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The new Consumer Rights Directive – information duties, digital products, right of withdrawal Conference dedicated to European Consumer Day – Vilnius, 18 March 2014 Martins Prieditis Policy Officer Unit Consumer and Marketing Law DG Justice, European Commission Consumer Rights Directive 2011/83/EU (CRD) Transposition deadline – 13 December 2013 So far notification of transposition by 14 Member States Transposition measures to apply to contracts concluded as from 13 June 2014 Until then, time for adaptations by businesses Guidance from the Commission to facilitate uniform application across the EU References to national transposition measures in EUR-Lex Origins of the Directive • Commission Communication in 2004 • Green Paper on the Review of the Consumer Acquis and public consultation in 2007 • Commission Proposal for a Directive of 8 October 2008 Scope of the Proposal Directives subject to the review: • Consumer Sales and guarantees • Unfair Contract Terms • Distance Selling • Doorstep Selling • Timeshare • Package Travel • Price Indication • Injunctions Proposal for a Directive on Consumer Rights Directive – final adopted text • Only replaces the Distance Selling and Doorstep Selling Directives • Pre-contractual information requirements for distance and off-premises contracts • Rules for the conclusion of off-premises and distance contracts – form of the contract, contract confirmation, consent to immediate performance etc. • Right of withdrawal from off-premises and distance contracts • Minimum information requirements regarding onpremises contracts • Several provisions applicable to all contracts – delivery and passing of risk, payment surcharges etc. Rules added during the negotiation: • Payment surcharges (Article 19) • Cost of post-contractual telephone contacts (Article 21) • Rules to deal with "Internet cost traps": Information about characteristics, price and duration of the contract have to be given prominently directly before the consumer places his order The consumer must explicitly confirm that the order implies an obligation to pay when activating a button or similar function • Contracts for online digital content: Information requirements on functionality & interoperability Specific rules on the right of withdrawal Scope of the Directive • Full harmonisation is the principle, with some options for Member States: Additional information requirements for on-premises contracts Linguistic requirements for contractual information Written confirmation for contracts concluded by telephone Non-application of the CRD to off-premises contracts below 50 € Non-application of the light information regime for offpremises contracts for (urgent) maintenance/ repairs under 200 € Prohibition of payments during a given period after the conclusion of off-premises contracts CRD regulatory choices (Article 29) – information to stakeholders http://ec.europa.eu/justice/consumer-marketing/rights-contracts/ The Right of Withdrawal • 14 days from the conclusion of the contract (services, public utilities, online digital content) or from delivery/physical possession (goods) • Withdrawal period extended by 1 year if information on the right of withdrawal (withdrawal form) has not been provided • Consumers may withdraw by letter, e-mail, phone call, or sending back the goods with a clear statement Trader's obligations - goods • Reimburse all payments from the consumer including cost of (standard) delivery within 14 days • The trader may withhold reimbursement until he has received the goods back or the consumer supplied evidence of having sent back the goods • The trader may not use vouchers for the reimbursement, unless vouchers were used for the initial payment Obligations of the consumer - goods • Send back the goods within 14 days • Pay the cost of returning the goods, unless the trader failed to inform that the consumer has to bear that cost • « Bulky » goods which « cannot normally be returned by post »: the trader has to collect goods delivered offpremises and, for distance contracts, inform the consumer about the cost of return in advance (at least an estimate of the maximum cost) – in case of breach, the trader bears the cost of return • Consumers are liable for diminished value « resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods », except where not informed about the right of withdrawal Exceptions • A list of exceptions (Article 16) including: • Goods liable to deteriorate or expire rapidly (e.g. certain foodstuffs) • Newspapers, periodicals and magazines (but subscription contracts are subject to the right of withdrawal) • Public auctions (where consumers are given the possibility to attend in person) – however, the right of withdrawal now applies to online B2C auctions Right of Withdrawal – services • • • • No right of withdrawal for service contracts which have been fully performed, if: The performance began with the consumer’s prior express consent The consumer acknowledged that he will lose the right of withdrawal once the contract is fully performed The consumer must expressly request that the performance of the service begins during the withdrawal period, and the trader must inform that compensation will have to be paid in that case If the consumer withdraws before the service has been fully performed he pays a pro-rata compensation for the services performed No cost for the consumer if the trader failed to provide the information or if he did not expressly request performance Online Digital content • Definition: « data which are produced and supplied in digital form » • Computer programs, games, music video, irrespective of mode of access • Specific information requirements on functionality (including technical protection measures) and interoperability • No right of withdrawal if the performance began with the consumer’s express consent and acknowledgement that he hereby loses his right of withdrawal • Strong sanction: If no consent, acknowledgement or confirmation of these, the consumer will not have to pay for digital content supplied Pre-contractual information • • Article 6(1) – list of pre-contractual information requirements for distance/ off-premises contracts Article 8(2) – subset of information to be provided prominently directly before the conclusion of the contract: main characteristics (Article 6(1)(a)) total price (Article 6(1)(e)) duration of the contract & the conditions for terminating the contract (Article 6(1)(o)), including minimum duration of the contract, where applicable (Article 6(1)(p)) • Article 8(4) – subset of information to be provided where there are constraints on the communication medium used to conclude the contract (e.g. SMS): + identity of the trader (Article 6(1)(b)) + conditions for withdrawal (Article 6(1)(h)) 16 Draft Guidance and model for the display of key information (for online digital products) The Model for the online display of key information on online digital products Principles Collaborative: stakeholders were invited contribute to the development of the model Optional: traders are invited to use it, but it is not a legal obligation Flexible: must be adaptable to the presentational aspects of the traders' website or sales channel, and to the requirements of the different products Graphical: icons and a table-like presentation will facilitate comprehension, especially for inexperienced consumers of online digital content Short: only information and icons that apply to the product should be displayed 18 19 20 The Model for the online display of key information on online digital products 21