Transcript Directive on Consumer Rights

Directive of the European Parliament and
of the Council on Consumer Rights
Liz Pope ([email protected])
Property Registration Authority (Ireland)
ELRA Conference
Tallinn 1st and 2nd December 2011
Directive
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Amends Council Directive 93/13/EEC and
1999/44/EC
 Repeals Council Directive 85/577/EEC [consumer
protection re contracts negotiated away from
business premises] and 97/7/EC [consumer
protection in respect of distance contracts]
 Why? Simplify/update the rules, close unwanted
gaps and remove inconsistencies
Purpose
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High level of consumer protection provided for Art
169(1) and 169(2) (TFEU) through measures
adopted pursuant to Art 114
 Internal market without internal frontiers/free
movement of goods and services
 Right balance between consumer protection and
competitiveness of enterprises
 More fully exploit the cross border potential of
distance selling
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Without prejudices to national law in area of
contract law not regulated by the Directive e.g.
validity of a contract for lack of consent.
 MS may maintain or introduce language
requirements regarding information/terms
 Not to affect national law on legal representation
e.g. agent/trustee
 Applies to all traders whether public or private
Some Definitions
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Definition of consumer: natural person [persons
who are acting outside their trade, business, craft or
profession]. If dual purpose, if trade purpose not
predominant, deemed to be consumer.
 Digital content: data produced and supplied in
digital form e.g. computer programmes, apps,
games, music, videos or texts irrespective of means
of access
Definitions cont’d
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Distance Contract: contract is concluded between trader and
consumer under organised distance sales or service
provision scheme, with exclusive use of means of distance
communication (e.g. mail order, Internet, fax, phone) up to
an including time contract concluded.
Will cover e.g. consumer visits to a store for information but
later purchases and concludes by distance. But, will not
apply contract negotiated on business premises and finally
concluded at distance, or where initiated by distance but
concluded at business premises of the trader.
Definitions cont’d
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Off-premises contract: concluded in physical
presence of both trader and consumer in a place not
business premises of the trader (e.g. consumer’s
home or workplace)
 Business premises: whatever form servers as usual
place of business of trader (widely interpreted)
 Apply to contacts relating to the supply of utilities
Scope of the Directive
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Directive concerns contract concluded between traders and
consumers. It should not affect national law in contracts relating to
employment, succession rights, family law, incorporation of
companies or partnership agreements
Establishes rules on information to be provided for distance
contracts, off premises contracts and contracts other than off
premises contracts. Regulates right of withdrawal
Without prejudice to Rome 1
Information requirements to complete those of 2006/123/EC on
services in internal market and 2003/31/EC on legal aspects of
information society services and electronic commerce
Member States should be free to decide to extend the provisions to
areas not falling within its scope
Immovable Property [Article 3 (3)(e), Recital 26]
Not applicable:
 to contracts related to the transfer of immovable property or rights
thereto
 Contracts relating to the creation or acquisition of immovable
property
 Contracts for construction of new buildings or substantial conversion
of existing buildings
 Rental accommodation for residential purposes
 May relate to property yet to be developed
Already subject to specific requirements in national legislation.
Outside the scope of this Directive. However, service contracts
relating to construction of annexes like a veranda or garage and
to those related to repair and renovation other than substantial
conversion are included in its scope as are contacts relating to
the supply of services a real estate agent and to contracts
relating to rental of non-residential accommodation
Other exclusions
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MS may decide not to apply where goods/services minor
value n/e €50
 Social services excluded
 Healthcare special regulations due to complexity excluded
 Gambling excluded
 Does not apply to consumer financial services, package
travel and timeshare
 Obligation to inform in advance re deposit such as block on
credit card
 Information to be provided mandatory and not to be altered.
Right of withdrawal
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Distance, can’t see the goods, should have right of withdrawal. Opportunity to
test and inspect.
Obligation at start to inform if any delivery restrictions and means of payment
Consumer fully read and understand main elements before placing order
Existing varying lengths of withdrawal period between MS causing uncertainty
and compliance cost. Same period to apply [14 days from date of conclusion of
contract, sales 14 days after consumer acquires physical possession of goods or
if in stages, from date of last delivery]. Calendar days [Council Reg. No.
1182/71]
If trader fails to inform consumer, withdrawal period to be extended.
Consumer should remain free to withdraw in his own words once statement
unequivocal, burden of proof lies with the consumer
Should be option of web based withdrawal form
Trader to reimburse all payments inc expenses of delivery borne by consumer.
Consumer to return not later than 14 days after informing trader of decision to
withdraw
Right of withdrawal
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Right to withdraw not appropriate in certain circumstances
depending on nature of goods/services
Should not apply to goods made specifically to order
Main cause dispute concerns delivery (damage, late or
partial), should remain subject to national law
Sales contracts, if no alternative agreement not later than 30
days from date of conclusion
Trader prohibited from charging consumers fees that exceed
cost borne by trader for certain means of payment
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Consumer protected against any risk of damage or
loss to goods occurring before he has physical
possession
 MS to lay down penalties for infringement of the
Directive (effective, proportionate and dissuasive)
 Consumers to be aware of rights at point of sale
 Consumer exempted form obligation to pay for any
unsolicited goods or services
Implications of registration of title
Articles 3 and 26
Not applicable for creation acquisition or transfer of
immovable property or rights therein
Or for construction new builds, substantial conversion, or
rental of residential accommodation
However does apply to non substantial conversions and non
residential rentals so may have implications for those
contracts which are dealt with as distance contracts and for
therefore for Registrars who investigate contracts prior to
effecting registration
Summary-top ten benefits consumers
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Eliminate hidden charges and cost
Increased price transparency
Banning pre-ticked boxes on websites
14 days change mind
Improved refund rights
EU wide model withdrawal form
Eliminates surcharges credit cards
Clearer info on who pays for returned goods
Better consumer protection
Common rules for businesses, easier to trade EU
The End
Thank you