for instance the conclusion or the validity of a contract (for instance in the case of lack of consent). Similarly, this Directive should not affect national law in relation to the general contractual legal remedies, the rules on public economic order, for instance rules on excessive or extortionate prices, and the rules on unethical legal transactions.
(15)This Directive should not harmonise language requirements applicable to consumer contracts. Therefore, Member States may maintain or introduce in their national law language requirements regarding contractual information and contractual terms.
(16)This Directive should not affect national laws on legal representation such as the rules relating to the person who is acting in the name of the trader or on his behalf (such as an agent or a trustee). Member States should remain competent in this area. This Directive should apply to all traders, whether public or private.
(17)The definition of consumer should cover natural persons who are acting outside their trade, business, craft or profession. However, in the case of dual purpose contracts, where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered as a consumer.
(18)This Directive does not affect the freedom of Member States to define, in conformity with Union law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with State aid rules, and which specific obligations they should be subject to.
(19)Digital content means data which are produced and supplied in digital form, such as computer programs, applications, games, music, videos or texts, irrespective of whether they are accessed through downloading or streaming, from a tangible medium or through any other means. Contracts for the supply of digital content should fall within the scope of this Directive. If digital content is supplied on a tangible medium, such as a CD or a DVD, it should be considered as goods within the meaning of this Directive. Similarly to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, contracts for digital content which is not supplied on a tangible medium should be classified, for the purpose of this Directive, neither as sales contracts nor as service contracts. For such contracts, the consumer should have a right of withdrawal unless he has consented to the beginning of the performance of the contract during the withdrawal period and has acknowledged that he will consequently lose the right to withdraw from the contract. In addition to the general information requirements, the trader should inform the consumer about the functionality and the relevant interoperability of digital content. The notion of functionality should refer to the ways in which digital content can be used, for instance for the tracking of consumer behaviour; it should also refer to the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding. The notion of relevant interoperability is meant to describe the information regarding the standard hardware and software environment with which the digital content is compatible, for instance the operating system, the necessary version and certain hardware features. The Commission should examine the need for further harmonisation of provisions in respect of digital content and submit, if necessary, a legislative proposal for addressing this matter.
(20)The definition of distance contract should cover all cases where a contract is concluded between the trader and the consumer under an organised distance sales or service-provision scheme, with the exclusive use of one or more means of distance communication (such as mail order, Internet, telephone or fax) up to and including the time at which the contract is concluded. That definition should also cover situations where the consumer visits the business premises merely for the purpose of gathering information about the goods or services and subsequently negotiates and concludes the contract at a distance. By contrast, a contract which is negotiated at the business premises of the trader and finally concluded by means of distance communication should not be considered a distance contract. Neither should a contract initiated by means of distance communication, but finally concluded at the business premises of the trader be considered a distance contract. Similarly, the concept of distance contract should not include reservations made by a consumer through a means of distance communications to request the provision of a service from a professional, such as in the case of a consumer phoning to request an appointment with a hairdresser. The notion of an organised distance sales or service-provision scheme should include those schemes offered by a third party other than the trader but used by the trader, such as an online platform. It should not, however, cover cases where websites merely offer information on the trader, his goods and/or services and his contact details.
(21)An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader, for example at the consumer’s home or workplace. In an off-premises context, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit. The definition of an off-premises contract should also include situations where the consumer is personally and individually addressed in an off-premises context but the contract is concluded immediately afterwards on the business premises of the trader or through a means of distance communication. The definition of an off-premises contract should not cover situations in which the trader first comes to the consumer’s home strictly with a view to taking measurements or giving an estimate without any commitment of the consumer and where the contract is then concluded only at a later point in time on the business premises of the trader or via means of distance communication on the basis of the trader’s estimate. In those cases, the contract is not to be considered as having been concluded immediately after the trader has addressed the consumer if the consumer has had time to reflect upon the estimate of the trader before concluding the contract. Purchases made during an excursion organised by the trader during which the products acquired are promoted and offered for sale should be considered as off-premises contracts.
(22)Business premises should include premises in whatever form (such as shops, stalls or lorries) which serve as a permanent or usual place of business for the trader. Market stalls and fair stands should be treated as business premises if they fulfil this condition. Retail premises where the trader carries out his activity on a seasonal basis, for instance during the tourist season at a ski or beach resort, should be considered as business premises as the trader carries out his activity in those premises on a usual basis. Spaces accessible to the public, such as streets, shopping malls, beaches, sports facilities and public transport, which the trader uses on an exceptional basis for his business activities as well as private homes or workplaces should not be regarded as business premises. The business premises of a person acting in the name or on behalf of the trader as defined in this Directive should be considered as business premises within the meaning of this Directive.
(23)Durable media should enable the consumer to store the information for as long as it is necessary for him to protect his interests stemming from his relationship with the trader. Such media should include in particular paper, USB sticks, CD-ROMs, DVDs, memory cards or the hard disks of computers as well as e-mails.
(24)A public auction implies that traders and consumers attend or are given the possibility to attend the auction in person. The goods or services are offered by the trader to the consumer through a bidding procedure authorised by law in some Member States, to offer goods or services at public sale. The successful bidder is bound to purchase the goods or services. The use of online platforms for auction purposes which are at the disposal of consumers and traders should not be considered as a public auction within the meaning of this Directive.
(25)Contracts related to district heating should be covered by this Directive, similarly to the contracts for the supply of water, gas or electricity. District heating refers to the supply of heat, inter alia, in the form of steam or hot water, from a central source of production through a transmission and distribution system to multiple buildings, for the purpose of heating.
(26)Contracts related to the transfer of immovable property or of rights in immovable property or to the creation or acquisition of such immovable property or rights, contracts for the construction of new buildings or the substantial conversion of existing buildings as well as contracts for the rental of accommodation for residential purposes are already subject to a number of specific requirements in national legislation. Those contracts include for instance sales of immovable property still to be developed and hire-purchase. The provisions of this Directive are not appropriate to those contracts, which should be therefore excluded from its scope. A substantial conversion is a conversion comparable to the construction of a new building, for example where only the façade of an old building is retained. Service contracts in particular those related to the construction of annexes to buildings (for example a garage or a veranda) and those related to repair and renovation of buildings other than substantial conversion, should be included in the scope of this Directive, as well as contracts related to the services of a real estate agent and those related to the rental of accommodation for non-residential purposes.
(27)Transport services cover passenger transport and transport of goods. Passenger transport should be excluded from the scope of this Directive as it is already subject to other Union legislation or, in the case of public transport and taxis, to regulation at national level. However, the provisions of this Directive protecting consumers against excessive fees for the use of means of payment or against hidden costs should apply also to passenger transport contracts. In relation to transport of goods and car rental which are services, consumers should benefit from the protection afforded by this Directive, with the exception of the right of withdrawal.
(28)In order to avoid administrative burden being placed on traders, Member States may decide not to apply this Directive where goods or services of a minor value are sold off-premises. The monetary threshold should be established at a sufficiently low level as to exclude only purchases of small significance. Member States should be allowed to define this value in their national legislation provided that it does not exceed EUR 50. Where two or more contracts with related subjects are concluded at the same time by the consumer, the total cost thereof should be taken into account for the purpose of applying this threshold.
(29)Social services have fundamentally distinct features that are reflected in sector-specific legislation, partially at Union level and partially at national level. Social services include, on the one hand, services for particularly disadvantaged or low income persons as well as services for persons and families in need of assistance in carrying out routine, everyday tasks and, on the other hand, services for all people who have a special need for assistance, support, protection or encouragement in a specific life phase. Social services cover, inter alia, services for children and youth, assistance services for families, single parents and older persons, and services for migrants. Social services cover both short-term and long-term care services, for instance services provided by home care services or provided in assisted living facilities and residential homes or housing (‘nursing homes’). Social services include not only 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 Directive are not appropriate to social services which should be therefore excluded from its scope.
(30)Healthcare requires special regulations because of its technical complexity, its importance as a service of general interest as well as its extensive public funding. Healthcare is defined in Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcarenote as ‘health services provided by health professionals to patients to assess, maintain or restore their state of health, including the prescription, dispensation and provision of medicinal products and medical devices’. Health professional is defined in that Directive as a doctor of medicine, a nurse responsible for general care, a dental practitioner, a midwife or a pharmacist within the meaning of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualificationsnote or another professional exercising activities in the healthcare sector which are restricted to a regulated profession as defined in point (a) of Article 3(1) of Directive 2005/36/EC, or a person considered to be a health professional according to the legislation of the Member State of treatment. The provisions of this Directive are not appropriate to healthcare which should be therefore excluded from its scope.
(31)Gambling should be excluded from the scope of this Directive. Gambling activities are those which involve wagering at stake with pecuniary value in games of chance, 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.
(32)The existing Union legislation, inter alia, relating to consumer financial services, package travel and timeshare contains numerous rules on consumer protection. For this reason, this Directive should not apply to contracts in those areas. With regard to financial services, Member States should be encouraged to draw inspiration from existing Union legislation in that area when legislating in areas not regulated at Union level, in such a way that a level playing field for all consumers and all contracts relating to financial services is ensured.
(34)The trader should give the consumer clear and comprehensible information before the consumer is bound by a distance or off-premises contract, a contract other than a distance or an off-premises contract, or any corresponding offer. In providing that information, the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee. However, taking into account such specific needs should not lead to different levels of consumer protection.
(36)In the case of distance contracts, the information requirements should be adapted to take into account the technical constraints of certain media, such as the restrictions on the number of characters on certain mobile telephone screens or the time constraint on television sales spots. In such cases the trader should comply with a minimum set of information requirements and refer the consumer to another source of information, for instance by providing a toll free telephone number or a hypertext link to a webpage of the trader where the relevant information is directly available and easily accessible. As to the requirement to inform the consumer of the cost of returning goods which by their nature cannot normally be returned by post, it will be considered to have been met, for example, if the trader specifies one carrier (for instance the one he assigned for the delivery of the good) and one price concerning the cost of returning the goods. Where the cost of returning the goods cannot reasonably be calculated in advance by the trader, for example 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 will be payable, and that this cost may be high, along with a reasonable estimation of the maximum cost, which could be based on the cost of delivery to the consumer.
(37)Since in the case of distance sales, the consumer is not able to see the goods before concluding the contract, he should have a right of withdrawal. For the same reason, the consumer should be allowed to test and inspect the goods he has bought to the extent necessary to establish the nature, characteristics and the functioning of the goods. Concerning off-premises contracts, the consumer should have the right of withdrawal because of the potential surprise element and/or psychological pressure. Withdrawal from the contract should terminate the obligation of the contracting parties to perform the contract.
(38)Trading websites should indicate clearly and legibly at the latest at the beginning of the ordering process whether any delivery restrictions apply and which means of payment are accepted.
(39)It is important to ensure for distance contracts concluded through websites that the consumer is able to fully read and understand the main elements of the contract before placing his order. To that end, provision should be made in this Directive for those elements to be displayed in the close vicinity of the confirmation requested for placing the order. It is also important to ensure that, in such situations, the consumer is able to determine the moment at which he assumes the obligation to pay the trader. Therefore, the consumer’s attention should specifically be drawn, through an unambiguous formulation, to the fact that placing the order entails the obligation to pay the trader.
(40)The current varying lengths of the withdrawal periods both between the Member States and for distance and off-premises contracts cause legal uncertainty and compliance costs. The same withdrawal period should apply to all distance and off-premises contracts. In the case of service contracts, the withdrawal period should expire after 14 days from the conclusion of the contract. In the case of sales contracts, the withdrawal period should expire after 14 days 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. In addition the consumer should be able to exercise the right to withdraw before acquiring physical possession of the goods. Where multiple goods are ordered by the consumer in one order but are delivered separately, the withdrawal period should expire after 14 days from the day on which the consumer acquires physical possession of the last good. Where goods are delivered in multiple lots or pieces, the withdrawal period should expire after 14 days from the day on which the consumer acquires the physical possession of the last lot or piece.
(41)In order 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 limitsnote should apply to the calculation of the periods contained in this Directive. Therefore, all periods contained in this Directive should be understood to be expressed in calendar days. Where a period expressed in days is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place should not be considered as falling within the period in question.
(42)The provisions relating to the right of withdrawal should be without prejudice to the Member States’ laws and regulations governing the termination or unenforceability of a contract or the possibility for the consumer to fulfil his contractual obligations before the time determined in the contract.
(43)If the trader has not adequately informed the consumer prior to the conclusion of a distance or off-premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty as regards the length of the withdrawal period, a 12-month limitation period should be introduced.
(44)Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for traders selling cross-border. The introduction of a harmonised model withdrawal form that the consumer may use should simplify the withdrawal process and bring legal certainty. For these reasons, Member States should refrain from adding any presentational requirements to the Union-wide model form relating for example to the font size. However, the consumer should remain free to withdraw in his own words, provided that his statement setting out his decision to withdraw from the contract to the trader is unequivocal. A letter, a telephone call or returning the goods with a clear statement could meet this requirement, but the burden of proof of having withdrawn within the time limits fixed in the Directive should be on the consumer. For this reason, it is in the interest of the consumer to make use of a durable medium when communicating his withdrawal to the trader.
(45)As experience shows that many consumers and traders prefer to communicate via the trader’s website, there should be a possibility for the trader to give the consumer the option of filling in a web-based withdrawal form. In this case the trader should provide an acknowledgement of receipt for instance by e-mail without delay.
(46)In the event that the consumer withdraws from the contract, the trader should reimburse all payments received from the consumer, including those covering the expenses borne by the trader to deliver goods to the consumer. The reimbursement should not be made by voucher unless the consumer has used vouchers for the initial transaction or has expressly accepted them. If the consumer expressly chooses a certain type of delivery (for instance 24-hour express delivery), although the trader had offered a common and generally acceptable type of delivery which would have incurred lower delivery costs, the consumer should bear the difference in costs between these two types of delivery.
(47)Some consumers exercise their right of withdrawal after having used the goods to an extent more than necessary to establish the nature, characteristics and the functioning of the goods. In this case the consumer should not lose the right to withdraw but should be liable for any diminished value of the goods. In order to establish the nature, characteristics and functioning of the goods, the consumer should only handle and inspect them in the same manner as he would be allowed to do in a shop. For example, the consumer should only try on a garment and should not be allowed to wear it. Consequently, the consumer should handle and inspect the goods with due care during the withdrawal period. The obligations of the consumer in the event of withdrawal should not discourage the consumer from exercising his right of withdrawal.
(48)The consumer should be required to send back the goods not later than 14 days after having informed the trader about his decision to withdraw from the contract. In situations where the trader or the consumer does not fulfil the obligations relating to the exercise of the right of withdrawal, penalties provided for by national legislation in accordance with this Directive should apply as well as contract law provisions.
(49)Certain exceptions from the right of withdrawal should exist, both for distance and off-premises contracts. A right of withdrawal could be inappropriate for example given the nature of particular goods or services. That is the case for example with wine supplied a long time after the conclusion of a contract of a speculative nature where the value is dependent on fluctuations in the market (‘vin en primeur’). The right of withdrawal should neither apply to goods made to the consumer’s specifications or which are clearly personalised such as tailor-made curtains, nor to the supply of fuel, for example, which is a good, by nature inseparably mixed with other items after delivery. The granting of a right of withdrawal to the consumer could also be inappropriate in the case of certain services where the conclusion of the contract implies the setting aside of capacity which, if a right of withdrawal were exercised, the trader may find difficult to fill. This would for example be the case where reservations are made at hotels or concerning holiday cottages or cultural or sporting events.
(50)On the one hand, the consumer should benefit from his right of withdrawal even in case he has asked for the provision of services before the end of the withdrawal period. On the other hand, if the consumer exercises his right of withdrawal, the trader should be assured to be adequately paid for the service he has provided. The calculation of the proportionate amount should be based on the price agreed in the contract unless the consumer demonstrates that that total price is itself disproportionate, in which case the amount to be paid shall be calculated on the basis of the market value of the service provided. The market value should be 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 performance of services before the end of the withdrawal period by making this request expressly and, in the case of off-premises contracts, on a durable medium. Similarly, the trader should inform the consumer on a durable medium of any obligation to pay the proportionate costs for the services already provided. For contracts having 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 the compensation regime for services should apply to the services aspects.
(51)The main difficulties encountered by consumers and one of the main sources of disputes with traders concern delivery of goods, including goods getting lost or damaged during transport and late or partial delivery. Therefore it is appropriate to clarify and harmonise the national rules as to when delivery should occur. The place and modalities of delivery and the rules concerning the determination of the conditions for the transfer of the ownership of the goods and the moment at which such transfer takes place, should remain subject to national law and therefore should not be affected by this Directive. The rules on delivery laid down in this Directive should include the possibility for the consumer to allow a third party to acquire on his behalf the physical possession or control of the goods. The consumer should be considered to have control of the goods where he or a third party indicated by the consumer has access to the goods to use them as an owner, or the ability to resell the goods (for example, when he has received the keys or possession of the ownership documents).
(52)In the context of sales contracts, the delivery of goods can take place in various ways, either immediately or at a later date. If the parties have not agreed on a specific delivery date, the trader should deliver the goods as soon as possible, but in any event not later than 30 days from the day of the conclusion of the contract. The rules regarding late delivery should also take into account goods to be manufactured or acquired specially for the consumer which cannot be reused by the trader without considerable loss. Therefore, a rule which grants an additional reasonable period of time to the trader in certain circumstances should be provided for in this Directive. When the trader has failed to deliver the goods within the period of time agreed with the consumer, before the consumer can terminate the contract, the consumer should call upon the trader to make the delivery within a reasonable additional period of time and be entitled to terminate the contract if the trader fails to deliver the goods even within that additional period of time. However, this rule should not apply when the trader has refused to deliver the goods in an unequivocal statement. Neither should it apply in certain circumstances where the delivery period is essential such as, for example, in the case of a wedding dress which should be delivered before the wedding. Nor should it apply in circumstances where the consumer informs the trader that delivery on a specified date is essential. For this purpose, the consumer may use the trader’s contact details given in accordance with this Directive. In these specific cases, if the trader fails to deliver the goods on time, the consumer should be entitled to terminate the contract immediately after the expiry of the delivery period initially agreed. This Directive should be without prejudice to national provisions on the way the consumer should notify the trader of his will to terminate the contract.
(53)In addition to the consumer’s right to terminate the contract where the trader has failed to fulfil his obligations to deliver the goods in accordance with this Directive, the consumer may, in accordance with the applicable national law, have recourse to other remedies, such as granting the trader an additional period of time for delivery, enforcing the performance of the contract, withholding payment, and seeking damages.
(54)In accordance with Article 52(3) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal marketnote, Member States should be able to prohibit or limit traders’ right to request charges from consumers taking into account the need to encourage competition and promote the use of efficient payment instruments. In any event, traders should be prohibited from charging consumers fees that exceed the cost borne by the trader for the use of a certain means of payment.
(55)Where the goods are dispatched by the trader to the consumer, disputes may arise, in the event of loss or damage, as to the moment at which the transfer of risk takes place. Therefore this Directive should provide that the consumer be protected against any risk of loss of or damage to the goods occurring before he has acquired the physical possession of the goods. The consumer should be protected during a transport arranged or carried out by the trader, even where the consumer has chosen a particular delivery method from a range of options offered by the trader. However, that provision should not apply to contracts where it is up to the consumer to take delivery of the goods himself or to ask a carrier to take delivery. Regarding the moment of the transfer of the risk, a consumer should be considered to have acquired the physical possession of the goods when he has received them.
(56)Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual rights should be afforded the right to initiate proceedings, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings.
(57)It is necessary that Member States lay down penalties for infringements of this Directive and ensure that they are enforced. The penalties should be effective, proportionate and dissuasive.
(58)The consumer should not be deprived of the protection granted by this Directive. Where the law applicable to the contract is that of a third country, Regulation (EC) No 593/2008 should apply, in order to determine whether the consumer retains the protection granted by this Directive.
(59)The Commission, following consultation with the Member States and stakeholders, should look into the most appropriate way to ensure that all consumers are made aware of their rights at the point of sale.
(60)Since inertia selling, which consists of unsolicited supply of goods or provision of services to consumers, is prohibited by Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (‘Unfair Commercial Practices Directive’)note but no contractual remedy is provided therein, it is necessary to introduce in this Directive the contractual remedy of exempting the consumer from the obligation to provide any consideration for such unsolicited supply or provision.
(61)Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)note 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 are therefore not needed.
(62)It is appropriate for the Commission to review this Directive if some barriers to the internal market are identified. In its review, the Commission should pay particular attention to the possibilities granted to Member States to maintain or introduce specific national provisions including in certain areas of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contractsnote and Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guaranteesnote. That review could lead to a Commission proposal to amend this Directive; that proposal may include amendments to other consumer protection legislation reflecting the Commission’s Consumer Policy Strategy commitment to review the Union acquis in order to achieve a high, common level of consumer protection.
(63)Directives 93/13/EEC and 1999/44/EC should be amended to require Member States to inform the Commission about the adoption of specific national 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 a high level of consumer protection, to contribute to the proper functioning of the internal market, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(66)This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.
(67)In accordance with point 34 of the Interinstitutional agreement on better law-makingnote, Member States are encouraged to draw up, for themselves and in the interests of the Union, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures, and to make them public,
HAVE ADOPTED THIS DIRECTIVE:
Chapter I · Subject matter, definitions and scope
Article 1Subject matter#
The purpose of this Directive is, through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts concluded 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 or profession;
(2)‘trader’ means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive;
(3)‘goods’ means goods as defined in point (5) of Article 2 of Directive (EU) 2019/771 of the European Parliament and of the Councilnote;
(4a)‘personal data’ means personal data as defined in point (1) of Article 4 of Regulation (EU) 2016/679 of the European Parliament and of the Councilnote;
(5)‘sales contract’ means any contract under which the trader transfers or undertakes to transfer ownership of goods to the consumer, including any contract having as its object both goods and services;
(6)‘service contract’ means any contract other than a sales contract under which the trader supplies or undertakes to supply a service, including a digital service, to the consumer;
(7)‘distance contract’ means any contract concluded between the trader and the consumer under an organised distance sales or service-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;
(8)‘off-premises contract’ means any contract between the trader and the consumer:
(a)concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;
(b)for which an offer was made by the consumer in the same circumstances as referred to in point (a);
(c)concluded on the business premises of the trader or through any means 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 of the trader and the consumer; or
(9)‘business premises’ means:
(a)any immovable retail premises where the trader carries out his activity on a permanent basis; or
(b)any movable retail premises where the trader carries out his activity on a usual basis;
(10)‘durable medium’ means any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;
(11)‘digital content’ means digital content as defined in point (1) of Article 2 of Directive (EU) 2019/770 of the European Parliament and of the Councilnote;
(12)‘financial service’ means any service of a banking, credit, insurance, personal pension, investment or payment nature;
(13)‘public auction’ means a method of sale where goods or services are offered by the trader to consumers, who attend or are given the possibility to attend the auction in person, through a transparent, competitive bidding procedure run by an auctioneer and where the successful bidder is bound to purchase the goods or services;
(14)‘commercial guarantee’ means any undertaking by the trader or a 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 or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;
(14a)‘commercial guarantee of durability’ means a producer’s commercial guarantee of durability as referred to in Article 17 of Directive (EU) 2019/771, under which the producer is directly liable to the consumer during the entire period of the commercial guarantee of durability for repair or replacement of the goods in accordance with Article 14 of Directive (EU) 2019/771, whenever the goods do not maintain their durability;
(14b)‘durability’ means durability as defined in Article 2, point (13), of Directive (EU) 2019/771;
(14c)‘producer’ means producer as defined in Article 2, point (4), of Directive (EU) 2019/771;
(14d)‘reparability score’ means a score expressing the capacity of a good to be repaired, based on harmonised requirements established at Union level;
(14e)‘software update’ means a free update, including a security update, that is necessary to keep goods with digital elements, digital content and digital services in conformity in accordance with Directives (EU) 2019/770 and (EU) 2019/771;
(15)‘ancillary contract’ means a contract by which the consumer acquires goods or services related to a distance contract or an off-premises contract and where those goods are supplied or those services are provided by the trader or by a third party on the basis of an arrangement between that third party and the trader;
(16)‘digital service’ means a digital service as defined in point (2) of Article 2 of Directive (EU) 2019/770;
(17)‘online marketplace’ means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers;
(18)‘provider of an online marketplace’ means any trader which provides an online marketplace to consumers;
(19)‘compatibility’ means compatibility as defined in point (10) of Article 2 of Directive (EU) 2019/770;
(20)‘functionality’ means functionality as defined in point (11) of Article 2 of Directive (EU) 2019/770;
(21)‘interoperability’ means interoperability as defined in point (12) of Article 2 of Directive (EU) 2019/770.
Article 3Scope#
1.This Directive shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer where the consumer pays or undertakes to pay the price. It shall apply to contracts for the supply of water, gas, electricity or district heating, including by public providers, to the extent that these commodities are provided on a contractual basis.
1a.This Directive shall also apply where the trader supplies or undertakes to supply digital content which is not supplied on a tangible medium or a digital service to the consumer and the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital content which is not supplied on a tangible medium or digital service in accordance with this Directive or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose.
1b.In the case of distance contracts concluded between a trader and a consumer for the supply of financial services, only Articles 1 and 2, Article 3(2), (5) and (6), Article 4, Article 6a, Article 8(6), Article 11a, Articles 16a to 16e, Article 19, Articles 21 to 23, Article 24(1) and (6), Articles 25 to 27 and Article 29 shall apply.With the exception of Article 21, where contracts referred to in the first subparagraph comprise an initial service agreement followed by successive operations, or a series of separate operations, of the same nature, performed over time, the provisions referred to in the first subparagraph shall apply only to the initial agreement.In the event that there is no initial service agreement but the successive operations, or separate operations, of the same nature performed over time are performed between the same contractual parties, Articles 16a and 16d shall apply only to the first operation.Where, however, no operation of the same nature is performed for more than one year, the next operation will be deemed to be the first in a new series of operations and, accordingly, Articles 16a and 16d shall apply.
2.If any provision of this Directive conflicts with a provision of another Union act governing specific sectors, the provision of that other Union act shall prevail and 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 point (a) of Article 3 of Directive 2011/24/EU, whether or not they are provided via 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 not covered by Article 3(1b);
(e)for the creation, acquisition or transfer of immovable property or of rights in immovable property;
(f)for the construction of new buildings, the substantial conversion of existing buildings and for rental of accommodation for residential purposes;
(g)on packages as defined in point 2 of Article 3 of Directive (EU) 2015/2302 of the European Parliament and of the Councilnote.Article 6(7), Article 8(2) and (6) and Articles 19, 21 and 22 of this Directive shall apply mutatis mutandis to packages as defined in point 2 of Article 3 of Directive (EU) 2015/2302 in relation to travellers as defined in point 6 of Article 3 of that Directive;
(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 of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contractsnote;
(i)which, in accordance with the laws of Member States, are established by a public office-holder who has a statutory obligation to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope;
(k)for passenger transport services, with the exception of Article 8(2) and Articles 19, 21 and 22;
(l)concluded by means of automatic vending machines or automated commercial 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;
(n)for any goods sold by way of execution or otherwise by authority of law.
4.Member States may decide not to apply this Directive or not to maintain or introduce corresponding national provisions to off-premises contracts for which the payment to be made by the consumer does not exceed EUR 50. Member States may define a lower value in their national legislation.
5.This Directive shall not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated in this Directive.
6.This Directive shall not prevent traders from offering consumers contractual arrangements which go beyond the protection provided for in this Directive.
Article 4Level of harmonisation#
Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive.
Chapter II · Consumer information for contracts other than distance or off-premises contracts
Article 5Information requirements for contracts other than distance or off-premises contracts#
1.Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context:
(b)the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number;
(c)the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(e)a reminder of the existence of the legal guarantee of conformity for goods and its main elements, including its minimum duration of two years as provided in Directive (EU) 2019/771, in a prominent manner, using the harmonised notice referred to in Article 22a of this Directive;
(ea)where the producer offers the consumer a commercial guarantee of durability at no additional cost, covering the entire good and with a duration of more than two years and makes that information available to the trader, the information that that good benefits from such a guarantee, its duration and a reminder of the existence of the legal guarantee of conformity, in a prominent manner, using the harmonised label referred to in Article 22a;
(eb)a reminder of the existence of the legal guarantee of conformity for digital content and digital services;
(ec)where applicable, the existence and the conditions of after-sales services and commercial guarantees;
(ed)for goods with digital elements, for digital content and for digital services, where the producer or provider makes the information available to the trader, the minimum period, whether expressed as a period of time or by reference to a date, during which the producer or the provider provides software updates;
(f)the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
(g)where applicable, the functionality, including applicable technical protection measures, of goods with digital elements, digital content and digital services;
(h)where applicable, any relevant compatibility and interoperability of goods with digital elements, digital content and digital services that the trader is aware of or can reasonably be expected to have been aware of;
(i)where applicable, the reparability score for the goods;
(j)where point (i) is not applicable and provided that the producer makes the information available to the trader, information about the availability and estimated cost of, and procedure for ordering, spare parts that are necessary to keep the goods in conformity, about the availability of repair and maintenance instructions and about repair restrictions.
2.Paragraph 1 shall also apply to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of 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 of their conclusion.
4.Member States may adopt or maintain additional pre-contractual information requirements for contracts to which this Article applies.
III · Consumer information and right of withdrawal for distance and off-premises contracts
Article 6Information requirements for distance and off-premises contracts#
1.Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:
(b)the identity of the trader, such as his trading name;
(c)the geographical address at which the trader is established as well as the trader’s telephone number and email address; in addition, where the trader provides other means of online communication which guarantee that the consumer can keep any written correspondence, including the date and time of such correspondence, with the trader on a durable medium, the information shall also include details of those other means; all those means of communication provided by the trader shall enable the consumer to contact the trader quickly and communicate with him efficiently; where applicable, the trader shall also provide the geographical address and identity of the trader on whose behalf he is acting;
(e)the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be reasonably calculated in advance, the manner in which the price is to be calculated shall be provided;
(ea)where applicable, that the price was personalised on the basis of automated decision-making;
(f)the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate;
(h)where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with Article 11(1), as well as the model withdrawal form set out in Annex I(B), and, where applicable, information about the existence and placement of the withdrawal function referred to in Article 11a;
(j)that, if the consumer exercises the right of withdrawal after having made a request in accordance with Article 7(3) or Article 8(8), the consumer shall be liable to pay the trader reasonable costs in accordance with Article 14(3);
(k)where a right of withdrawal is not provided for in accordance with Article 16, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal;
(l)a reminder of the existence of the legal guarantee of conformity for goods and its main elements, including its minimum duration of two years as provided in Directive (EU) 2019/771, in a prominent manner, using the harmonised notice referred to in Article 22a of this Directive;
(la)where the producer offers the consumer a commercial guarantee of durability at no additional cost, covering the entire good and with a duration of more than two years, and makes that information available to the trader, the information that that good benefits from such a guarantee, its duration and a reminder of the existence of the legal guarantee of conformity, in a prominent manner, using the harmonised label referred to in Article 22a;
(lb)a reminder of the existence of the legal guarantee of conformity for digital content and digital services;
(lc)for goods with digital elements, for digital content and for digital services, where the producer or the provider makes the information available to the trader, the minimum period, whether expressed as a period of time or by reference to a date, during which the producer or the provider provides software updates;
(m)where applicable, the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees;
(n)the existence of relevant codes of conduct, as defined in point (f) of Article 2 of Directive 2005/29/EC, and how copies of them can be obtained, where applicable;
(o)the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
(p)where applicable, the minimum duration of the consumer’s obligations under the contract;
(r)where applicable, the functionality, including applicable technical protection measures, of goods with digital elements, digital content and digital services;
(s)where applicable, any relevant compatibility and interoperability of goods with digital elements, digital content and digital services that the trader is aware of or can reasonably be expected to have been aware of;
(t)where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it;
(u)where applicable, the reparability score for the goods;
(v)where point (u) is not applicable and provided that the producer makes the information available to the trader, information about the availability and estimated cost of, and procedure for ordering, spare parts that are necessary to keep the goods in conformity, about the availability of repair and maintenance instructions and about repair restrictions.
2.Paragraph 1 shall also apply to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of 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), (c) and (d) of paragraph 1 may be replaced by the equivalent details for the auctioneer.
4.The information referred to in points (h), (i) and (j) of paragraph 1 of this Article may be provided by means of the model instructions on withdrawal set out in Annex I(A). The trader shall have fulfilled the information requirements laid down in points (h), (i) and (j) of paragraph 1 of this Article if the trader has supplied these instructions to the consumer, correctly filled in. The references to the withdrawal period of 14 days in the model instructions on withdrawal set out in Annex I(A) shall be replaced by references to a withdrawal period of 30 days in cases where Member States have adopted rules in accordance with Article 9(1a).
5.The information referred to in paragraph 1 shall form an integral part of the distance or off-premises contract and shall not be altered unless the contracting parties expressly agree otherwise.
7.Member States may maintain or introduce in their national law language requirements regarding the contractual information, so as to ensure that such information is easily understood by the consumer.
8.The information requirements laid down in this Directive are in addition to information requirements contained in Directive 2006/123/EC and Directive 2000/31/EC and do not prevent Member States from imposing additional information requirements in accordance with those Directives.Without prejudice to the first subparagraph, if a provision of Directive 2006/123/EC or Directive 2000/31/EC on the content and the manner in which the information is to be provided conflicts with a provision of this Directive, the provision of this Directive shall prevail.
9.As regards compliance with the information requirements laid down in this Chapter, the burden of proof shall be on the trader.
Article 6aAdditional specific information requirements for contracts concluded on online marketplaces#
1.Before a consumer is bound by a distance contract, or any corresponding offer, on an online marketplace, the provider of the online marketplace shall, without prejudice to Directive 2005/29/EC, provide the consumer with the following information in a clear and comprehensible manner and in a way appropriate to the means of distance communication:
(a)general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the offers are presented, on the main parameters determining ranking, as defined in point (m) of Article 2(1) of Directive 2005/29/EC, of offers presented to the consumer as a result of the search query and the relative importance of those parameters as opposed to other parameters;
(b)whether the third party offering the goods, services or digital content is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace;
(c)where the third party offering the goods, services or digital content is not a trader, that the consumer rights stemming from Union consumer protection law do not apply to the contract;
(d)where applicable, how the obligations related to the contract are shared between the third party offering the goods, services or digital content and the provider of the online marketplace, such information being without prejudice to any responsibility that the provider of the online marketplace or the third-party trader has in relation to the contract under other Union or national law.
2.Without prejudice to Directive 2000/31/EC, this Article does not prevent Member States from imposing additional information requirements for providers of online marketplaces. Such provisions shall be proportionate, non-discriminatory and justified on grounds of consumer protection.
Article 7Formal requirements for off-premises contracts#
1.With respect to off-premises contracts, the trader shall give the information provided for in Article 6(1) to the consumer on paper or, if the consumer agrees, on another durable medium. That information shall be legible and in plain, intelligible language.
2.The trader shall provide the consumer with a copy of the signed contract or the confirmation of the contract on paper or, if the consumer agrees, on another durable medium, including, where applicable, the confirmation of the consumer’s prior express consent and acknowledgement in accordance with point (m) of Article 16.
3.Where a consumer wants the performance of services, or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating to begin during the withdrawal period provided for in Article 9(2), and the contract places the consumer under an obligation to pay, the trader shall require that the consumer make such an express request on a durable medium and request the consumer to acknowledge that, once the contract has been fully performed by the trader, the consumer will no longer have the right of withdrawal.
4.With respect to off-premises contracts where the consumer has explicitly requested the services of the trader for the purpose of carrying out repairs or maintenance for which the trader and the consumer immediately perform their contractual obligations and where the payment to be made by the consumer does not exceed EUR 200:
(a)the trader shall provide the consumer with the information referred to in points (b) and (c) of Article 6(1) and information about the price or the manner in which the price is to be calculated together with an estimate of the total price, on paper or, if the consumer agrees, on another durable medium. The trader shall provide the information referred to in points (a), (h) and (k) of Article 6(1), but may choose not to provide it on paper or another durable medium if the consumer expressly agrees;
(b)the confirmation of the contract provided in accordance with paragraph 2 of this Article shall contain the information provided for in Article 6(1).
Member States may decide not to apply this paragraph.
5.Member States shall not impose any further formal pre-contractual information requirements for the fulfilment of the information obligations laid down in this Directive.
Article 8Formal requirements for distance contracts#
1.With respect to distance contracts, the trader shall give the information provided for in Article 6(1) or make that information available to the consumer in a way appropriate to the means of distance communication used in plain and intelligible language. In so far as that information is provided on a durable medium, it shall be legible.
10.Member States shall not impose any further formal pre-contractual information requirements for the fulfilment of the information obligations laid down in this Directive.
2.If a distance contract to be concluded by electronic means places the consumer under an obligation to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his order, of the information provided for in Article 6(1), points (a), (e), (la), (o) and (p).The trader shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. If placing an order entails activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader. If the trader has not complied with this subparagraph, the consumer shall not be bound by the contract or order.
3.Trading websites shall indicate clearly and legibly at the latest at the beginning of the ordering process whether any delivery restrictions apply and which means of payment are accepted.
4.If the contract is concluded through a means of distance communication which allows limited space or time to display the information, the trader shall provide, on or through that particular means prior to the conclusion of such a contract, at least the pre-contractual information regarding the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and, if the contract is of indeterminate duration, the conditions for terminating the contract, as referred to, respectively, in points (a), (b), (e), (h) and (o) of Article 6(1) except the model withdrawal form set out in Annex I(B) referred to in point (h). The other information referred to in Article 6(1), including the model withdrawal form, shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph 1 of this Article.
5.Without prejudice to paragraph 4, if the trader makes a telephone call to the consumer with a view to concluding a distance contract, he shall, at the beginning of the conversation with the consumer, disclose his identity and, where applicable, the identity of the person on whose behalf he makes that call, and the commercial purpose of the call.
6.Where a distance contract is to be concluded by telephone, Member States may provide that the trader has to confirm the offer to the consumer who is bound 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 a durable medium.
7.The trader shall provide the consumer with the confirmation of the contract concluded, on a durable medium within a reasonable time after the conclusion of the distance contract, and at the latest at the time of the delivery of the goods or before the performance of the service begins. That confirmation shall include:
(a)all the information referred to in Article 6(1) unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract; and
(b)where applicable, the confirmation of the consumer’s prior express consent and acknowledgment in accordance with point (m) of Article 16.
8.Where a consumer wants the performance of services, or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, to begin during the withdrawal period provided for in Article 9(2), and the contract places the consumer under an obligation to pay, the trader shall require that the consumer make an express request and request the consumer to acknowledge that, once the contract has been fully performed by the trader, the consumer will no longer have the right of withdrawal.
9.This Article shall be without prejudice to the provisions on the conclusion of e-contracts and the placing of e-orders set out in Articles 9 and 11 of Directive 2000/31/EC.
Article 9Right of withdrawal#
1.Save where the exceptions provided for in Article 16 apply, the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14.
1a.Member States may adopt rules in accordance with which the withdrawal period of 14 days referred to in paragraph 1 is extended to 30 days for contracts concluded in the context of unsolicited visits by a trader to a consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers for the purpose of protecting legitimate interests of consumers with regard to aggressive or misleading marketing or selling practices. Such rules shall be proportionate, non-discriminatory and justified on grounds of consumer protection.
2.Without prejudice to Article 10, the withdrawal period referred to in paragraph 1 of this Article shall expire after 14 days or, in cases where Member States have adopted rules in accordance with paragraph 1a of this Article, 30 days from:
(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 party other than the carrier and indicated by the consumer acquires physical possession of the goods or:
(c)in the case of contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium, the day of the conclusion of the contract.
3.The Member States shall not prohibit the contracting parties from performing their contractual obligations during the withdrawal period. Nevertheless, in the case of off-premises contracts, Member States may maintain existing national legislation prohibiting the trader from collecting the payment from the consumer during the given period after the conclusion of the contract.
Article 10Omission of information on the right of withdrawal#
1.If the trader has not provided the consumer with the information on the right of withdrawal as required by point (h) of Article 6(1), the withdrawal period shall expire 12 months from the end of the initial withdrawal period, as determined in accordance with Article 9(2).
2.If the trader has provided the consumer with the information provided for in paragraph 1 of this Article within 12 months from the day referred to in Article 9(2), the withdrawal period shall expire 14 days or, in cases where Member States have adopted rules in accordance with Article 9(1a), 30 days after the day upon which the consumer receives that information.
Article 11Exercise of the right of withdrawal#
1.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); or
(b)make any other unequivocal statement setting out his decision to withdraw from the contract.
Member States shall not provide for any formal requirements applicable to the model withdrawal form other than those set out in Annex I(B).
2.The consumer shall have exercised his right of withdrawal within the withdrawal period referred to in Article 9(2) and Article 10 if the communication concerning the exercise of the right of withdrawal is sent by the consumer before that period has expired.
3.The trader may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer to electronically fill in and submit either the model withdrawal form set out in Annex I(B) or any other unequivocal statement on the trader’s website. In those cases the trader shall communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without delay.
4.The burden of proof of exercising the right of withdrawal in accordance with this Article shall be on the consumer.
Article 11aExercise of the right of withdrawal from distance contracts concluded by the means of an online interface#
1.For distance contracts concluded by the means of an online interface, the trader shall ensure that the consumer can also withdraw from the contract by using a withdrawal function.The withdrawal function shall be labelled with the words ‘withdraw from contract here’ or an unambiguous corresponding formulation in an easily legible way. The withdrawal function shall be continuously available throughout the withdrawal period. It shall be prominently displayed on the online interface and easily accessible to the consumer.
2.The withdrawal function shall enable the consumer to send an online withdrawal statement informing the trader of his or her decision to withdraw from the contract. That online withdrawal statement shall enable the consumer to easily provide or confirm the following information:
(a)his or her name;
(b)details identifying the contract from which he or she wishes to withdraw;
(c)details of the electronic means by which the confirmation of the withdrawal will be sent to the consumer.
3.Once the consumer has completed the online withdrawal statement in accordance with paragraph 2, the trader shall enable the consumer to submit it to him by means of a confirmation function.That confirmation function shall be labelled in an easily legible manner, and only with the words ‘confirm withdrawal’ or with an unambiguous corresponding formulation.
4.Once the consumer activates the confirmation function, the trader shall send to the consumer an acknowledgement of receipt of the withdrawal on a durable medium, including its content and the date and time of its submission, without undue delay.
5.The consumer shall be considered to have exercised his or her right of withdrawal within the relevant withdrawal period if he or she submitted the online withdrawal statement referred to in this Article before that period expired.
Article 12Effects 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 or off-premises contract, in cases where an offer was made by the consumer.
Article 13Obligations of the trader in the event 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 event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract in accordance with Article 11.The trader shall carry out the reimbursement referred to in the first subparagraph using the same means of payment as the consumer used for the initial transaction, unless the consumer has expressly agreed otherwise and provided that the consumer does not incur any fees as a result of such reimbursement.
4.In respect of personal data of the consumer, the trader shall comply with the obligations applicable under Regulation (EU) 2016/679.
5.The trader shall refrain from using any content, other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader, except where such content:
(a)has no utility outside the context of the digital content or digital service supplied by the trader;
(b)only relates to the consumer’s activity when using the digital content or digital service supplied by the trader;
(c)has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts; or
(d)has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.
6.Except in the situations referred to in point (a), (b) or (c) of paragraph 5, the trader shall, at the request of the consumer, make available to the consumer any content, other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader.
7.The consumer shall be entitled to retrieve that digital content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.
8.In the event of withdrawal from the contract, the trader may prevent any further use of the digital content or digital service by the consumer, in particular by making the digital content or digital service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to paragraph 6.
Article 14Obligations of the consumer in the event of withdrawal#
1.Unless the trader has offered to collect the goods himself, 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 in accordance with Article 11. The deadline shall be met if the consumer sends back the goods before the period of 14 days has expired.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.In the case of off-premises contracts where the goods have been delivered to the consumer’s home at the time of the conclusion of the contract, the trader shall at his own expense collect the goods if, by their nature, those goods cannot normally be returned by post.
2.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 in accordance with point (h) of Article 6(1).
2a.In the event of withdrawal from the contract, the consumer shall refrain from using the digital content or digital service and from making it available to third parties.
3.Where a consumer exercises the right of withdrawal after having made a request in accordance with Article 7(3) or Article 8(8), the consumer shall pay to the trader an amount which is in proportion to what has been provided until the time the consumer has informed the trader of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. The proportionate amount to be paid by the consumer to the trader shall be calculated on the basis of the 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 what has been provided.
4.The consumer shall bear no cost for:
(a)the performance of services or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, in full or in part, during the withdrawal period, where:
(i)the trader has failed to provide information in accordance with points (h) or (j) of Article 6(1); or
(ii)the consumer has not expressly requested performance to begin during the withdrawal period in accordance with Article 7(3) and Article 8(8); or
(b)the supply, in full or in part, of digital content which is not supplied on a tangible medium where:
(ii)the consumer has not acknowledged that he loses his right of withdrawal when giving his consent; or
(iii)the trader has failed to provide confirmation in accordance with Article 7(2) or Article 8(7).
5.Except as provided for in Article 13(2) and in this Article, the consumer shall not incur any liability as a consequence of the exercise of the right of withdrawal.
Article 15Effects of the exercise of the right of withdrawal on ancillary contracts#
1.Without prejudice to Article 15 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumersnote, if the consumer exercises his right of withdrawal from a distance or an off-premises contract in accordance with Articles 9 to 14 of this Directive, any ancillary contracts shall be automatically terminated, without any costs for the consumer, except as provided for in Article 13(2) and in Article 14 of this Directive.
2.The Member States shall lay down detailed rules on the termination of such contracts.
Article 16Exceptions from the right of withdrawal#
Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises contracts as regards the following:
(a)service contracts after the service has been fully performed but, if the contract places the consumer under an obligation to pay, only if the performance has begun with the consumer’s prior express consent and acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;
(d)the supply of goods which are liable to deteriorate or expire rapidly;
(e)the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
(f)the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items;
(g)the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place after 30 days and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;
(h)contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance. If, on the occasion of such visit, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in carrying out the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods;
(i)the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery;
(j)the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;
(k)contracts concluded at a public auction;
(l)the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance;
(m)contracts for the supply of digital content which is not supplied on a tangible medium if the performance has begun and, if the contract places the consumer under an obligation to pay, where:
(i)the consumer has provided prior express consent to begin the performance during the right of withdrawal period;
(ii)the consumer has provided acknowledgement that he thereby loses his right of withdrawal; and
(iii)the trader has provided confirmation in accordance with Article 7(2) or Article 8(7).
Member States may derogate from the exceptions from the right of withdrawal set out in points (a), (b), (c) and (e) of the first paragraph for contracts concluded in the context of unsolicited visits by a trader to a consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers for the purpose of protecting the legitimate interests of consumers with regard to aggressive or misleading marketing or selling practices. Such provisions shall be proportionate, non-discriminatory and justified on grounds of consumer protection.In the case of service contracts which place the consumer under an obligation to pay where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs, Member States may provide that the consumer loses the right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer’s prior express consent.
IIIa · Rules concerning financial services contracts concluded at a distance
Article 16aInformation requirements for distance contracts for consumer financial services#
1.In good time before the consumer is bound by a distance contract, or any corresponding offer, the trader shall provide the consumer, in a clear and comprehensible manner, with the following information:
(b)the geographical address at which the trader is established as well as the trader’s telephone number and email address, or details of any other means of communication offered by the trader and, where applicable, those of the trader on whose behalf he is acting; all those means of communication offered by the trader shall enable the consumer to contact the trader quickly and to communicate with him efficiently and guarantee that the consumer can keep any written correspondence with the trader on a durable medium;
(e)where the trader’s activity is subject to an authorisation scheme, the name, address, website and any other contact information of the relevant supervisory authority;
(f)a description of the main characteristics of the financial service;
(g)the total price to be paid by the consumer to the trader for the financial service, including all related fees, charges and expenses, and all taxes paid via the trader or, when an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it;
(h)where applicable, information on the consequences of late or missed payments;
(i)where applicable, that the price was personalised on the basis of automated decision-making;
(j)where applicable, a notice indicating that the financial service is related to instruments involving special risks related to their specific features or the operations to be executed or whose price depends on fluctuations in the financial markets outside the trader’s control and a notice indicating that historical performances are not indicators for future performances;
(k)notice of the possibility that other taxes and/or costs that are not paid via the trader or imposed by him might exist;
(l)any limitations of the period for which the information provided in accordance with this paragraph is valid;
(m)the arrangements for payment and for performance;
(n)any specific additional cost for the consumer of using the means of distance communication, if such additional cost is charged;
(o)where environmental or social factors are integrated into the investment strategy of the financial service, information on any environmental or social objectives targeted by the financial service;
(p)the existence or absence of a right of withdrawal and, where the right of withdrawal exists, information on the withdrawal period and the conditions for exercising that right including information on the amount which the consumer may be required to pay, as well as the consequences of non-exercise of that right;
(q)the minimum duration of the distance contract in the case of financial services to be performed permanently or recurrently;
(r)information on any rights the parties might have to terminate the contract early or unilaterally by virtue of the terms of the distance contract, including any penalties imposed under the contract in such cases;
(s)practical instructions and procedures for exercising the right of withdrawal in accordance with Article 16b(1), indicating, inter alia, the trader’s telephone number and email address or details of other means of communication relevant to the sending of the withdrawal statement and, for financial services contracts concluded by means of an online interface, information about the existence and placement of the withdrawal function referred to in Article 11a;
(t)any contractual clause on the law applicable to the distance contract and/or on the competent court;
(u)in which language, or languages, the contractual terms and conditions, and the prior information referred to in this Article, are supplied, and furthermore in which language, or languages, the trader, with the agreement of the consumer, undertakes to communicate during the duration of the distance contract;
(v)where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it;
(w)the existence of guarantee funds or other compensation arrangements, not covered by Directives 2014/49/EUnote and 97/9/EC of the European Parliament and of the Councilnote.
10.Where another Union act governing specific financial services contains rules on the information to be provided to the consumer prior to the conclusion of the contract, only the rules of that Union act shall apply to those specific financial services, irrespective of the level of detail of those rules, unless otherwise provided in that Union act.Where that other Union act does not contain rules on information about the right of withdrawal, the trader shall inform the consumer about the existence or absence of such a right in accordance with paragraph 1, point (p).
2.Member States may maintain or introduce in their national law language requirements regarding the information referred to in paragraph 1, so as to ensure that such information is easily understood by the consumer.
3.In the case of voice telephony communications, the identity of the trader and the commercial purpose of the call initiated by the trader shall be made explicitly clear at the beginning of any call with the consumer. When a call is being recorded, or might be recorded, the trader shall also notify the consumer that this is the case.
4.By way of derogation from paragraph 1, in the case of voice telephony communications as referred to in paragraph 3, if the consumer explicitly agrees, the trader may provide only the information referred to in points (a), (f), (g), (k) and (p) of paragraph 1 before the consumer is bound by the distance contract. In such case, the trader shall inform the consumer of the nature and the availability of the other information referred to in paragraph 1. The trader shall provide that other information required by paragraph 1 on a durable medium immediately after the conclusion of the distance contract.
5.In the event that the information referred to in paragraph 1 is provided less than one day before the consumer is bound by the distance contract, Member States shall require that the trader sends a reminder to the consumer of the possibility to withdraw from the distance contract and of the procedure to follow for withdrawing, in accordance with Article 16b. That reminder shall be provided to the consumer, on a durable medium, between one and seven days after the conclusion of the distance contract.
6.The information referred to in paragraph 1 shall be provided to the consumer on a durable medium and be easy to read.The information referred to in paragraph 1 shall be provided upon request in an appropriate and accessible format to consumers with disabilities, including those with a visual impairment.
7.Except for the information referred to in paragraph 1, points (a), (f), (g), (k), and (p), the trader shall be permitted to layer the information where it is provided by electronic means.Where information is layered, it shall be possible to view, save and print the information referred to in paragraph 1 as one single document.In such cases, the trader shall ensure that the consumer is presented with all the pre-contractual information referred to in paragraph 1 before the conclusion of the distance contract.
8.As regards compliance with the information requirements laid down in this Article, the burden of proof shall be on the trader.
9.Member States may adopt or maintain more stringent provisions on pre-contractual information requirements than those referred to in this Article, when the provisions are in conformity with Union law.
Article 16bRight of withdrawal from distance contracts for financial services#
1.Member States shall ensure that the consumer has a period of 14 calendar days to withdraw from a contract without penalty and without giving any reason. That period shall be extended to 30 calendar days in distance contracts relating to personal pension operations.The withdrawal period referred to in the first subparagraph shall begin either:
(a)from the day of the conclusion of the distance contract; or
(b)from the day on which the consumer receives the contractual terms and conditions and the information in accordance with Article 16a, if that is later than the date in point (a) of this subparagraph.If the consumer has not received the contractual terms and conditions and the information in accordance with Article 16a, the withdrawal period shall in any event expire 12 months and 14 days after the conclusion of the distance contract. This shall not apply if the consumer has not been informed about his or her right of withdrawal in accordance with Article 16a(1), point (p).
2.The right of withdrawal shall not apply to the following:
(a)consumer financial services whose price depends on fluctuations in the financial market outside the trader’s control, which might occur during the withdrawal period, such as services related to:
—foreign exchange,
—money market instruments,
—transferable securities,
—units in collective investment undertakings,
—financial-futures contracts, including equivalent cash-settled instruments,
—forward interest-rate agreements (FRAs),
—interest-rate, currency and equity swaps,
—options to acquire or dispose of any instruments referred to in this point, including equivalent cash-settled instruments. This category includes in particular options on currency and on interest rates;
(b)travel and baggage insurance policies or similar short-term insurance policies of less than one month’s duration;
3.The consumer shall be considered to have exercised his or her right of withdrawal within the withdrawal period referred to in paragraph 1 if he or she has sent the communication concerning the exercise of the right of withdrawal before that period expired.
4.Where an ancillary service relating to the distance contract for financial service is provided by the trader or by a third party on the basis of an agreement between that third party and the trader, the consumer shall not be bound by the ancillary contract if the consumer exercises his or her right of withdrawal in accordance with this Article. Where the consumer chooses to terminate the ancillary contract, it shall be without any costs for the consumer.
5.This Article shall be without prejudice to any rule of national law establishing a period of time during which the performance of the contract may not begin.
6.Where another Union act governing specific financial services contains rules on the right of withdrawal, only rules of that Union act on the right of withdrawal shall apply to those specific financial services, unless otherwise provided in that other Union act. Where that other Union act gives Member States the right to choose between the right of withdrawal and an alternative, such as a reflection period, only the corresponding rules of that Union act shall apply to those specific financial services, unless otherwise provided in that other Union act.
7.By way of derogation from this Article, Member States may choose to instead apply the following provisions to the following financial services with regard to the right of withdrawal or a reflection period:
(a)Article 14(6) of Directive 2014/17/EU of the European Parliament and of the Councilnote to credit agreements exempted from the scope of that Directive by Article 3(2) thereof; and
(b)Articles 26 and 27 of Directive (EU) 2023/2225 of the European Parliament and of the Councilnote to credit agreements exempted from the scope of that Directive by Article 2(2) thereof.
Article 16cPayment of the service provided before withdrawal#
1.Where the consumer exercises the right of withdrawal under Article 16b, the consumer may only be required to pay for the service actually provided by the trader in accordance with the distance contract. The consumer shall pay for that service without undue delay. The amount payable shall not:
(a)exceed an amount which is in proportion to the extent of the service already provided in comparison with the full coverage of the distance contract;
(b)in any case be such that it could be construed as a penalty.
2.Member States may provide that consumers cannot be required to pay any amount for withdrawing from an insurance contract.
3.The trader may not require the consumer to pay any amount on the basis of paragraph 1 of this Article unless the trader can prove that the consumer was duly informed about the amount payable, in accordance with Article 16a(1), point (p). However, the trader may not require such payment if the trader commenced the performance of the contract before the expiry of the withdrawal period provided for in Article 16b(1) without the consumer’s prior request.
4.The trader shall, without any undue delay and no later than within 30 calendar days of the date on which the trader receives the notification of withdrawal, return to the consumer any sums the trader has received from him or her in accordance with the distance contract, except for the amount referred to in paragraph 1.
Article 16dAdequate explanations#
1.Member States shall ensure that traders are required to provide adequate explanations to the consumer concerning the proposed financial services contracts that make it possible for the consumer to assess whether the proposed contract and ancillary services are adapted to his or her needs and financial situation. Such explanations shall be provided to the consumer free of charge and prior to the conclusion of the contract. The explanations shall include the following elements:
(a)the required pre-contractual information;
(b)the essential characteristics of the proposed contract, including possible ancillary services;
2.Member States may specify the manner in which, as well as the extent to which, the explanations referred to in paragraph 1 are given. Member States may adapt the manner and the extent to the circumstances of the situation in which the financial service is offered, the person to whom it is offered and the nature of the financial service offered.
3.Member States shall ensure that, in the event that the trader uses online tools, the consumer shall have a right to request and to obtain human intervention at the pre-contractual stage, and in justified cases after the distance contract has been concluded, in the same language as that used for the pre-contractual information provided in accordance with Article 16a(1).
4.As regards compliance with the adequate explanation requirements laid down in this Article, the burden of proof shall be on the trader.
5.Where another Union act governing specific financial services contains rules on the adequate explanations to be provided to the consumer, only rules on the adequate explanations of that Union act shall apply to those specific financial services, unless otherwise provided in that Union act.
Article 16eAdditional protection regarding online interfaces#
1.Without prejudice to Directive 2005/29/EC and Regulation (EU) 2016/679, Member States shall ensure that traders, when concluding financial services contracts at a distance, do not design, organise or operate their online interfaces, as defined in Article 3(m) of Regulation (EU) 2022/2065 of the European Parliament and of the Councilnote, in a way that deceives or manipulates consumers who are recipients of their service or otherwise materially distorts or impairs their ability to make free and informed decisions. In particular, Member States shall adopt measures that, in accordance with Union law, address at least one of the following practices by traders:
(a)giving more prominence to certain choices when asking the consumers who are recipients of their service for a decision;
(b)repeatedly requesting that consumers who are recipients of the service make a choice where that choice has already been made, especially by presenting pop-ups that interfere with the user experience; or
(c)making the procedure for terminating a service more difficult than subscribing to it.
2.Member States may adopt or maintain more stringent provisions regarding the requirements for traders set out in paragraph 1, when the provisions are in conformity with Union law.
Chapter IV · Other consumer rights
Article 17Scope#
1.Articles 18 and 20 shall apply to sales contracts. Those Articles shall not apply to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or the supply of digital content which is not supplied on a tangible medium.
2.Articles 19, 21 and 22 shall apply to sales and service contracts and to contracts for the supply of water, gas, electricity, district heating or digital content.
Article 18Delivery#
2.Where the trader has failed to fulfil his obligation to deliver the goods at the time agreed upon with the consumer or within the time limit set out in paragraph 1, the consumer shall call upon him to make the delivery within an additional period of time appropriate to the circumstances. If the trader fails to deliver the goods within that additional period of time, the consumer shall be entitled to terminate the contract.The first subparagraph shall not be applicable to sales contracts where the trader has refused to deliver the goods or where delivery within the agreed delivery period is essential taking into account all the circumstances attending the conclusion of the contract or where the consumer informs the trader, prior to the conclusion of the contract, that delivery by 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 within the time limit set out in paragraph 1, the consumer shall be entitled to terminate the contract immediately.
3.Upon termination of the contract, the trader shall, without undue delay, reimburse all sums paid under the contract.
4.In addition to the termination of the contract in accordance with paragraph 2, the consumer may have recourse to other remedies provided for by national law.
Article 19Fees for the use of means of payment#
Member States shall prohibit traders from charging consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of such means.
Article 20Passing of risk#
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.
Article 21Communication by telephone#
Member States shall ensure that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate.The first subparagraph shall be without prejudice to the right of telecommunication services providers to charge for such calls.
Article 22Additional payments#
Before the consumer is bound by the contract or offer, the trader shall seek the express consent of the consumer to any extra payment in addition to the remuneration agreed upon 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 the consumer is required to reject in order to avoid the additional payment, the consumer shall be entitled to reimbursement of this payment.
Chapter V · General provisions
Article 22aHarmonised notice and harmonised label#
1.In order to ensure that consumers are well informed and can easily understand their rights throughout the Union, a harmonised notice shall be used for the provision of information pursuant to Article 5(1), point (e), and Article 6(1), point (l), and a harmonised label shall be used for the provision of information pursuant to Article 5(1), point (ea), and Article 6(1), point (la).
2.By 27 September 2025 the Commission shall, by means of implementing acts, specify the design and content of the harmonised notice referred to in paragraph 1.
3.The harmonised notice shall contain the main elements of the legal guarantee of conformity, including its minimum duration of two years as provided in Directive (EU) 2019/771 and a general reference to the possibility that the duration of the legal guarantee of conformity is longer under national law.
4.By 27 September 2025 the Commission shall, by means of implementing acts, specify the design and content of the harmonised label referred to in paragraph 1.
5.The harmonised notice and the harmonised label shall be easily recognisable and understandable for consumers and easy to use and reproduce for traders.
6.Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27a.
Article 23Enforcement#
1.Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.
2.The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing 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 24Penalties#
1.Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.
2.Member States shall ensure that the following non-exhaustive and indicative criteria are taken into account for the imposition of penalties, where appropriate:
(a)the nature, gravity, scale and duration of the infringement;
(b)any action taken by the trader to mitigate or remedy the damage suffered by consumers;
(c)any previous infringements by the trader;
(d)the financial benefits gained or losses avoided by the trader due to the infringement, if the relevant data are available;
(e)penalties imposed on the trader for the same infringement in other Member States in cross-border cases where information about such penalties is available through the mechanism established by Regulation (EU) 2017/2394 of the European Parliament and of the Councilnote;
(f)any other aggravating or mitigating factors applicable to the circumstances of the case.
3.Member States shall ensure that when penalties are to be imposed in accordance with Article 21 of Regulation (EU) 2017/2394, they include the possibility either to impose fines through administrative procedures or to initiate legal proceedings for the imposition of fines, or both, the maximum amount of such fines being at least 4 % of the trader’s annual turnover in the Member State or Member States concerned.
4.For cases where a fine is to be imposed in accordance with paragraph 3, but information on the trader’s annual turnover is not available, Member States shall introduce the possibility to impose fines, the maximum amount of which shall be at least EUR 2 million.
5.Member States shall, by 28 November 2021, notify the Commission of the rules and measures referred to in paragraph 1 and shall notify it, without delay, of any subsequent amendment affecting them.
6.With regard to infringements of the measures adopted pursuant to the provisions referred to in Article 3(1b) applicable to distance contracts for consumer financial services, Member States shall ensure that, when penalties are to be imposed in accordance with Article 21 of Regulation (EU) 2017/2394, they include the possibility either to impose fines through administrative procedures or to initiate legal proceedings for the imposition of fines, or both.
Article 25Imperative nature of the Directive#
If the law applicable to the contract is the law of a Member State, consumers may not waive the rights conferred on them by the national measures transposing this Directive.Any contractual terms which directly or indirectly waive or restrict the rights resulting from this Directive shall not be binding on the consumer.
Article 26Information#
Member States shall take appropriate measures to inform consumers and traders of the national provisions transposing this Directive and shall, where appropriate, encourage traders and code owners as defined in point (g) of Article 2 of Directive 2005/29/EC, to inform consumers of their codes of conduct.
Article 27Inertia selling#
The consumer shall be exempted from the obligation to provide any consideration in cases of unsolicited supply of goods, water, gas, electricity, district heating or digital content or unsolicited provision of services, prohibited by Article 5(5) and point 29 of Annex I to Directive 2005/29/EC. In such cases, the absence of a response from the consumer following such an unsolicited supply or provision shall not constitute consent.
Article 27aCommittee procedure#
1.The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Councilnote.
2.Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 28Transposition#
1.Member States shall adopt and publish, by 13 December 2013, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of these measures in the form of documents. The Commission shall make use of these documents for the purposes of the report referred to in Article 30.They shall apply those measures from 13 June 2014.When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2.The provisions of this Directive shall apply to contracts concluded after 13 June 2014.
Article 29Reporting requirements#
1.Where a Member State makes use of any of the regulatory choices referred to in Article 3(4), Article 6(7), Article 6(8), Article 7(4), Article 8(6), Article 9(1a) and (3), Article 16, second and third paragraphs, Article 16a(2) and (9), Article 16b(7) and Article 16e, it shall inform the Commission thereof by 19 December 2025, as well as of any subsequent changes.
2.The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, inter alia, on a dedicated website.
3.The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall consult stakeholders on that information.
Article 30Reporting by the Commission and review#
By 13 December 2016, the Commission shall submit a report on the application of this Directive to the European Parliament and the Council. That report shall include in particular an evaluation of the provisions of this Directive regarding digital content including the right of withdrawal. The report shall be accompanied, where necessary, by legislative proposals to adapt this Directive to developments in the field of consumer rights.
Chapter VI · Final provisions
Article 31Repeals#
Directive 85/577/EEC and Directive 97/7/EC, as amended by Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial servicesnote and by Directives 2005/29/EC and 2007/64/EC, are repealed as of 13 June 2014.References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex II.
Article 32Amendment to Directive 93/13/EEC#
In Directive 93/13/EEC, the following Article is inserted:‘Article 8a1.Where a Member State adopts provisions in accordance with Article 8, it shall inform the Commission thereof, as well as of any subsequent changes, in particular where those provisions:
—extend the unfairness assessment to individually negotiated contractual terms or to the adequacy of the price or remuneration; or,
—contain lists of contractual terms which shall be considered as unfair,
2.The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, inter alia, on a dedicated website.3.The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall consult stakeholders on that information.’
Article 33Amendment to Directive 1999/44/EC#
In Directive 1999/44/EC, the following Article is inserted:‘Article 8aReporting requirements1.Where, in accordance with Article 8(2), a Member State adopts more stringent consumer protection provisions than those provided for in Article 5(1) to (3) and in Article 7(1), it shall inform the Commission thereof, as well as of any subsequent changes.2.The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, inter alia, on a dedicated website.3.The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall consult stakeholders on that information.’
Article 34Entry into force#
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Article 35Addressees#
This Directive is addressed to the Member States.
Annex I
Information concerning the exercise of the right of withdrawal
A. Model instructions on withdrawal
1.Insert one of the following texts between inverted commas:
(a)in the case of a service contract or a contract for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium: ‘of the conclusion of the contract.’;
(b)in the case of a sales contract: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.’;
(d)in the case of a contract relating to delivery of a good consisting of multiple lots or pieces: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last lot or piece.’;
(e)in the case of a contract for regular delivery of goods during a defined period of time: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the first good.’.
2.Insert your name, geographical address, telephone number and email address.
3.If you are under obligation to provide a function to allow the consumer to withdraw from the contract concluded online, insert the following: ‘You can also exercise your right of withdrawal online at [insert internet address or another appropriate explanation of where the withdrawal function is available]. If you use this online feature, we will send you an acknowledgement of receipt of the withdrawal on a durable medium (e.g. by email), including its content and the date and time of its submission, without undue delay.’ If you give the option to the consumer to electronically fill in and submit information about his or her withdrawal from the contract on your website, insert the following: ‘You can also electronically fill in and submit the model withdrawal form or any other unequivocal statement on our website [insert internet address]. If you use this option, we will communicate to you an acknowledgement of receipt of such a withdrawal on a durable medium (e.g. by email) without delay.’
(a)insert:
—‘We will collect the goods.’; or,
—‘You shall send back the goods or hand them over to us or … [insert the name and geographical address, where applicable, of the person authorised by you to receive the goods], without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.’
(b)insert:
—‘We will bear the cost of returning the goods.’,
—‘You will have to bear the direct cost of returning the goods.’,
—If, in a distance contract, you do not offer to bear the cost of returning the goods and the goods, by their nature, cannot normally be returned by post: ‘You will have to bear the direct cost of returning the goods, … EUR [insert the amount].’; or if the cost of returning the goods cannot reasonably be calculated in advance: ‘You will have to bear the direct cost of returning the goods. The cost is estimated at a maximum of approximately … EUR [insert the amount].’; or
—If, in an off-premises contract, the goods, by their nature, cannot normally be returned by post and have been delivered to the consumer’s home at the time of the conclusion of the contract: ‘We will collect the goods at our own expense.’; and,
6.In the case of a contract for the provision of services or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, insert the following: ‘If you requested to begin the performance of services or the supply of water/gas/electricity/district heating [delete where inapplicable] during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.’.
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day 1.
To exercise the right of withdrawal, you must inform us [2] of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or email). You may use the attached model withdrawal form, but it is not obligatory.[3]
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. 4
5
6
Instructions for completion:
B. Model withdrawal form (complete and return this form only if you wish to withdraw from the contract)
—I/Wenote hereby give notice that I/Wenote withdraw from my/ournote contract of sale of the following goodsnote/for the provision of the following servicenote,
—Ordered onnote/received onnote,
—Name of consumer(s),
—Address of consumer(s),
—Signature of consumer(s) (only if this form is notified on paper),
—Date
Annex II
| Directive 85/577/EEC | Directive 97/7/EC | This Directive |
|---|---|---|
| Article 1 | Article 3 read in conjunction with Article 2, points 8 and 9, and Article 16, point (h) | |
| Article 1 | Article 1 read in conjunction with Article 2, point 7 | |
| Article 2 | Article 2, points 1 and 2 | |
| Article 2, point 1 | Article 2, point 7 | |
| Article 2, point 2 | Article 2, point 1 | |
| Article 2, point 3 | Article 2, point 2 | |
| Article 2, point 4, first sentence | Article 2, point 7 | |
| Article 2, point 4, second sentence | — | |
| Article 2, point 5 | — | |
| Article 3(1) | Article 3(4) | |
| Article 3(2), point (a) | Article 3(3), points (e) and (f) | |
| Article 3(2), point (b) | Article 3(3), point (j) | |
| Article 3(2), point (c) | — | |
| Article 3(2), point (d) | Article 3(3), point (d) | |
| Article 3(2), point (e) | Article 3(3), point (d) | |
| Article 3(3) | — | |
| Article 3(1), first indent | Article 3(3), point (d) | |
| Article 3(1), second indent | Article 3(3), point (l) | |
| Article 3(1), third indent | Article 3(3), point (m) | |
| Article 3(1), fourth indent | Article 3(3), points (e) and (f) | |
| Article 3(1), fifth indent | Article 6(3) and Article 16, point (k) read in conjunction with Article 2, point 13 | |
| Article 3(2), first indent | Article 3(3), point (j) | |
| Article 3(2), second indent | Article 3(3), point (f) (for rental of accommodation for residential purposes), point (g) (for package travel), point (h) (for timeshare), point (k) (for passenger transport with some exceptions) and Article 16, point (l) (exemption from the right of withdrawal) | |
| Article 4, first sentence | Article 6(1), points (b), (c) and (h), and Article 7(1) and (2) | |
| Article 4, second sentence | Article 6(1), point a and Article 7(1) | |
| Article 4, third sentence | Article 6(1) | |
| Article 4, fourth sentence | Article 10 | |
| Article 4(1), point (a) | Article 6(1), points (b) and (c) | |
| Article 4(1), point (b) | Article 6(1), point (a) | |
| Article 4(1), point (c) | Article 6(1), point (e) | |
| Article 4(1), point (d) | Article 6(1), point (e) | |
| Article 4(1), point (e) | Article 6(1), point (g) | |
| Article 4(1), point (f) | Article 6(1), point (h) | |
| Article 4(1), point (g) | Article 6(1), point (f) | |
| Article 4(1), point (h) | — | |
| Article 4(1), point (i) | Article 6(1), points (o) and (p) | |
| Article 4(2) | Article 6(1) read in conjunction with Article 8(1), (2) and (4) | |
| Article 4(3) | Article 8(5) | |
| Article 5(1) | Article 8(7) | |
| Article 5(2) | Article 3(3), point m | |
| Article 6(1) | Article 9(1) and (2), Article 10, Article 13(2), Article 14 | |
| Article 6(2) | Article 13 and Article 14(1), second and third subparagraphs | |
| Article 6(3), first indent | Article 16, point (a) | |
| Article 6(3), second indent | Article 16, point (b) | |
| Article 6(3), third indent | Article 16, point (c) and (d) | |
| Article 6(3), fourth indent | Article 16, point (i) | |
| Article 6(3), fifth indent | Article 16, point (j) | |
| Article 6(3), sixth indent | Article 3(3), point (c) | |
| Article 6(4) | Article 15 | |
| Article 7(1) | Article 18(1) (for sales contracts) | |
| Article 7(2) | Article 18(2), (3) and (4) | |
| Article 7(3) | — | |
| Article 8 | — | |
| Article 9 | Article 27 | |
| Article 10 | —(but see Article 13 of Directive 2002/58/EC) | |
| Article 11(1) | Article 23(1) | |
| Article 11(2) | Article 23(2) | |
| Article 11(3), point (a) | Article 6(9) for the burden of proof concerning pre-contractual information; for the rest: – | |
| Article 11(3), point (b) | Article 24(1) | |
| Article 11(4) | — | |
| Article 12(1) | Article 25 | |
| Article 12(2) | — | |
| Article 13 | Article 3(2) | |
| Article 14 | Article 4 | |
| Article 15(1) | Article 28(1) | |
| Article 15(2) | Article 28(1) | |
| Article 15(3) | Article 28(1) | |
| Article 15(4) | Article 30 | |
| Article 16 | Article 26 | |
| Article 17 | — | |
| Article 18 | Article 34 | |
| Article 19 | Article 35 | |
| Article 5(1) | Articles 9 and 11 | |
| Article 5(2) | Article 12 | |
| Article 6 | Article 25 | |
| Article 7 | Articles 13, 14 and 15 | |
| Article 8 | Article 4 |
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.