Proposal for a Directive on Consumer Rights
In October 2008, the Commission issued a
Proposal for a Directive of the European Parliament and of the Council on consumer rights.
This instrument is supposed to reform and replace the Doorstep Selling, Distance Contracts, Unfair Terms and Sales and Guarantees Directives.
I. The adequate harmonisation approach
Art. 4 of the proposal contains a full harmonization approach. There is currently an intense debate whether the full harmonisation approach is adequate.
1. Minimum harmonisation approach
- It is unclear whether Art. 95 EC functions as an adequate base for minimum harmonisation measures, since
- minimum harmonisation causes a fragmented regulatory framework across the Community which causes significant compliance costs for businesses wishing to trade cross-border.
Cf. the section Competences for EC consumer legislation
2. Full harmonisation approach
- Arguably, full harmonisation on a broad scale is inconsistent with the basic tenets of subsidiarity under Art. 5(2) and (3) EC.
- Full harmonisation lowers the level of consumer protection in the legal orders of many Member States.
- Is full harmonisation of consumer contract law sensible if the national default rules of contract law vary?
Cf. Art. 6(2), 30(3), 38, 41, 42, Annex II lit. d of the proposal.
- The extent of the full harmonisation approach is unclear, i.e. would the definitions of 'the consumer' provided by the proposal be binding upon the Member States?
3. Modulated approach
- Full harmonisation with respect to more technical matters (i.e. length and starting point of period of withdrawal), otherwise minimum harmonisation.
II. Scope and Definitions
- Art. 3 defines the scope. Subject to the exceptions in Art. 3(2) to (4), any sales or services contracts between a consumer and trader is covered.
- Art. 2 (1) and (2) contain the standard transaction definitions of 'consumer' and 'trader'.
- Art. 2 further contains definitions i.e. regarding sales and services contracts, off-premises and distance contracts, durable medium etc.
III. Common provisions for all types of contracts
- Article 5 contains general information requirements (note that the consequence of a breach are up to the Member States under Art. 6(2))
- Art. 7 adresses the responsibility of intermediaries
- Art. 41, 42: Enforcement and penalties are left to the Member States
- Art. 43: Imperative nature of the provisions
- Art. 44: Member States should inform consumers about their rights
- Art. 45: inertia selling
- Note: the proposal does not include a provision regarding the requisite language
IV. Off-premises (doorstep selling) and distance contracts
- Compared to the Distance Selling Directive, Art. 2(8) contains a wider definition of off-premises contracts.
- Compared to the Distance Contracts Directive, Art. 2(10) contains a wider definition of distance contract.
- Art. 2(10) defines 'durable medium', the definition reflects Art. 2(f) of the Directive on the Distance Marketing of Financial Services (2002/65/EC).
- Art. 8 lays down specific information requirements for off-premises and distance contracts, the formal requirements are set for by Art. 10 & 11.
- The length of the withdrawal period consists of 14 calendar days, starting points are different for off-premises contracts and distance contracts, cf. Art. 12.
- Art. 16 & 17 name the obligations of the parties in case of withdrawal, Art. 17(2) constituting a change from the ECJ decision in
Pia Messner
- Art. 19 & 20 address excluded contracts & exceptions from the right of withdrawal. Note in particular Art. 19 (1)(d)! There is no longer an
exception for 'goods which, by reason of their nature, cannot be returned'.
V. Sales contracts and Guarantees
- Art. 2(3), (4) defines the scope of applicability of Art. 21 et seq. (in case of mixed contracts: Directive is applicable to sales part only, cf. Art. 21(1).
- Art. 22, 23 introduce rules on delivery and the passing of risk
- Art. 24 mirrors Art. 2 of the Sales Directive.
- Art. 25 and 26 reflect Art. 3 of the Sales Directive.
- Art. 26(2): trader's choice whether to repair or to replace (in contrast to Art. 3(3) of the Consumer Sales and Guarantees Directive).
- Art. 26(4)(a) and (d) are not familiar from the Sales Directive
- Art. 27 (1) corresponds to Art. 3(2) and (3) 'free of charge', there is no parallel to Art. 3(4) Sales Directive.
- Art. 27(4) introduces damages claims - unclear, which kind of damage is supposed to be covered (including non-economic loss?) and whether member states are allowed to maintain a fault-based damages scheme.
- Art. 28 (4): consumer is required to give notice of the lack of conformity.
- Definition of guarantee extends to guarantees which are not 'free of charge' requirement, cf. Art. 2 (18).
- There is no equivalent to Art. 4 of the Consumer Sales and Guarantees Directive (right of redress).
VI. Unfair Contract Terms
- Transparency: Art. 31 (2), (3) is an improvement from Art. 5, recital 20, Annex lit. (i) of the Unfair Terms Directive
- Art. 34 and Annex II: black list of terms (unfair in all circumstances).
- Art. 35 and Annex III: grey list of terms (generally considered to be unfair).
- Art. 39: MS must inform the Commission regarding terms which their courts have deemed to be unfair.
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