Brussels, 24/01/2011 (Agence Europe) - On Monday 24 January, the Council of Ministers of the EU adopted a general approach by qualified majority on the draft directive on consumer rights. The Hungarian Presidency has been called on to negotiate with the European Parliament, with a view to reaching the final agreement in the first reading. The German, Spanish and Maltese delegations voted against tax. Germany unsuccessfully requested this point to be withdrawn from Monday's Council public debate.
The directive seeks to improve how the internal market operates and help develop the level of consumer protection by approximating certain aspects of the laws of the member states concerning distance and off-premises contracts. This directive aims to facilitate distance selling and consolidate business confidence with regard to transnational trade within the EU. To this end, the Council's general approach fully approximates provisions on consumer information and the right to withdraw from distance and off-premises contracts between businesses and consumers. Future rules will not prevent businesses proposing contractual agreements with consumers that go beyond protection included in the directive.
Distance contracts would cover all contracts concluded by distance communication techniques (mail-order, internet, telephone and fax, for example). Off-premises contracts would cover contracts concluded in the simultaneous physical presence of business and consumer, which are not included on the business premises and may, for example, take place at the consumer's home or workplace.
Scope. The directive would apply to distance and off-premises contracts concluded between public and private businesses and a consumer, as well as distance contracts for water, gas and electricity or heating supplies. The directive, however, will not apply to contracts concluded in areas such as immovable property, newbuild constructions, financial services, passenger transport services, certain social services, health care and gaming.
Digital content, such as computer programmes, games or music that is not burned on a tangible medium, is not considered as a good within the meaning of the directive. On the contrary, tangible digital items such as CDs and DVDs, memory cards, etc, are to be considered within the scope of the directive. The downloading of digital content from the internet, considered as a services contract concluded by electronic means and performed immediately, will also fall within the scope of the directive, but without a right of withdrawal. The new directive will replace Directive 85/577/EEC on contracts negotiated away from the business premises and Directive 97/7/EC on distance contracts, which are currently in force. Moreover, it will complete the information requirements provided for in the “Services Directive” and the “E-commerce Directive”.
Information requirements. With respect to distance contracts to be concluded by electronic means, which would place the consumer under an obligation to make a payment, the consumer will be bound by the contract only upon its explicit confirmation.
Right of withdrawal. Subject to exemptions and certain obligations, the consumer will have the right to withdraw from the distance or off-premises contract, within a period of 14 days, without giving any reason and without any costs. To exercise this right, the consumer has to inform the trader of his decision to withdraw from the contract, for instance by written letter, fax or e-mail, or by means of a standard form, before the withdrawal period has expired. In this case, the trader will reimburse payments received from the consumer no later than 14 days from the day on which he receives the communication of withdrawal. For sale of goods contracts, the trader may withhold the reimbursement until he receives the goods back. Member states will be able to introduce or maintain in their national legislation an interdiction of payment during the withdrawal period.
Entry into force. The directive provisions will be applicable to contracts concluded after 30 months of the entry into force of the directive. The Commission presented the initial proposal in 2008. The Council held orientation debates in December 2009 and May 2010. The Parliament is expected to give its opinion in the first half of 2011. (L.C./transl.fl)