PDF to HTML - Convert PDF files to HTML files

Europaudvalget 2009-10
KOM (2008) 0614 Bilag 3
Offentligt

NB: T

HIS IS WORK IN PROGRESS

–

THE DRAFT DOES NOT REPRESENT THE OFFICIAL VIEWS OF THE

OMMISSION AND MAY NOT BE PUBLISHED IN ITS

PRESENT FORM

Brussels 28 September 2009

THE PROPOSAL FOR A DIRECTIVE ON CONSUMER RIGHTS: IMPACT ON LEVEL OF NATIONAL CONSUMER

PROTECTION

COMPARATIVE TABLE

On 8 October 2008 the European Commission proposed a Directive of the European Parliament and of the Council on Consumer Rights. The

attached table illustrates the

impact of the most relevant issues addressed in the Proposal on the existing levels of consumer protection

across the EU.

This analysis of the regulatory impact of the proposal is in addition to that carried out in the impact assessment accompanying the proposal.

While such regulatory analysis is not a requirement for Commission impact assessments, a number of requests for clarification have been

raised by Member States in the Council Working Party, by the European Parliament and by consumer and business stakeholders. The table

does not purport to provide an exhaustive analysis of the effects of the proposal on national laws, which would require a through screening of

the national laws. It must be borne in mind that it is for the Member States, and not for the Commission, to screen their own legislation in order

the check its compatibility with the Directive. For this reason, this note should be regarded as a living document that may be completed with

the help of the Member States during the upcoming meetings of the working group in Council. For example, the Commission will verify with

the Member States whether or to what extent Article 5 and Article 9 (pre-contractual information) need to be included in the table. The table

may therefore be completed with the input of Member States.

The table covers only those provisions (e.g. the length of the withdrawal period and of the legal guarantee) for which it was possible to assess

how the proposal would affect consumer protection in the various Member States in an unequivocal manner. Several provisions are not,

PDF to HTML - Convert PDF files to HTML files

however, included in the paper since it is not always possible to undertake a mathematical "black and white" assessment (i.e. using plus and

minus) of the impact of the proposal on national consumer rights.

For many provisions the assessment will be subjective since there will be arguments on both sides. A good example is Article 19, which

exempts online auctions from the right of withdrawal. In 17 Member States, consumers buying at an auction (whether online or offline) have

no right of withdrawal. Only 10 Member States distinguish between public auctions where the consumer enjoys no right of withdrawal and

online auctions (eBay type auctions) where the consumer, after succeeding with his or her bid, may withdraw from the auction. On the one

hand, it may be argued that the proposal by exempting online auctions from the right of withdrawal will reduce consumer protection in those

10 Member States. On the other hand, it may be maintained, and this is our opinion, that in the case of online auctions granting a right of

withdrawal to the successful bidder harms the legitimate expectations of the unsuccessful bidders. If the successful bidder finds out, for

example, that his bid was out of his or her price range, he or she could simply withdraw from the contract hoping that the next auction would

lead to a better outcome. This would certainly cause detriment to the unsuccessful bidders. Other examples include the obligation of the

consumer in Article 14(1) to notify the withdrawal to the trader by means of a "durable medium" (i.e. using a letter, fax or at least an e-mail).

This could be seen as a burden on the consumer compared to a situation where no formal requirements apply, allowing the consumer to

withdraw orally. In the Commission's view, however, a requirement to notify on a durable medium is more favourable for the consumer since it

ensures that he will be able to prove that he withdrew on time in case the trader disputes this fact.

For obvious reasons the table also does not include the provisions which will have no impact on consumer rights (e.g. Article 1, objective).

A great variety of information requirements apply under national laws, many of which do not aim at protecting the economic interests of

consumers. The Member States have referred to a number of such information requirements during the discussions in the Council Working

PDF to HTML - Convert PDF files to HTML files

Party. It will then be possible to assess this regulatory impact only after the Member States have properly screened their legislation in this area.

For the same reasons a complete analysis of the impact of the fully harmonised grey and black lists attached to the proposal requires an

equivalent screening of the clauses included in national black and grey lists. This process has been recently initiated in the Council Working

Group. Only following the completion of the process will it be possible to fully assess the regulatory impact of the harmonised lists. From the

initial discussions in the Council Working Group, it appears, however, that such a comparison may prove to be a challenging task. Firstly, the

legal effects of the national grey and black lists sometimes differ from those in the proposal (e.g. in some Member States, even black listed

terms may eventually be judged fair and legitimate). Secondly, some Member States have longer lists because they have simply split up some

of the items in the lists in the proposal.

We believe Article 20 (exemptions from distance and off-premises contracts) will have a neutral impact on consumer protection since most

national laws on distance and off-premises contracts do not apply to the transactions listed in this provision. The only exemption that requires

clarification is Article 20(1)(a) since it is unclear to what extent the Member States exempt distance and off-premises contracts relating to

immovable property rights.

PDF to HTML - Convert PDF files to HTML files

NB: T

HIS IS WORK IN PROGRESS

–

THE DRAFT DOES NOT REPRESENT THE OFFICIAL VIEWS OF THE

OMMISSION AND MAY NOT BE PUBLISHED IN ITS

PRESENT FORM

EVALUATION OF IMPACTS ON NATIONAL LEVEL OF CONSUMER PROTECTION

ISSUE

(including explanation)

CONTESTED

(indication of rules which will

have to be deleted once the

Directive is adopted)

STATUS QUO

INCREASE

Article 2 - Wider definition of off-

premises contracts – no monetary

threshold

Belgium, Cyprus, Czech

Republic, Denmark, Latvia,

Luxembourg,

France,

Greece,

Hungary

and

Slovakia:

in those Member

States, consumers enjoy a

protection irrespective of

the value of the off-premises

contract

the

Commission's proposal.

Austria (€15 or €45),

Bulgaria (€61), Estonia

(€15), Lithuania (€58),

Malta

(€47),

the

Netherlands (€34), Poland

(€10), Portugal (€60 but not

applicable

the

withdrawal right), Finland

(€15), Germany (€40),

Ireland (€51), Italy (€26),

Romania (€30), Slovenia

(€12), Spain (€48), Sweden

(€32), United Kingdom

(€51):

in those Member

States consumers are not

protected

for

contracts

below a monetary threshold

which differs from one

Member State to the other

(see above).

PDF to HTML - Convert PDF files to HTML files

Article 2 - Wider definition of off-

premises contracts – solicited visits

included

France,

Italy,

Latvia,

Luxembourg,

United

Kingdom (since October

2008) and Poland:

in those

Member States, consumers

enjoy a protection for all

types of solicited visits.

Austria, Czech Republic,

Hungary,

Netherlands,

Spain, Bulgaria, Cyprus,

Estonia, Germany, Greece,

Ireland, Portugal, Romania,

Slovenia, Slovakia, Sweden,

Belgium, Denmark, Finland,

Lithuania and Malta:

those

Member

States

consumers are not protected

for certain types of solicited

visits

under

complex

conditions which vary from

one Member State to the

other (for more details, see

page 58 of the Annex to the

Impact Assessment Report)

Austria, Belgium, Bulgaria,

Cyprus, Denmark, Finland,

Estonia, Germany, Italy,

Luxembourg, Malta, the

Netherlands,

Poland,

Portugal,

Romania,

Slovenia, Spain, Sweden,

Ireland, Greece, the UK

– in

those

Member

States

consumers will gain from

the proposal as they are not

currently protected.

Article 2 - Wider definition of distance

contracts

The

proposal

extends

consumer

protection rules – i.e. the right to

withdrawal – to situations when a

consumer buys goods/services at a

distance from a trader who only

occasionally engage in distance

contracts.

Czech Republic, Hungary,

France, Lithuania, Slovakia

and Latvia:

in those

Member States consumers

are already protected when

buying goods/services at a

distance by an occasional

sale

PDF to HTML - Convert PDF files to HTML files

Article 2 - Exclusion of contracts at fairs

and markets from the definition of off-

premises contracts

Latvia, Slovenia and Belgium

(partly):

in those Member States,

consumers are protected for

contracts concluded at fairs.

However, as regards Belgium,

consumers are protected only for

sales where no full payment is

made at the fair and the value

exceeds €200.

Austria, Czech Republic,

Hungary,

Netherlands,

Spain, Bulgaria, Cyprus,

Estonia, Germany, Greece,

Ireland, Portugal, Romania,

Slovakia, Sweden, Denmark,

Finland, Lithuania, Malta,

France, Italy, Luxembourg,

United

Kingdom

and

Poland:

in those Member

States, consumers are not

protected when buying at a

fair or at a market.

Article 6(1) - Rules on hidden charges

Traders have to explicitly inform

consumers about all charges on top of

the price. If a trader does not inform the

consumer, the latter does not have to pay

those additional charge

Article 9(f) – Information that the

contract is covered by consumer

protection rules – i.e. the consumer is

protected.

In the context of distance contracts (e-

commerce) the consumer should be

informed upfront whether he is dealing

with a trader and that the benefits from

consumer protection rules.

All Member States. To the

best of our knowledge, no

Member State provides

consumer with such a clear-

cut

protection

against

hidden charges.

All Member States. To the

best of our knowledge, no

Member State provides for

such an explicit information

requirement.

PDF to HTML - Convert PDF files to HTML files

Article 12 - An EU wide 14 days cooling

off period for distance and off premises

contracts

Malta and Slovenia:

in those

Member States consumers enjoy

15 calendar days cooling-off

period

Cyprus, Czech Republic,

Denmark, Estonia, Finland,

Latvia, Portugal, Sweden

and Germany:

in those

Member States consumers

already enjoy 14 calendar

days (or two weeks)

cooling-off period

Austria, Belgium, Bulgaria,

Spain, Ireland, Lithuania,

Luxembourg,

the

Netherlands, Slovakia, the

UK, Poland and Hungary:

in those Member States

consumers have shorter

cooling-off

periods

(between 7 and 10 working

days).

Article 12 – starting point of the

withdrawal period for off-premises-

contracts

Denmark, Hungary, Greece, Italy

(in

exceptional

cases),

Luxembourg, Portugal, Slovakia,

Slovenia, Spain (case law),

Sweden:

from the moment of

delivery of goods, if later than

conclusion of the contract

Cyprus:

delivery of goods or day

after conclusion of the contract if

the latter is later

Finland:

receipt of a specific

information form or, if later,

delivery of the good

Latvia:

always delivery of goods

Austria, Estonia, Germany,

Italy, Lithuania, Poland:

receipt of the information on

the right of withdrawal

Czech Republic, Belgium,

France, Ireland,

Malta,

UK:

conclusion of the

contract (if information on

the right of withdrawal

received)

Article 13 – where the consumer is not

informed about the right to withdraw,

the withdrawal period expires of 3

months after the trader has fully

For distance contracts:

Germany:

there is no cut-off date

- the withdrawal period is

For distance contracts:

Czech Republic

For distance contracts:

Austria, Belgium, Denmark,

Estonia, Hungary, Ireland,

PDF to HTML - Convert PDF files to HTML files

performed the contract (in the context of

off-premises and distance sales).

unlimited;

Finland and Sweden:

the "withdrawal period" is one

year;

Greece:

there is no cut-off

date - the withdrawal period is

unlimited unless the trader

provides the information within

the first 3 months; in

the UK:

the

withdrawal period is 3 months

and 7 days from the delivery of

the goods.

For off-premises contracts:

All Member States:

there is no

cut-off date - the withdrawal

period should be unlimited

(following ECJ judgement in the

Heininger case).

Italy, Latvia, Luxemburg,

Malta, Poland, Portugal,

Slovakia, Slovenia, Spain:

in those Member States the

consumer loses the right to

withdraw 3 months after the

delivery of goods or

conclusion of a contract for

services

(the

Proposal

increases

consumer

protection for services).

Lithuania and Cyprus:

those Member States the

consumer loses the right to

withdraw 3 months after the

conclusion of a contract (the

Proposal

increases

consumer protection both

for goods and services).

All other Member States.

To the best of our

knowledge the consumer

bears direct costs of

returning goods.

Austria and Italy:

situation

comparable to the proposal

– consumer might be

obliged to cover these

costs under the contract

Article 17(1) – in case of withdrawal the

consumer has to bear the direct costs of

returning the goods to the trader

Estonia, Finland, Greece, Spain:

in those Member States the trader

always covers the cost of

retuning goods.

Germany:

as a general rule, the

trader bears the costs of the

return. The costs of return may

be imposed upon the consumer

only in exceptional cases where

the price of the item to be

returned does not exceed € 40.

PDF to HTML - Convert PDF files to HTML files

Article 19 – exemption from the right of

withdrawal for distance sale of

newspapers, periodicals and magazines.

Estonia, Denmark and Greece:

those Member States consumers

may withdraw from any distance

sale of newspapers (but not of

periodicals and magazines)

Austria:

consumers

may

withdraw from any distance sale

of periodicals and magazines but

NOT newspapers,

Finland, Germany:

in those

Member States consumers may

withdraw from any distance sale

of newspapers, periodicals and

magazines if offered by cold-

calling

All Member States

(except

Austria, Estonia, Finland

Denmark,

Greece

and

Germany):

consumers do

not have the right to

withdraw

from

these

contracts.

Article 16(2) in combination with article

17(2) - trader's right to withhold

reimbursement

If the consumer withdraws, the proposal

introduces a right for traders to

withhold reimbursement until receiving

the goods or getting evidence from the

consumer of having sent the goods back.

Article 22 (1) – deadline for delivery

On the one hand, consumer

protection will decrease in all

Member States (current directive

obliges the trader to reimburse

the consumer as soon as possible

and always within 30 days). On

the other hand, this new rule

protects traders against dishonest

consumers, which do not intend

to return the product.

France and Germany:

General

contract law stipulates that the

Finland,

Netherlands,

Hungary,

Poland,

PDF to HTML - Convert PDF files to HTML files

contract must be performed

immediately unless otherwise

agreed.

Latvia, Lithuania, Slovenia:

30 days from the day of

conclusion of the contract

Austria, Belgium, Cyprus,

Denmark, Estonia, Greece,

Ireland, Italy, Luxemburg,

Malta, Portugal, Spain,

Sweden Slovakia, UK:

days from the day following

that on which the consumer

forwarded his order to the

supplier. This solution is

comparable

with

the

proposal.

Article 22(2) - right to reimbursement in

case of non-delivery/late delivery

When the trader has failed to deliver

goods on time, the consumer has the

right to full refund of all monies paid

within 7 days.

All

Member

States:

currently consumers have to

wait 30 days (14 days in

Slovakia) for refund in case

of non-delivery instead of 7

days as envisaged in the

proposal.

France and Germany

the

procedure for refund will be

facilitated as the existing

right to refund is subject to

further conditions.

PDF to HTML - Convert PDF files to HTML files

Article 23 - rules on passing of risk

The consumer becomes liable for loss of

or any damage to the goods only after

the goods are handed over to him (or

someone indicated by him). The

consumer is not liable for any loss or

damage during transport of goods.

Most Member States

provide

for a similar rule.

Italy:

in this Member State

the risk passes at the time of

conclusion of a contract –

i.e. consumers are liable for

any loss or damage during

transport.

France:

the risk of loss or

damage passes when the

goods are handed over to

the consumer, except in the

case of force-majeure. The

Proposal

extends

the

protection to cases of force

majeure

(e.g.

during

transport).

Spain:

the proposed rule

clarifies the situation.

Article 24(2) – Conformity with the

contract.

The list of conditions under Article 24(2)

determines the conformity of the goods

with the contract

Cyprus,

the additional

conditions

include

the

availability of spare parts,

accessories

and

specialised

technicians, safety as well as the

appearance and finish.

Estonia, Denmark, Finland and

Sweden:

"proper packaging" is

the additional condition of

conformity.

Most

Member

States

provide for an identical list

of conditions sometimes

with the use of slightly

modified wording.

PDF to HTML - Convert PDF files to HTML files

Article 26 - the order of remedies for

faulty goods.

This article establishes a certain order

of remedies for defective goods

In comparison with the existing

consumer acquis the proposal increases

the number of circumstances where the

consumer will be able to invoke any of

the remedies without following any

order (see article 26 paragraph 4)

NB The relationship between the

remedies in traditional contract law of

the Member States, such as the right to

reject in the UK and the hidden faults

regime in France, is dealt with in the

accompanying note.

Article 26 – the initial choice between

repair and replacement

This article enables the trader to make

the initial choice between repair and

replacement.

Slovenia, Greece, Lithuania and

Portugal

–in those Member

States a consumer may choose

any of the remedies (i.e. no order

of remedies applies)

Latvia

a consumer has a wider

choice

remedies

then

envisaged by the proposal

(within the first 6 months after

the purchase)

All the other Member States.

Consumers will profit from

clearer rules and slightly

more possibilities to request

reduction of price or to

request all money back (to

the best of our knowledge

no Member State has a

provision equivalent to

Article 26(4)).

All Member States:

following the

existing Directive on the sale of

consumer goods all Member

States allow the consumer to

choose between repair and

replacement. However the trader

can easily contest consumer's

choice

proportionality

grounds, which may give rise to

consumer disputes. Therefore the

proposed solution clarifies the

situation without any excessive

reduction in consumer protection.

PDF to HTML - Convert PDF files to HTML files

The decrease will be particularly

acute in

Slovenia, Greece,

Lithuania, and Latvia

since these

countries do not follow any order

of remedies.

There may be a slight decrease in

Portugal where currently the

consumer can choose any remedy

on condition his choice is

proportionate (i.e. he does not

abuse his right).

Article 26 (3) subparagraph 2: "The

consumer may only rescind the contract

if the lack of conformity is not minor

Czech

Republic,

Denmark,

Estonia,

Portugal,

UK:

consumers may request their

money back even if there is only

a very small defect (in Denmark

only if the trader has not repaired

or replaced the good within

reasonable time).

The UK and Ireland:

the current

liability period is 6 years in the

UK (with the exception of 5

years in Scotland) and Ireland.

The Netherlands, Finland:

there

is no general liability period.

Consumer's rights are assessed

taking into consideration the life

span of a product

All other Member States

Article 28(1), the 2 year legal guarantee.

The seller is liable towards the consumer

for 2 years from the moment the risk is

transferred to the consumer.

All the other Member States

PDF to HTML - Convert PDF files to HTML files

Sweden:

the current liability

period is 3 years.

Germany, Hungary (and possibly

some other Member States):

extended liability period for

some specific products (e.g.

building materials – 5 years in

Germany

and

Denmark;

Hungary:

durable goods 3 years,

Greece:

durable goods up to 5/7

years)

Article 28(2) – new guarantee for

replaced goods

A consumer, whose faulty product is

being replaced for a new one, enjoys a

new, two years guarantee for the new,

replaced product.

Article 28(3) - the shorter guarantee

period for second hand goods (1 year)

A seller of second hand goods may agree

with a consumer to shorten the standard

liability period from two to one year.

Denmark, Estonia, Finland,

France, Greece, Ireland, Latvia,

Lithuania,

Malta,

the

Netherlands and the UK:

in those

Member States traders and a

consumers cannot agree on a

shorter liability period for

defective, second-hand goods

Austria, Belgium, Czech

Republic, Cyprus, Germany,

Italy,

Hungary,

Luxembourg,

Poland,

Portugal,

Slovakia,

Slovenia,

Spain

and

Sweden:

in those Member

States,

traders

and

consumers may agree on a

shorter liability period for

defective,

second-hand

Denmark

All Member States with the

exception of Denmark.

the best of our knowledge

those Member State do not

provides for such a clear cut

rule to the benefit of the

consumer.

PDF to HTML - Convert PDF files to HTML files

goods.

Article 28 (4) – Duty to notify lack of

conformity

Remark:

The Commission does

not

consider the duty to notify the lack of

conformity as necessarily decreasing

consumer protection. On the one hand a duty

to notify brings legal certainty both

consumers and business and by prompting

the consumer to notify shortly after the

discovery of the defect may protect

consumers from possible damages. On the

other hand, the Commission acknowledges

that a duty to notify is an additional burden

for consumers

Austria, Czech Republic, France,

Germany,

Greece,

Ireland,

Latvia, Luxemburg, UK:

no duty

to notify

Belgium, Poland:

Duty to notify

within one year

Finland, The Netherlands:

within

reasonable time of at least two

months

Cyprus, Denmark, Estonia,

Hungary, Italy, Lithuania,

Malta, Portugal, Slovenia,

Slovakia, Spain, Sweden:

in the proposal

Hungary:

as soon as

possible, which includes

two months

Article 28(5) - the reversal of the burden

of proof (6 months)

Within first 6 months following a

purchase, a consumer does not have to

provide a proof, that a product was

faulty already at the time of purchase.

Article 31(3) - the ban on pre-ticked

boxes

Especially in the context of e-commerce,

traders will not be allowed to use pre-

selected (pre-ticked) options involving

additional payments.

Portugal:

in Portugal the reversal

of the burden of proof is for the

whole 2 years period (instead of

6 months as provided by the

existing community legislation

and the proposal)

All the other Member States

(except Portugal)

All Member States.

It is our

understanding that none of

the

Member

States

explicitly bans pre-ticked

boxes in their national

legislation.