Europaudvalget 2009-10
KOM (2008) 0614 Bilag 3
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NB: T
HIS IS WORK IN PROGRESS
THE DRAFT DOES NOT REPRESENT THE OFFICIAL VIEWS OF THE
C
OMMISSION AND MAY NOT BE PUBLISHED IN ITS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,
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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
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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.
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NB: T
HIS IS WORK IN PROGRESS
THE DRAFT DOES NOT REPRESENT THE OFFICIAL VIEWS OF THE
C
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
like
in
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
to
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).
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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:
in
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
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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.
-
-
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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,
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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:
in
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.
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Article 19 – exemption from the right of
withdrawal for distance sale of
newspapers, periodicals and magazines.
Estonia, Denmark and Greece:
in
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,
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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:
30
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.
In
France and Germany
the
procedure for refund will be
facilitated as the existing
right to refund is subject to
further conditions.
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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
In
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.
-
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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)
In
Latvia
a consumer has a wider
choice
of
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
on
proportionality
grounds, which may give rise to
consumer disputes. Therefore the
proposed solution clarifies the
situation without any excessive
reduction in consumer protection.
-
-
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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
-
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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.
To
the best of our knowledge
those Member State do not
provides for such a clear cut
rule to the benefit of the
consumer.
-
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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:
as
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.
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