Europaudvalget 2009-10
KOM (2008) 0614 Bilag 3
Offentligt
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NB: This is work in progress – the draft does not represent the official views of the
Commission and may not be published in its present form
B
RUSSELS
, 28 S
EPTEMBER
2009
T
HE
P
ROPOSAL FOR A
D
IRECTIVE ON
C
ONSUMER
R
IGHTS
:
SCOPE
,
RELATIONSHIP WITH NATIONAL GENERAL CONTRACT LAW AND RELATIONSHIP
WITH OTHER
C
OMMUNITY LEGISLATION
On 8 October the Commission proposed a Directive of the European Parliament and of the
Council on Consumer Rights. The purpose of this paper is to address some major
outstanding issues raised in the legislative process. The note is based on the original text of
the Commission's proposal.
1.
Relationship between the proposal, the Services and E-Commerce Directives and
other Community legislation
Like the proposal,
the Services and E-Commerce Directives
have a very broad scope of
application covering respectively all services contracts and all transactions concluded on-
line. The proposal will not affect the information requirements set out in Article 22 of the
Services Directive and Article 6 of the E-Commerce Directive
1
. However, it will prevent
Member States from imposing additional pre-contractual information requirements in
consumer contracts over and above those set out in these provisions. In other words the
proposal will have the effect of completing the pre-contractual information requirements
set out in the Service and E-Commerce Directives, by requiring Member States, for
consumer contracts, to refrain from imposing information requirements different from the
mandatory requirements laid down in these two directives and in the proposal. This point
may require further clarification in the proposal.
The proposal complements the
Unfair Commercial Practices Directive (UCP).
UCP
regulates commercial practices and protects the collective interest of consumers from
unfair commercial practices. While UCP regulates in Article 7(4) the information to be
provided by traders in an invitation to purchase, it does not provide consumers with any
individual rights that can be enforced against traders. Article 3(2) makes clear that the
Directive is without prejudice to contract law and, in particular, to the rules on the validity,
formation or effect of a contract. The proposal, on the other hand, grants contractual rights
to consumers, including the right to receive appropriate pre-contractual information. The
proposal provides in Article 5(3) that this information shall form an integral part of the
contract and regulates certain contractual consequences of failure to provide information in
Article 6(2).
1
It should be noted that other information obligations provided by the E-Commerce Directive (notably in
Article 5) do not constitute pre-contractual requirements and do not become an integral part of a
contract. In particular Article 5 regulates information that service provider have to render permanently
accessible (e.g. the name of the supervisory authority). This type of information is outside the scope of
the proposal.
Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
Office: F101 06/52. Telephone: direct line (32-2) 2953351. Fax: (32-2) 2967669.
E-mail: [email protected]
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Recital 10 of the proposal makes clear that its provisions should be without prejudice to
Regulation (EC) No 593/2008 of the European Parliament and the Council applicable to
contractual obligations (Rome
I).
The issue of the applicable law to a contract must
therefore be judged solely under the Rome I Regulation. The proposal contains no
international private law rules.
The proposal should be considered lex generalis compared to
sector specific Community
legislation
(EU laws applying only to contracts for specific categories of goods or services
such as the Cross-border Healthcare Directive or the legislation on food labelling). In case
of conflict the specific information requirements in those vertical instruments will take
precedence over those in the proposal. The minimum harmonisation in those sectoral
instruments will be unaffected by the proposal.
2.
Scope
2
Dual usage contracts (i.e. contracts concluded both for professional and private purposes)
may come under the scope of the proposal, when the private purpose is clearly
predominant. It could be clarified in the proposal that the predominant purpose will have to
be assessed by national courts on a case by case basis, taking into account the definition of
"consumer" in Article 2(1).
Member States may decide to extend the application of the rules of the proposal to legal or
natural persons which are not "consumer" in the meaning of Article 2(1). For example,
Member States may decide that NGOs or small businessmen not acting as "consumers" can
benefit from the consumer rights guaranteed in the proposal. However, these NGOs or
businessmen should not be referred to as "consumers" as that would be incompatible with
the definition in the proposal.
The Commission does not aim at regulating contracts for sale of or transfer of rights in
immovable property.
The proposal covers other contracts related to immovable
property – e.g. rental, construction contracts or home improvements contracts.
The proposal does not regulate the
liability of producers for faulty products
(i.e.
products which do not conform to the contract of sale). The freedom of the Member States
to regulate this matter will thus be unaffected by the Directive.
Similarly the legal guarantee under Article 24
3
of the proposal applies only to contracts for
the sale of goods. It does not apply to service contracts; Member States are thus free to
regulate the legal guarantee for service contracts.
Contracts for the
supply of water, gas and electricity
fall within the definition of service
contracts and, therefore, are covered by the rules in the proposal on service contracts
(i.e. chapters I- III, V and VI).
2
The present section provides guidance to the application of the proposal for certain types of contracts.
The explanation provided will indicate whether chapters II, III, IV or V are applicable. If any of these
chapters do indeed apply, then the relevant provisions of chapter I on subject matter, definitions and
scope and chapter VI apply as well.
Conformity of the good with the contract.
2
3
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On
digital services
(i.e. software, downloaded music, etc), the provisions on information
requirements and unfair contract terms (chapters II and V) apply in their entirety. As
regards the rules on distance selling, the proposal retains the derogation from the right of
withdrawal in the existing Distance Selling Directive for services where performance has
begun. It follows that the consumer is no longer able to withdraw once he has started
downloading the digital service (i.e. by starting a download, performance begins and hence
the consumer gives express consent under Article 19(1)(a). Furthermore, the rules on sales
in chapter IV apply only to "tangible movable items". Digital services are therefore not
covered by these rules. The Commission will study further the issue of digital services in
order to determine whether consumers are suffering detriment as a result of the lack of
regulation at EU level of the liability of traders for faulty digital services.
Transport services
are covered by the proposal, with certain exceptions. In general, the
information requirements in chapter II and the rules on unfair contract terms in chapter V
apply. The rules in chapter III apply only to transport services sold off-premises; the rules
on information and right of withdrawal do therefore not apply to transport services sold at a
distance
4
. The scope is even more reduced in relation to timeshare and package travel
contracts – only chapter V on unfair contract terms applies to these contracts. As regards
more specifically taxi contracts, it should be noted that the definition of business premises
in Article 2(9) includes "movable retail premises". Taxi contracts are therefore considered
to be concluded on-premises and are thus not subject to a right of withdrawal. Similarly,
consumers will not be entitled to withdraw from the contract when they order a taxicab via
phone since the right of withdrawal does not apply for transport contracts.
Social services
are not excluded from the scope of the proposal. To the extent that such
services are provided on the basis of a contract between the provider and the recipient, the
provisions in chapters II, III and V apply. National information requirements would have to
comply with the proposal to the extent that they have the purpose to protect the economic
interests of consumers – i.e. Member States will not be allowed to introduce further, more
prescriptive information obligations than those enumerated in chapter II of the proposal.
For example in the case of an old people's or residential home a Member State will not be
able to oblige the home management in its national legislation to comply with more
detailed information obligations in the contracts with future residents(e.g. a number of
meals or social and recreational activities).
Chapter V on unfair contract terms applies to
financial services
in general. Chapter III
applies only to some specific financial services contracts concluded off-premises
(insurance contracts, financial services whose price depends on fluctuations in the financial
market and consumer credit covered by Directive 2008/48/EC are not covered by Chapter
III). In practice the most important financial services contracts that will be covered are
mortgage credit contracts and consumer credit contracts for less than EUR 200 or more
than EUR 75000 (i.e. consumer credit contracts falling outside the scope of Directive
2008/48/EC). For these financial services contracts, the information requirements in Article
5 and 7 will apply by virtue of the reference in Article 9.
4
The scope of Chapter III in relation to transport services is defined by Article 8 in conjunction with
Article 20(3).
3
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Internet auctions
where traders sell goods or services to consumers are covered by the
proposal. All chapters of the proposal apply to contracts concluded at an internet auction
(except of course chapter IV for services). The definition of auction in Article 2(15) covers
eBay-style auctions, i.e. online auctions where a competitive bidding procedure is carried
out on a website, without the intervention of an auctioneer. The right of withdrawal does
not apply to contracts concluded at such auctions (Article 19.1 (h)). The derogation in
Article 21(4) allowing Member States to not apply chapter IV to the sale of second-hand
goods at public auctions applies only to auctions where the consumer may attend in person.
Mixed-purpose contracts,
i.e. contracts having as their object both goods and services are
treated as sales contracts under the proposal by virtue of the definition in Article 2(3). This
means that all chapters of the proposal apply to such contracts. Chapter IV however applies
only to the goods supplied under the mixed-purpose contract and not to the service element
(Article 21(1)). In the case of a contract for the purchase of a mobile phone combined with
a subscription to mobile phone services, it is clear that the rules on delivery and remedies
for lack of conformity apply only to the mobile phone itself and not to the mobile phone
services to be supplied. These contracts, even when concluded at a distance, are regarded
as sales contracts (see Article 2(3). Therefore when a mixed-purpose contract is concluded
at a distance, the consumer will be protected by the rules on distance contracts for the
whole contract (e.g. he will be able to withdraw from the mixed-purpose contract).
However, the consumer should be liable for the service consumed during the withdrawal
period although this may need to be clarified in the proposal.
The Commission does not intend to harmonise language requirements applicable to
consumer contracts, which are outside the scope of the proposal.
3.
Impact on and relation with national general contract law
It is assumed that the proposal will not affect to a significant extent the traditional
general
contract law
in the Member States. The proposal fully harmonises only a limited number
of issues with a strong internal market impact
5
. On these issues the Member States will not
be able to go below or above the proposed level of protection. They will, nevertheless, have
to adapt these rules to fit their national law-for example, the legal meaning of unfair
contract terms not being "binding on the consumer" (Article 37 of the proposal).
Furthermore the rules in the proposal will have to be complemented by general contract
law.
For example, the consequences of the consumer being late in sending the goods back after
withdrawal (Article 17) will have to be determined under national contract law. The
Commission has refrained to the maximum extent possible from interfering with the
general contract law of the Member States.
This means that:
a) Issues such as (in)capacity to contract, rules on the conclusion of the contract (offer
and acceptance), validity of contracts (with the exception of article 10(2)), voidness
and voidability of contracts are unaffected by the proposal. They are outside the
scope of the proposal and will continue to be governed by national law.
5
See in particular recital 4 and 8 of the Proposal.
4
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b) In general, the proposal does not affect the general national rules on the conclusion
of the contract, including the corresponding
formal requirements
(e.g. the
requirement of a notary deed for transfer of rights in immovable property or of a
contract under seal in the UK)
6
. The only exception is Article 10(2) which requires
mandatory written form for the valid conclusion of off-premises contracts. This
provision prevents the Member States from requiring additional formal,
presentational requirements for off-premises contracts
7
.
By contrast, the proposal prevents the Member States from prescribing additional
formal, presentational requirements on the way the pre-contractual information has
to be communicated to the consumer both for off-premises and distance contracts
(e.g. type and size of characters). This includes the "model withdrawal form", which
the Member States will not be able to change.
The proposal does not regulate the contract law consequences of the
omission of
information,
8
with the exception of Articles 6(1)
9
, 7(2)
10
and article 13(b)
11
. In these three
cases the Member States will be precluded from adding further contract law
consequences/sanctions.
12
In all the other cases it will be for the Member States to
determine the legal consequences of the omission (see Article 6(2)).
Articles 15 – 18 regulate the rights and obligations of the parties in case of
withdrawal.
The Member States will not be allowed to add to these rights and obligations. They will,
nevertheless, have to adapt these rules to fit their national law. For example, it will be for
the Member States to regulate the contract law consequences when one of the parties to the
contract fails to fulfil its obligations as set out in Articles 16 – 18 of the proposal.
Much concern has been expressed about the relationship between the
consumer sales
remedies
referred to in Article 26 and the traditional contract law remedies of the Member
States, such as the right to reject in the UK and IE, the guarantee for hidden faults in France
or the
azione redibitoria
in Italy.
It was never the intention that the full harmonisation of the specific consumer remedies in
the proposal would preclude Member States from retaining their traditional contract law
remedies. Full harmonisation of the existing consumer sales remedies should not exhaust
the remedies for faulty goods available to the consumers on condition that the legal
requirements for the exercise of these general remedies are different from those applying to
the consumer sales remedies. In most Member States the consumer sales remedies coexist
with the traditional contract law remedies, and the consumer may choose to use either
regime. For example, in the UK and IE a consumer may decide to resort to the consumer
sales remedies or to the right to reject. The requirements for the exercise of right to reject
6
7
The title of Article 11 may have to be amended to better reflect its actual content.
Presentational requirements relate to the prescribed layout and formatting of the pre-contractual
information and contracts. Those include an obligation provide information using a particular size of font
or the use of text boxes and similar.
However, the provided information must become an integral part of the contract.
Information about the price inclusive of all charges.
Rules on intermediaries.
Information on the right to withdrawal.
However, Member States will be allowed to provide for non-contract law consequences see Article 42.
5
8
9
10
11
12
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are different from those of the consumer sale remedies. The consumer does not have two
years to reject a faulty product but has to do it within a reasonable time (to examine the
good). Moreover, the consumer does not benefit from a reversal of the burden of proof
when he exercises the right to reject. Similarly, in France, the consumer should still be able
to refer to the guarantee of hidden faults. By harmonising only the consumer sales remedies
the impact of full harmonisation on this topic should be rather limited and thus UK and FR
consumers could retain their specific rights. Member States should however be precluded
from circumventing the full harmonisation character of the proposal by amending the
hierarchy of remedies provided in Article 26
13
which is specific to consumer contracts.
A number of Member States have expressed doubts about the practicality of such a dual
regime and are willing to go further and harmonise consumer remedies for faulty goods
exhaustively by including further remedies in the proposal, such as a right to reject.
However, should such an exhaustive harmonisation not be achieved, a provision in the
proposal could be inserted unequivocally confirming that full harmonisation of the specific
consumer remedies in the proposal does not preclude Member States from retaining their
traditional contract law remedies .
It must also be borne in mind that the proposal will not affect the consumer's
right,
under
national law,
to enforce performance
of the contract or
seek damages
since these issues
are not covered. The proposal does not affect the consumer's freedom to seek damages or
enforce performance of the contract straight away (i.e. he may decide not to use the
consumer sales remedies). Article 27(2) means that the Member States are obliged to
provide consumers with a right to
damages for losses not remedied under the proposal.
However, the conditions of the trader's liability (e.g. strict liability or culpability), and the
type and amount of the damage will have to be determined under national law.
Article 24
14
applies only to faulty goods. It does not apply when the consumer buys a good
which is subject to a
third party right
that would adversely affect the buyer. For example,
Article 24 would not apply if a consumer purchases a good from a retailer who has not paid
the price in full to the wholesaler who has made it subject to retention of title until the
whole price has been paid. This situation will have to be addressed under the general
contract laws of the Member States.
4.
Unfair Contract Terms
On the provisions in the proposal on
unfair contract terms,
it should be noted that the
general unfairness clause
in the text is identical to the unfairness general clause currently
contained in Article 3 of Directive 93/13/EEC on unfair contract terms. This means that the
proposal will in principle respect existing national case law on unfair terms in consumer
contracts and will not restrict the competence of national authorities to investigate and
assess contract terms The general unfairness clause has autonomous regulatory function
(i.e. its scope of application is broader than that of the lists).
Member States will, however, have to amend their existing lists of unfair contract terms,
enshrined in their laws, to bring them in line with the grey and black lists attached to the
proposal. Member States will thus not be able to retain in their legislation terms on their
national lists which are not included in Annex II and III to the proposal. In addition,
13
14
It includes the prohibition to give consumers the right to choose freely among consumer sales remedies.
Conformity with the contract.
6
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Member States will not be able to retain decisions of national authorities or courts of last
resort, which are universally applicable (i.e. with a binding effect similar to legislation for
all traders and consumers) as this would have the same effect as the black and grey lists
established by the proposal. They will also have to ensure that the wording of their general
clauses is brought in line with that of the proposal.
The screening of Member States' national lists may however lead to the inclusion of
additional terms in the course of the negotiations.
Full harmonisation will not change the different
roles played respectively by the ECJ
and national courts
is assessing unfair contract terms. The Court will continue to interpret
the general criteria used by the Community legislature in order to define the concept of
unfair terms. However, it should not rule on the application of these general criteria to a
particular term, which must be considered in the light of the particular circumstances of the
case in question.
Under Article 30(1) of the proposal, the fully harmonised rules on unfair contract terms
apply to contract terms which have not been
individually negotiated
by the consumer. The
proposal does not restrict the freedom of Member States to regulate individually negotiated
unfair contract terms.
7