Last December, guidelines regarding the correct interpretation of the Consumer Rights Directive 2011/83/EU were published in the Official Journal of the European Union to facilitate its application. (1)
The guidelines draw on the case law of the Court of Justice of the European Union and aim to ensure greater awareness of the rights involved among all parties involved and to harmonize certain aspects of member states’ legislative provisions on contracts concluded between consumers and professionals.
It also takes into account the changes introduced by Directive (EU) 2019/2161, which will come into force on May 28, 2022. (2)
Directive 2011/83/EU in light of the EC guidelines.
Directive 2011/83/EU, replacing the Distance Selling Directive (97/7/EC) and the Doorstep Selling Directive (85/577/EEC), strengthens consumer protection, understood as “any natural person who, in the contracts covered by this Directive, acts for purposes outside the scope of his or her trade, industry, craft or profession” (art. 2).
Scope: applies to a wide range of contracts concluded between professionals and consumers, particularly sales contracts, service contracts, contracts for online digital content, and contracts for the supply of water, gas, electricity and district heating. Moreover, it covers both contracts concluded in stores and those concluded off-premises (e.g., at the consumer’s home) or at a distance (e.g., online).
Obligations for professionals
Professionals are obliged to provide the consumer, in a clear and understandable manner a very detailed list of information (e.g., main characteristics of goods/services, professional identification, prices and taxes, payment method, delivery and performance, date of performance, possibility and method of withdrawal, legal guarantee of conformity) (Art. 6.1).
Failure to comply with disclosure requirements will result in a penalty on the professional as a contractual liability, and the burden of proof regarding compliance itself will be on the professional.
Form requirements for distance contracts
Pre-contractual information should be made available to the consumer in an appropriate manner, using simple and understandable language. (Art. 8.1)
If the placing of the order involves pressing a button to complete the purchase(point & click), such a button must indicate the words “order with obligation to pay” or unambiguous equivalent wording. It follows, that non-compliance releases the consumer from the contract (Art. 8.2).
There should be clear and legible indications on online sales sites, in the case of delivery restrictions and with regard to permitted methods of payment (Art. 8.3).
The sending of the confirmation of the contract shall be done using a durable medium, which ensures that it can be accessed in the future and allows for the identical reproduction of the stored information within a reasonable period of time and at the latest at the time of delivery of the goods or performance of the service (Art. 8.7).
Right of withdrawal
Directive 2011/83/EU includes a comprehensive set of withdrawal provisions, under which, among other things, consumers will be able to withdraw from distance and off-premises contracts within 14 days of delivery of the goods or conclusion of the service contract, with certain exceptions, without explanation or cost. In case the consumer is not made aware of his or her rights, the withdrawal period will be extended to 12 months (Arts. 9-16).
Sanctions
Penalties shall be determined by the member states and shall be effective, proportionate and dissuasive (Art. 24).
The Directive (EU) 2019/2161
Directive (EU) 2019/2161 (so-called Omnibus Directive) aims to improve and modernize the Union’s consumer protection rules on:
– unfair clauses;
– Indication of prices to consumers;
– unfair trade practices;
– Consumer protection in line with digital development;
– Strengthening tools to improve consumer rights.
Highlights
Increased transparency requirements for online operators are introduced. In detail,
– sites that use bid comparison tools will have to inform consumers about the ranking criteria;
– operators will be required to inform consumers whether they have procedures in place to ensure that reviews come from consumers who have actually purchased or used the products in question, and how such reviews are conducted in order to avoid false reviews;
– operators adopting the ‘personalized pricing’ system will have to inform buyers (use of ad hoc algorithms);
– consumers will have to be informed if a product is purchased from a private party and about the fact that, in that case, EU consumer protection rules will not apply.
Consumer protection with respect to ‘free’ digital services (e.g., cloud services or email accounts) with application of Directive 2011/83/EU (pre-contractual information, right of withdrawal despite no monetary consideration).
Compensation to victims of unfair trade practices. Effective, proportionate and dissuasive penalties are provided to punish professionals who break national rules transposing the directive by indicating the criteria (at least 4 percent of the seller or supplier’s annual turnover, or 2 million euros).
Unfair trade practices
Directive 2019/2161 addresses new market developments, particularly in the digital sector, and amends Directive 2005/29/EC, which defines unfair business-to-consumer commercial practices prohibited in the European Union.
A commercial practice is unfair under EU law when it is contrary to the requirements of professional diligence and prevents the consumer from making a fully informed and free economic decision and is therefore prohibited throughout the EU.
Business practices that are contrary to the requirements of professional diligence and are likely to materially distort the economic behavior of the average consumer are considered unfair. Particularly unfair trade practices qualify as those that cause the average consumer to make a business decision that he or she would not otherwise have made, such as deceptive trade practices (by act or omission) and aggressive trade practices.
Where consumers are harmed by unfair commercial practices, the directive ensures that they can seek compensation or a price reduction.
The regulatory framework provided by the European Union to increase the level of consumer protection appears to be broadly articulated and explained. We can only hope that the rules will go into effect in a reasonable time and be properly enforced.
Elena Bosani
Notes
(1) Directive 2011/83/EU of the European Parliament and of the Council of October 25, 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council. Eur-Lex https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:32011L0083&from=FI
(2) Directive (EU) 2019/2161 of the European Parliament and of the Council of November 27, 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council for better enforcement and modernization of Union rules on consumer protection. Eur-Lex https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:32019L2161&from=EL
Lawyer in Milan and Frankfurt am Main. An expert in family, juvenile and criminal law, she is now enrolled in a university master's programme in food law
