refund policy
08.11.2022
Official Journal of the European Union
L304/64
DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
from 25. October 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
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION —
based on the Treaty on the Functioning of the European Union, in particular Article 114,
on the proposal of the European Commission,
according to the opinion of the European Economic and Social Committee (1),
according to the opinion of the Committee of the Regions (2),
according to the ordinary legislative procedure (3),
Considering the following reasons:
1) In Council Directive 85/577/EEC of 20. December 1985 concerning consumer protection in the case of contracts concluded away from business premises (4) and Directive 97/7/EC of the European Parliament and of the Council of 20. May 1997 on consumer protection when concluding distance selling contracts (5) enshrines a number of contractual rights for consumers.
(2) These Guidelines have been reviewed in the light of the experience gained with a view to whether the existing legislation can be simplified and updated by eliminating inconsistencies and loopholes. This review has shown that it makes sense to replace the two directives mentioned by a single directive. Therefore, this Directive should lay down general rules for the common aspects of distance and off-premises contracts; This should abandon the minimum harmonization approach underlying the older directives, while still allowing Member States to maintain or introduce national legislation in relation to certain aspects.
3) Articles 169(1) and 169(2)(a) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union shall contribute to ensuring a high level of consumer protection through measures adopted pursuant to Article 114 performs.
4) According to Article 26(2) TFEU, the internal market includes an area without internal borders in which the free movement of goods and services and freedom of establishment are guaranteed. The harmonization of certain aspects of distance and off-premises consumer contracts is essential to promote a genuine internal market for consumers, ensuring the best possible balance between a high level of consumer protection and the competitiveness of businesses, while respecting the principle of subsidiarity.
5) The cross-border potential of mail order, which should be one of the main tangible outcomes of the internal market, is not being fully exploited. Compared to the significant growth recorded in domestic mail order in recent years, there has been little growth in cross-border mail order. This discrepancy is particularly evident in online trading, where there is great potential for further growth. The cross-border potential of off-premises contracts (direct selling) is limited by a number of factors, including different Member States' consumer protection legislation to which businesses must comply. Compared to the growth of domestic direct sales in recent years, especially in the service sector (e.g. b in the utilities industry), the number of consumers using such channels to make cross-border purchases has not increased. Given the increased business opportunities available in many Member States, small and medium-sized enterprises (including individual entrepreneurs) or representatives of companies active in direct selling should be more willing to seek new business opportunities in other Member States, particularly in cross-border regions to keep an eye out. Therefore, full harmonization of consumer information and the right of withdrawal in distance or off-premises contracts should contribute to a high level of consumer protection and the better functioning of the internal market for business-to-consumer transactions.
6) Certain differences create significant obstacles to the internal market, affecting traders and consumers. Because of these differences, entrepreneurs who want to offer their goods or services across borders face higher compliance costs. The undue legal fragmentation also undermines consumer confidence in the internal market.
7) The full harmonization of some key aspects of the relevant regulations should significantly increase legal certainty for consumers and entrepreneurs. Both consumers and traders should be able to rely on a uniform legal framework, based on clearly defined legal concepts, that regulates certain aspects of contracts between businesses and consumers across the Union. Such harmonization should remove the obstacles arising from legal fragmentation and complete the internal market in this area. The obstacles in question can only be removed through the introduction of uniform legislation at Union level. In addition, consumers should benefit from a high, uniform level of consumer protection across the Union.
8) The aspects of the regulations to be harmonized should only concern contracts between traders and consumers. Therefore, this Directive should be without prejudice to national law relating to employment contracts and contracts in the field of inheritance, family and company law.
9) This Policy contains provisions on information to be provided in distance contracts, off-premises contracts and contracts other than distance and off-premises contracts. This Directive also regulates the right of withdrawal for distance or off-premises contracts and harmonizes certain rules relating to the performance and some other aspects of contracts between businesses and consumers.
10) This Directive should replace Regulation (EC) No.593/2008 of the European Parliament and of the Council of 17. June 2008 on the law applicable to contractual obligations (Rome I) (6) remain unaffected.
11) This Directive should be without prejudice to Union rules on specific areas such as human medicines, medical devices, data protection in electronic communications, patients' rights in cross-border healthcare, food labeling and the internal market in electricity and natural gas.
12) The information requirements provided for in this Directive should comply with the information requirements provided for in Directive 2006/123/EC of the European Parliament and of the Council of 12. December 2006 on services in the internal market (7) and under Directive 2000/31/EC of the European Parliament and of the Council of 8. June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (“Electronic Commerce Directive”) (8). Member States should continue to have the possibility to impose additional information requirements on service providers established on their territory.
13) Member States should retain the power to apply this Directive to areas outside its scope, in accordance with Union law. Member States may therefore maintain or introduce national legislation equivalent to the provisions or some of the provisions of this Directive for contracts which do not fall within the scope of this Directive. For example, Member States may decide to extend the application of this Directive to legal or natural persons who are not 'consumers' within the meaning of this Directive, such as non-governmental organisations, start-ups or small and medium-sized enterprises. Likewise, Member States may apply the provisions of this Directive to contracts which are not 'distance contracts' within the meaning of this Directive, for example because they are not part of a distribution or distribution agreement organized for distance selling. Service system to be completed. In addition, Member States may also maintain or introduce national legislation on matters not specifically addressed in this Directive, such as additional rules on sales contracts, including with regard to the supply of goods or requirements relating to the provision of information during the term of a contract .
14) This Directive should be without prejudice to domestic contract law to the extent that aspects of contract law are not governed by this Directive. Therefore, this Directive should have no effect on national legislation concerning, for example, the conclusion or validity of contracts (for example in the event of a lack of agreement). Likewise, this Directive should be without prejudice to national law relating to general contractual remedies, rules of general commercial law (such as rules on excessive or extortionate pricing) and rules on immoral transactions.
15) This Directive should not harmonize the language requirements for consumer contracts. Member States may therefore maintain or introduce language requirements relating to contractual information and contractual clauses in their national law.
16) This Directive should comply with national legislation on legal representation, such as: b The provisions regarding the person acting in the name of the entrepreneur or on his behalf (for example a commercial agent or a trustee) remain unaffected. Member States should remain responsible in this area. This Directive should apply to all entrepreneurs in the public and private sectors.
17) The definition of consumer should include natural persons acting outside their trade, business, craft or profession. However, if the contract is concluded partly for commercial purposes and partly for non-commercial purposes (dual purpose contracts) and the commercial purpose is not predominant in the overall context of the contract, that person should also be considered a consumer.
18) This Directive does not affect the right of Member States to determine, in accordance with Union law, which services they consider to be of general economic interest, how those services should be organized and financed in compliance with State aid rules and what specific obligations they should be subject.
19) “Digital Content” means data produced and provided in digital form, such as computer programs, applications (apps), games, music, videos or text, whether accessed through downloading or real-time downloading (streaming), from a physical data carrier or in another way. Contracts for the supply of digital content should fall within the scope of this Directive. If digital content is provided on a physical medium such as a CD or DVD, it should be considered as goods within the meaning of this Directive. Comparable to contracts for the supply of water, gas or electricity, if they are not offered for sale in a limited volume or quantity, or for the supply of district heating, contracts for digital content should not be provided on a physical medium shall not be considered as sales contracts or service contracts for the purposes of this Policy. For such contracts, the consumer should have a right of withdrawal, unless he has agreed to the start of performance of the contract during the withdrawal period and has acknowledged that he will lose his right of withdrawal as a result. In addition to the general information obligations, the entrepreneur should inform the consumer about the functionality and - where essential - the interoperability of digital content. The concept of functionality should refer to how digital content can be used, for example to track consumer behavior; it should also focus on the presence or The absence of technical restrictions such as protection through digital rights management or regional coding. The term substantial interoperability describes the information regarding the standard environment of hardware and software with which the digital content is compatible, such as the operating system, the required version and certain characteristics of the hardware. The Commission should examine the need for further harmonization of rules for digital content and, if appropriate, put forward a legislative proposal to that effect.
20) The definition of distance contracts should cover all cases in which a contract is concluded between a trader and a consumer within the framework of a sales or service provision system organized for distance sales, up to and including the date of conclusion of the contract, exclusively one or multiple means of long-distance communication are/are used (e.g.b Order by post, internet, telephone or fax). This definition should also cover situations where the consumer visits the premises solely for the purpose of obtaining information about the goods or services and then negotiates and concludes the contract remotely. In contrast, a contract negotiated at an entrepreneur's premises and ultimately concluded via a means of distance communication should not be considered a distance contract. Likewise, a contract that is initiated via a means of distance communication and ultimately concluded at the entrepreneur's business premises should not be considered a distance contract. Likewise, the concept of a distance contract should not include reservations made by a consumer via a means of distance communication for the service of a professional, such as in the case of a telephone call from a consumer to arrange an appointment with a hairdresser. The concept of a sales or distribution organization organized for distance selling Service delivery system should cover distance selling or service systems offered by a third party used by traders, such as an online platform. However, the term should not cover cases where websites only provide information about the entrepreneur, his goods and/or services and his contact details.
21) A contract concluded off-premises should be defined as a contract that is concluded with the simultaneous physical presence of the entrepreneur and the consumer in a place that is not part of the entrepreneur's business premises, for example in the home or at the consumer's workplace. Outside business premises, the consumer may be under psychological pressure or be exposed to an element of surprise, regardless of whether the consumer caused the trader's visit or not. The definition of off-premises contracts should also include situations where the consumer is addressed personally and individually outside of business premises, but the contract is concluded immediately afterwards at the trader's business premises or via means of distance communication. The definition of off-premises contracts should not cover situations where the trader first comes to the consumer's home to simply take measurements or make an estimate without any obligation on the part of the consumer, and the contract is then only concluded at a later date The entrepreneur's business premises or by means of distance communication is concluded on the basis of the entrepreneur's estimate. In these cases, it cannot be assumed that the contract was concluded immediately after the entrepreneur addressed the consumer if the consumer had time to think about the entrepreneur's estimate before concluding the contract. Purchases made during an outing organized by the trader, during which the purchased products are promoted and offered for sale, should be considered as off-premises contracts.
22) Business premises should include all types of premises (such as shops, stalls or trucks) where the entrepreneur constantly or habitually carries out his business. Market and exhibition stands should be treated as business premises if they meet this condition. Sales premises where the entrepreneur carries out his activity seasonally, for example during the tourist season at a ski resort or seaside resort, should be considered business premises if the entrepreneur usually carries out his activity on these premises. Places accessible to the public such as streets, shopping centers, beaches, sports facilities and public transport, which the entrepreneur exceptionally uses for his business activities, as well as private homes or workplaces should not be considered business premises. The business premises of a person acting in the name or on behalf of the trader in accordance with this Directive should be considered business premises for the purposes of this Directive.
23) Durable storage media should allow the consumer to store information for as long as necessary to protect his interests in the relationship with the entrepreneur. These permanent data carriers should include paper, USB sticks, CD-ROMs, DVDs, memory cards or computer hard drives as well as emails.
24) At a public auction, entrepreneurs and consumers are present in person or are given the opportunity to be present in person. The goods or services are publicly offered for sale to the consumer by the trader through a bidding process permitted by law in some Member States. The person who wins the contract is obliged to purchase the goods or services. The use of online platforms available to consumers and traders for auction purposes should not be considered a public auction within the meaning of this Directive.
25) Contracts related to district heating should fall within the scope of this Directive, similarly to contracts for the supply of water, gas or electricity. District heating is heat generated in a central system, including in the form of steam or hot water, which is supplied to a large number of heat consumers for heating purposes via a pipeline and distribution network.
26) Contracts for the transfer of real estate or rights to real estate or the creation or acquisition of such real estate or rights, contracts for the construction of new buildings or significant renovation work on existing buildings as well as for the rental of living space are already the subject matter a number of specific national laws. These contracts include, for example, the sale of properties that are yet to be developed and the rental purchase. The provisions contained in this Directive are not applicable to these contracts, which should therefore be excluded from the scope of this Directive. Significant renovation work is one that is comparable to the construction of a new building, for example construction work in which only the facade of an old building is retained. Service contracts, particularly in connection with the construction of extensions to buildings (e.g. b the extension of a garage or winter garden) and in relation to the repair and renovation of buildings which do not constitute significant alterations, as well as contracts for real estate agency services and for the rental of premises for non-residential purposes should be covered by this Directive.
27) Transportation services include the transportation of passengers and the transportation of goods. The transport of passengers should be excluded from the scope of this Directive because it is already regulated under other Union legislation or, as regards public transport and taxis, at national level. However, the rules set out in this Directive to protect consumers against excessive charges for the use of certain means of payment or against hidden costs should also apply to passenger transport contracts. As regards the transport of goods and the rental of motor vehicles, insofar as these constitute services, consumers should be protected by this Directive, with the exception of the right of withdrawal.
28) In order to avoid administrative burdens for traders, Member States may decide not to apply this Directive to cases where goods or services of low value are sold off-premises. The threshold amount should be set so low that only transactions of minor importance are excluded. Member States should be allowed to set this threshold in their national law; however, it may not exceed EUR 50. If two or more contracts, which are related in terms of their subject matter, are concluded by the consumer at the same time, their total cost should determine this threshold.
29) Social services have fundamentally different characteristics, which are reflected in sector-specific legislation, partly at Union level and partly at national level. Social services include, on the one hand, services for particularly disadvantaged or low-income people as well as services for people and families who need help with routine activities and everyday activities, and, on the other hand, services for all people who need help and support in a special phase of their life , need protection or encouragement. Social services include, among others, services for children and young people, services to support families, single parents and the elderly, and services for migrants. Social services include both short-term and long-term care services, which are provided, for example, by home care services, as part of assisted living arrangements and in residential homes or facilities (“nursing homes”). Social services include not only state social services provided at the national, regional or local level by state-commissioned service providers or state-recognized aid organizations, but also social services provided by private providers. The provisions of this Directive do not apply to social services; these should therefore be excluded from the scope of this Directive.
30) Special regulations are required for health care because of its technical complexity, its importance as a service of general interest and its extensive public funding. Health care is covered by Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the exercise of patients' rights in cross-border healthcare (9) defined as “health services provided by health professionals to patients in order to assess, maintain or maintain their health status including the prescription, dispensing and provision of medicines and medical devices”. A health professional is defined in this Directive as a doctor, a general care nurse, a dentist, a midwife or a pharmacist within the meaning of Directive 2005/36/EC of the European Parliament and of the Council of 7. September 2005 on the recognition of professional qualifications (10) or any other professional carrying out activities in the health sector that fall within a regulated profession within the meaning of Article 3(1)(a) of Directive 2005/ 36/EC or a person who is considered a health professional under the legislation of the Member State of treatment. The provisions of this policy are not applicable to healthcare; it should therefore be excluded from the scope of this Directive.
31) Gambling should be excluded from the scope of this policy. Games of chance are games that require a monetary stake, including lotteries, casino games of chance and betting. Member States should be able to introduce other, including stricter, consumer protection measures in relation to these activities.
32) Existing Union law on, inter alia, consumer financial services, package holidays and timeshare contracts contains numerous consumer protection provisions. Therefore, this Directive should not apply to contracts in these areas. As regards financial services, Member States should be encouraged, when creating new legislation in areas not regulated at Union level, to be inspired by the relevant existing Union legislation in this area, so as to ensure a level playing field for all consumers and all financial services contracts are.
33) The trader should be obliged to inform the consumer in advance of any commercial arrangements which lead to the consumer paying a deposit to the trader; This also includes modalities in which an amount is blocked on the consumer's credit or debit card.
34) Before the consumer is bound by a distance or off-premises contract, by a contract other than a distance or off-premises contract or a corresponding contract offer, the trader should inform the consumer in a clear and understandable manner. When providing this information, the trader should take into account the special needs of consumers who are particularly vulnerable due to their mental or physical disability, psychological instability, age or gullibility in a way that is reasonably apparent to the trader. However, taking into account these specific needs should not lead to different levels of consumer protection.
35) The information to be provided to the consumer by the trader should be mandatory and should not be changed. Nevertheless, the contracting parties should be able to conclude an express agreement on changing the content of the subsequently concluded contract, for example with regard to the delivery conditions.
36) For distance contracts, the information requirements should be adapted to take into account the technical limitations to which certain media are subject, such as the limited number of characters on certain mobile phone displays or the time frame for television commercials . In these cases, the trader should adhere to minimum information requirements and refer the consumer to another source of information, for example by providing a toll-free telephone number or a hypertext link to a trader's website where the relevant information is immediately available and easily accessible . The obligation to provide information that the consumer has to bear the costs of returning the goods if the goods cannot be returned by normal postal service due to their nature is deemed to have been fulfilled if the entrepreneur uses a carrier (e.g he commissioned the delivery of the goods) and states a price for the return of the goods. In cases where the costs of returning the goods cannot reasonably be calculated in advance by the entrepreneur, for example because the entrepreneur does not offer to organize the return of the goods itself, the entrepreneur should declare that costs must be paid and these Costs may be high, including a reasonable estimate of the maximum cost which could be based on the cost of delivery to the consumer.
37) Since the consumer in the mail order business cannot see the goods before concluding the contract, he should be entitled to a right of withdrawal. For the same reason, the consumer should be allowed to examine and examine the goods he has purchased in order to determine the nature, characteristics and functioning of the goods. For contracts concluded off-premises, the consumer should have the right to withdraw due to the possible element of surprise and/or psychological pressure. Revocation of the contract should terminate the parties' obligation to perform the contract.
38) Electronic commerce websites should clearly state, at the latest at the start of the ordering process, whether there are delivery restrictions and which payment methods are accepted.
39) It is important to ensure that, for distance contracts concluded via websites, consumers are able to fully read and understand the main elements of the contract before placing their order. To this end, this Directive should ensure that these elements of the contract are displayed in close proximity to the confirmation required to place the order. It is also important, in situations of this type, to ensure that consumers recognize the point at which they enter into a payment obligation to the trader. For this reason, consumers' attention should be drawn to the fact that placing the order entails a payment obligation to the entrepreneur through unambiguous wording.
40) The fact that the cancellation periods currently vary in length both between different Member States and between distance contracts and contracts concluded off-premises, causes legal uncertainty and costs. The cancellation period should therefore be the same for all distance selling and off-premises contracts. For service contracts, the cancellation period should end 14 days after the contract is concluded. In the case of sales contracts, the withdrawal period should end 14 days after the day on which the consumer or a third party designated by him, other than the carrier, comes into possession of the goods. In addition, the consumer should be able to exercise the right of withdrawal before the goods are physically received. If the consumer orders several goods in one order but they are then delivered separately, the cancellation period should end 14 days after the day on which the consumer comes into possession of the last goods delivered. If goods are delivered in several lots or parts, the withdrawal period should end 14 days after the day on which the consumer takes possession of the last lot or part.
41) In order to ensure legal certainty, it is appropriate to adopt Regulation (EEC, Euratom) No.1182/71 of the Council of 3. June 1971 laying down the rules for time limits, dates and dates (11) to be applied to the calculation of the time limits referred to in this Directive. Therefore, all deadlines set out in this Directive should be understood as expressed in calendar days. If the beginning of a period measured in days is determined by the time at which an event occurs or an action is taken, the day on which the event or action falls should not be taken into account when calculating this period.
42) The provisions on the right of withdrawal should be without prejudice to the laws, regulations and administrative provisions of the Member States relating to the termination or invalidity of a contract or the ability of a consumer to fulfill his contractual obligations before the deadline set in the contract.
43) If the consumer was not adequately informed by the entrepreneur before concluding a distance contract or a contract concluded off-premises, the cancellation period should be extended. However, in order to ensure legal certainty regarding the duration of the cancellation period, a limit of twelve months should be introduced.
44) Differences in the way in which the right of withdrawal is exercised in the Member States have resulted in costs for entrepreneurs active in cross-border trade. The introduction of a harmonized model withdrawal form for consumers to use should simplify the withdrawal process and ensure legal certainty. For these reasons, Member States should not impose any further requirements on the visual design of the revocation - for example with regard to font size - beyond the uniform model form throughout the Union. However, the consumer should still be free to withdraw from the contract in his own words, provided that his statement to the trader indicating his decision to withdraw is unambiguous. This requirement could be fulfilled by a letter, a telephone call or by returning the goods accompanied by a clear explanation; However, the burden of proof that the withdrawal took place within the time limits set out in the Directive should lie with the consumer. For this reason, it is in the consumer's interest to use a durable medium to notify the entrepreneur of the cancellation.
45) Since experience shows that many consumers and entrepreneurs prefer to communicate via the entrepreneur's website, the latter should have the opportunity to provide consumers with a web sample form for the withdrawal. In this case, the entrepreneur should immediately confirm receipt of the revocation, for example by email.
46) If the consumer withdraws from the contract, the entrepreneur should refund all payments received from the consumer; This also includes payments for the entrepreneur's expenses in connection with the delivery of the goods to the consumer. The refund should not be in the form of a voucher unless the consumer used or expressly accepted vouchers for the original transaction. If the consumer has expressly chosen a specific type of delivery (for example express delivery within 24 hours), even though the trader had offered a normal and generally acceptable type of delivery that would have entailed lower delivery costs, the consumer should cover the difference in costs between the two Types of delivery carry.
47) Some consumers exercise their right of withdrawal after they have used the goods to a greater extent than is necessary to determine their nature, characteristics and functioning. In this case, the consumer should not lose the right of withdrawal, but should be liable for any loss in value of the goods. If he wants to determine the nature, properties and functionality of the goods, the consumer should only handle and inspect them as he would be allowed to do in a shop. For example, the consumer should only be allowed to try on a piece of clothing but not wear it. The consumer should therefore handle and inspect the goods with due care during the withdrawal period. The consumer's obligations in the event of withdrawal should not prevent the consumer from exercising his right of withdrawal.
48) The consumer should be obliged to return the goods no later than 14 days after the day on which he informed the trader of his withdrawal. If the trader or consumer fails to comply with the obligations relating to the exercise of the right of withdrawal, sanctions laid down in national rules in accordance with this Directive and contract law provisions should apply.
49) Certain exceptions to the right of withdrawal should apply to both distance contracts and off-premises contracts. A right of withdrawal could, for example, be inappropriate given the nature of certain goods or services. This applies, for example, to contracts for wine, which is only delivered long after a contract of a speculative nature has been concluded; The value of the wine depends on the fluctuations in market prices (“vin en primeur”). The right of withdrawal should not apply to goods that are made to customer specifications or are clearly tailored to personal needs, such as custom-made curtains, or, for example, to the supply of fuel which, due to its nature, is inextricably linked to other goods after delivery. Find application. Granting the consumer a right of withdrawal could also be inappropriate in the case of certain services where the conclusion of the contract involves the provision of capacities that the entrepreneur may no longer be able to use otherwise if the right of withdrawal is exercised. This would be the case, for example, for reservations in hotels, holiday homes or cultural or sporting events.
50) On the one hand, the consumer should be able to exercise his right of withdrawal even if he has requested the provision of services before the end of the withdrawal period. On the other hand, the entrepreneur should be able to be sure that he will be paid appropriately for the service he provides if the consumer exercises his right of withdrawal. The prorated amount should be calculated based on the contractually agreed total price; however, if the consumer proves that the total price itself is disproportionate, the amount to be paid will be calculated on the basis of the market value of the service provided. The market value should be determined by comparing the price of an equivalent service provided by other operators at the time of the conclusion of the contract. If the consumer wishes the service to be provided before the end of the cancellation period, he should request this expressly and, in the case of contracts concluded off-premises, on a durable medium. Likewise, the trader should inform the consumer on a durable medium of any obligation to pay the costs in proportion to the service already provided. For contracts involving both goods and services, the rules of this Directive on the return of goods should apply to the goods and the rules on compensation for services should apply to the goods.
51) The main difficulties for consumers and one of the main sources of conflict with traders relate to the delivery of goods, for example when goods are lost or damaged in transit or are delivered late or incomplete. It is therefore appropriate to clarify and harmonize national rules on when delivery should take place. The place and modalities of delivery and the rules for determining the conditions and timing of transfer of ownership of the goods should remain subject to national law and should therefore not be affected by this Directive. The delivery rules contained in this Directive should include the possibility for the consumer to allow a third party to obtain possession or control of the goods on his or her behalf. The consumer should be considered to have control over the goods if he or a third party indicated by him has access to the goods for the purpose of their use as owner or the possibility of their resale (for example if he has received the keys or is in possession of the ownership documents).
52) In sales contracts, the delivery of goods can take place in different ways and either immediately or at a later date. If the contracting parties have not agreed on a specific delivery date, the entrepreneur should deliver the goods as soon as possible and in any case no later than 30 days after conclusion of the contract. The rules on late delivery should also take into account that goods which must be manufactured or purchased specifically for the consumer cannot be used by the trader for other purposes without significant loss. Therefore, this Directive should provide for a provision granting the trader an additional reasonable period of time in certain circumstances. If the trader has not delivered the goods within the period agreed with the consumer, the consumer, before he can withdraw from the contract, should request the trader to make the delivery within a reasonable additional period and he should have the right to withdraw from the contract if the entrepreneur does not deliver the goods within this additional period. However, this rule should not apply if the trader has made an unequivocal statement refusing to deliver the goods. It should also not apply where there are certain circumstances in which the delivery time is essential, such as in the case of a wedding dress that should be delivered before the wedding. It should also not apply in circumstances where the consumer informs the trader that delivery on a certain date is essential. For this purpose, the Consumer may use the contact information provided in accordance with this Policy. In these special cases, the consumer should be entitled to withdraw from the contract immediately after the originally agreed delivery period has expired if the entrepreneur has not delivered the goods on time. This Directive should not affect national provisions on the way in which the consumer should notify the trader of his wish to withdraw from the contract.
53) In addition to the consumer's right to withdraw from the contract if the trader fails to fulfill his obligation to deliver the goods in accordance with this Directive, the consumer may have other remedies in accordance with applicable national law, such as granting the trader an additional delivery period allow, enforce the fulfillment of the contract, withhold payments and demand compensation.
54) In accordance with Article 52(3) of Directive 2007/64/EC of the European Parliament and of the Council of 13. November 2007 on payment services in the internal market (12) Member States should be able to prohibit the trader in view of the need to stimulate competition and promote the use of efficient means of payment or. restrict his right to demand payment from the consumer. In any case, entrepreneurs should be prohibited from charging consumers fees that exceed the costs incurred by the entrepreneur for using a particular means of payment.
55) If the goods are sent by the entrepreneur to the consumer, disputes may arise as to the point in time at which risk is transferred in the event of loss or damage. Therefore, this Directive should provide that the consumer is protected against the risk of loss or damage to the goods before he has taken possession of the goods. The consumer should be protected during transport organized or carried out by the trader, even if the consumer has chosen a specific delivery method from a range of options offered by the trader. However, this provision should not apply to contracts where it is for the consumer to collect the goods himself or to commission a carrier to deliver them. As regards the time of transfer of risk, a consumer should be deemed to have taken possession of the goods when he or she receives them.
56) Persons or organizations which, under national law, have a legitimate interest in protecting the contractual rights of consumers should be given the right to refer to a court or administrative authority that can decide on complaints or take appropriate legal action can, to turn.
57) It is necessary that Member States establish sanctions for breaches of this Directive and ensure their enforcement. Sanctions should be effective, proportionate and dissuasive.
58) Consumers should not be deprived of the protection afforded by this Directive. If the law of a third country is applicable to the contract, the assessment of whether the consumer continues to be protected by this Directive should be based on Regulation (EC) No.593/2008.
59) The Commission, after consulting Member States and stakeholders, should examine how best to ensure that all consumers are made aware of their rights at the point of sale.
60) As Directive 2005/29/EC of the European Parliament and of the Council of 11. May 2005 on unfair commercial practices in intra-market business-to-consumer transactions (Unfair Commercial Practices Directive) (13) the supply of goods or the provision of services which the consumer has not ordered, prohibits, but does not provide for a contractual remedy in this case, it is now necessary to provide in this Directive as a contractual remedy that the consumer is exempt from the obligation to provide consideration for such unsolicited supplies or services.
61) Directive 2002/58/EC of the European Parliament and of the Council of 12. July 2002 on the processing of personal data and the protection of privacy in electronic communications (electronic communications privacy directive) (14) already contains a regulation on unsolicited messages and provides for a high level of consumer protection . There is therefore no need for the corresponding provisions in Directive 97/7/EC.
62) It is appropriate for the Commission to review this Directive in the event that obstacles to the internal market are identified. In its review, the Commission should pay particular attention to the possibilities available to Member States to maintain or introduce specific national provisions, including in certain areas of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (15) and Directive 1999/44/EC of the European Parliament and of the Council of 25. May 1999 on certain aspects of the purchase of consumer goods and guarantees for consumer goods (16). This review could lead to the Commission submitting a proposal to amend this Directive; This proposal may also include changes to other consumer protection legislation and arise from the Commission's commitment in its consumer policy strategy to review the Union acquis with a view to ensuring a high and uniform level of consumer protection.
63) Directives 93/13/EEC and 1999/44/EC should be amended to require Member States to inform the Commission of the adoption of specific national rules in certain areas.
64) Directives 85/577/EEC and 97/7/EC should be repealed.
65) Since the objective of this Directive, which is to contribute to the proper functioning of the internal market by achieving a high level of consumer protection, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Union level, the Union may, in accordance with Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
66) This Directive respects the fundamental rights and principles recognized in particular by the Charter of Fundamental Rights of the European Union.
67) Under point 34 of the Interinstitutional Agreement on Better Law-Making (17), Member States are invited to draw up, for their own purposes and in the interest of the Union, their own tables from which to the extent possible, the correspondence between this Directive and the transposition measures should be identified and published —
HAVE ADOPTED THE FOLLOWING POLICY:
CHAPTER I
SUBJECT, DEFINITIONS AND SCOPE
Article 1
Item
The purpose of this Directive is to achieve a high level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States relating to contracts concluded between consumers and traders, thereby contributing to the proper functioning of the internal market.
Article 2
Definitions
For the purposes of this policy, the terms
mean|
1. |
“Consumer” means any natural person who, in contracts covered by this Directive, acts for purposes outside his or her trade, business, craft or profession; |
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2. |
"entrepreneur" means any natural or legal person, whether public or private, acting in contracts covered by this Directive, either by themselves or through another person acting on their behalf or on behalf of them, for the purposes of: which can be attributed to their commercial, business, craft or professional activity; |
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3. |
“Goods” means movable tangible property other than items sold pursuant to foreclosure or other legal action; Water, gas and electricity are also considered goods within the meaning of this Directive if they are offered for sale in a limited volume or in a certain quantity; |
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4. |
“goods manufactured to consumer specifications” means goods that are not prefabricated and for the production of which an individual selection or decision by the consumer is decisive; |
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5. |
“sales contract” means any contract by which the trader transfers or agrees to transfer ownership of goods to the consumer and the consumer pays or agrees to pay the price therefor, including contracts relating to both goods and services ; |
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6. |
“Service contract” means any contract, which is not a sales contract, under which the entrepreneur provides or agrees to provide a service to the consumer and the consumer pays or agrees to pay the price for this; |
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7. |
“Distance selling contract” means any contract concluded between the entrepreneur and the consumer without the simultaneous physical presence of the entrepreneur and the consumer within the framework of a sales or distribution agreement organized for distance selling. Service system is concluded, whereby only one or more means of distance communication is/are used up to and including the time of conclusion of the contract; |
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8. |
“contract concluded away from business premises” means any contract between the entrepreneur and the consumer,
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9. |
“Business premises”
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10. |
“durable data carrier” means any medium that allows the consumer or the entrepreneur to store information addressed to him personally in such a way that he can subsequently view it for a period of time appropriate to the purposes of the information, and that is unchanged Allows playback of the stored information; |
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11. |
“digital content” means data that is produced and provided in digital form; |
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12. |
“Financial service” means any banking service as well as any service related to the granting of credit, insurance, pension provision for individuals, investment or payment; |
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13. |
"public auction" means a sales method in which the trader offers goods or services to consumers who are present in person at the auction or who are given the opportunity to do so, in a transparent procedure carried out by the auctioneer and based on competitive bids, in which the winning bidder is obliged to purchase the goods or services; |
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14. |
"Commercial guarantee" means any obligation given to the consumer by the entrepreneur or a manufacturer (guarantor) in addition to the statutory guarantee to reimburse the purchase price or to replace or repair the goods or to provide services for them if they do not have the characteristics or do not meet any requirements other than freedom from defects as set out in the warranty statement or relevant advertising available at or before the conclusion of the Agreement; |
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15. |
“accessory contract” means a contract by which the consumer purchases goods or services related to a distance contract or an off-premises contract and in which those goods or services are purchased by the entrepreneur or a third party on the basis of a Agreement between this third party and the entrepreneur is delivered or provided. |
Article 3
Scope
(1) This Policy applies, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer. It also applies to contracts for the supply of water, gas, electricity or district heating, including by public providers, provided that these goods are supplied on a contractual basis.
(2) If a provision of this Directive conflicts with a provision of another Union legal act regulating specific sectors, the provision of that other Union legal act shall take precedence and apply to those specific sectors.
(3) This policy does not apply to contracts
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a) |
on social services, including the provision and rental of social housing, childcare or support for permanently or temporarily vulnerable families or individuals, including long-term care; |
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b) |
on health services referred to in Article 3(a) of Directive 2011/24/EU, regardless of whether they are provided by a health care body; |
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c) |
on games of chance that require a monetary stake, including lotteries, casino games of chance and betting; |
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d) |
on financial services; |
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e) |
on the creation, acquisition or transfer of ownership or other rights to real estate; |
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f) |
about the construction of new buildings, significant renovation work on existing buildings or the rental of living space; |
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g) |
which falls within the scope of Council Directive 90/314/EEC of 13. June 1990 on package holidays (18); |
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h) |
which falls within the scope of Directive 2008/122/EC of the European Parliament and of the Council of 14. January 2009 on consumer protection in relation to certain aspects of timeshare contracts, long-term holiday product contracts and resale and exchange contracts (19); |
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i) |
which, in accordance with the law of the Member States, are concluded before a public official who is legally obliged to be independent and impartial and who must ensure, through comprehensive legal information, that the consumer only enters into the contract on the basis of a thorough legal examination and with knowledge of its legal implications; |
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j) |
on the delivery of food, beverages or other household items for everyday use, which are delivered to the residence, place of stay or place of work of a consumer by an entrepreneur as part of frequent and regular trips; |
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k) |
on the transport of persons, with the exception of Article 8(2) and Articles 19 and 22; |
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l) |
which are closed using vending machines or automated business premises; |
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m) |
which are concluded with operators of telecommunications means for their use using public telephones or which are concluded for the use of a single telephone, Internet or fax connection established by a consumer. |
(4) Member States may decide not to apply this Directive to contracts concluded away from business premises where the consideration payable by the consumer does not exceed EUR 50 and not to maintain or introduce corresponding national provisions. Member States may set a lower threshold in their national legislation.
(5) This Directive is without prejudice to general domestic contract law, such as provisions relating to the validity, formation or effects of a contract, to the extent that aspects of general contract law are not governed by this Directive.
(6) This Directive does not prevent traders from offering consumers contractual conditions that go beyond the protection provided for in this Directive.
Article 4
Degree of harmonization
Unless this Directive provides otherwise, Member States shall not maintain or introduce national legislation derogating from the provisions of this Directive; this also applies to more stringent or less stringent legislation ensuring a different level of consumer protection.
CHAPTER II
INFORMATION FOR CONSUMERS FOR CONTRACTS OTHER THAN DISTANCE CONTRACTS OR OFF-BUSINESS CONTRACTS
Article 5
Information obligations for contracts other than distance selling contracts or contracts concluded outside of business premises
(1) Before the consumer is bound by a contract other than a distance contract or a contract concluded off-premises or a corresponding contract offer, the entrepreneur shall inform the consumer in a clear and comprehensible manner of the following, unless this information is already available directly given the circumstances:
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a) |
the essential characteristics of the goods or services to the extent appropriate for the data carrier and the goods or services; |
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b) |
the identity of the entrepreneur, for example his trading name and the address of the place where he is established, as well as his telephone number; |
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c) |
the total price of the goods or services, including all taxes and duties or, where the price cannot reasonably be calculated in advance due to the nature of the goods or services, the method of calculating the price and, if applicable, any additional freight, Delivery or shipping costs or, in cases where such costs cannot reasonably be calculated in advance, the fact that such additional costs may apply; |
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d) |
if applicable, the payment, delivery and service conditions, the date by which the entrepreneur has undertaken to deliver the goods or provide the service, as well as the entrepreneur's procedure for dealing with complaints; |
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e) |
in addition to pointing out the existence of a statutory warranty for the goods, if applicable, the existence and conditions of after-sales services and commercial guarantees; |
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f) |
where applicable, the duration of the contract or the conditions of termination of permanent contracts or automatically renewing contracts; |
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g) |
where applicable, the functionality of digital content, including applicable technical protection measures for such content; |
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h) |
if necessary - where essential - the interoperability of digital content with hardware and software, insofar as this is known to the entrepreneur or should reasonably be known; |
(2) Paragraph 1 applies to contracts for the supply of water, gas or electricity even if they are not offered for sale in a limited volume or in a certain quantity, of district heating or of digital content that is not on be delivered on a physical data carrier.
(3) Member States are not obliged to apply paragraph 1 to contracts which concern everyday transactions and are immediately performed at the time of conclusion of the contract.
(4) Member States may introduce or maintain additional pre-contractual information requirements for contracts to which this Article applies.
CHAPTER III
INFORMATION FOR CONSUMERS AND RIGHT OF CANCELLATION FOR DISTANCE SELLING AND OFF-BUSINESS CONTRACTS
Article 6
Information obligations for distance selling and contracts concluded outside of business premises
(1) Before the consumer is bound by a distance contract or a contract concluded off-premises or a corresponding contract offer, the entrepreneur informs the consumer in a clear and understandable manner of the following:
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a) |
the essential characteristics of the goods or services, to the extent appropriate for the means of communication and the goods or services; |
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b) |
the identity of the entrepreneur, for example his trade name; |
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c) |
the address of the place where the entrepreneur is established and, if applicable, his telephone number, fax number and email address so that the consumer can quickly contact him and communicate efficiently with him, as well as, where applicable, the address and identity of the entrepreneur on whose behalf he acts; |
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d) |
if different from the address indicated in point c, the business address of the trader and, if applicable, the business address of the trader on whose behalf he is acting, to which the consumer may address any complaint; |
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e) |
the total price of the goods or services, including all taxes and duties, or where the price cannot reasonably be calculated in advance due to the nature of the goods or services, the method of calculating the price and, if applicable, any additional freight, Delivery or shipping costs and any other costs, or where such costs cannot reasonably be calculated in advance, the fact that such additional costs may apply. In the case of a permanent contract or a subscription contract, the total price includes the total costs incurred per billing period. If fixed amounts are charged for such a contract, the total price also includes the total monthly costs. 08.11.2022 dated 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 (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION — based on the Treaty on the Functioning of the European Union, in particular Article 114, on the proposal of the European Commission, according to the opinion of the European Economic and Social Committee (1), according to the opinion of the Committee of the Regions (2), according to the ordinary legislative procedure (3), Considering the following reasons: 1) In Council Directive 85/577/EEC of 20 December 1985 on consumer protection in relation to contracts concluded away from business premises (4) and Directive 97 /7/EC of the European Parliament and of the Council of May 20, 1997 on consumer protection in connection with the conclusion of distance contracts (5) a number of contractual rights of consumers are enshrined. HAVE ADOPTED THE FOLLOWING POLICY: CHAPTER I SUBJECT, DEFINITIONS AND SCOPE Article 1 Item The purpose of this Directive is to achieve a high level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States relating to contracts concluded between consumers and traders, thereby contributing to the proper functioning of the internal market. Article 2 Definitions For the purposes of this policy, the terms mean
Article 3 Scope (1) This Policy applies, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer. It also applies to contracts for the supply of water, gas, electricity or district heating, including by public providers, provided that these goods are supplied on a contractual basis. (2) If a provision of this Directive conflicts with a provision of another Union legal act regulating specific sectors, the provision of that other Union legal act shall take precedence and apply to those specific sectors. (3) This policy does not apply to contracts
(4) Member States may decide not to apply this Directive to contracts concluded away from business premises where the consideration payable by the consumer does not exceed EUR 50 and not to maintain or introduce corresponding national provisions. Member States may set a lower threshold in their national legislation. (5) This Directive is without prejudice to general domestic contract law, such as provisions relating to the validity, formation or effects of a contract, to the extent that aspects of general contract law are not governed by this Directive. (6) This Directive does not prevent traders from offering consumers contractual terms and conditions that go beyond the protection provided for in this Directive. Article 4 Degree of harmonization Unless this Directive provides otherwise, Member States shall not maintain or introduce national legislation derogating from the provisions of this Directive; this also applies to more stringent or less stringent legislation ensuring a different level of consumer protection. CHAPTER II INFORMATION FOR CONSUMERS FOR CONTRACTS OTHER THAN DISTANCE CONTRACTS OR OFF-BUSINESS CONTRACTS Article 5 Information obligations for contracts other than distance selling contracts or contracts concluded outside of business premises (1) Before the consumer is bound by a contract other than a distance contract or a contract concluded off-premises or a corresponding contract offer, the entrepreneur shall inform the consumer in a clear and comprehensible manner of the following, unless this information is already available directly given the circumstances:
(2) Paragraph 1 applies to contracts for the supply of water, gas or electricity even if they are not offered for sale in a limited volume or in a certain quantity, of district heating or of digital content that is not on be delivered on a physical data carrier. (3) Member States are not obliged to apply paragraph 1 to contracts which concern everyday transactions and are immediately performed at the time of conclusion of the contract. (4) Member States may introduce or maintain additional pre-contractual information requirements for contracts to which this Article applies. CHAPTER III INFORMATION FOR CONSUMERS AND RIGHT OF CANCELLATION FOR DISTANCE SELLING AND OFF-BUSINESS CONTRACTS Article 6 Information obligations for distance selling and contracts concluded outside of business premises (1) Before the consumer is bound by a distance contract or a contract concluded off-premises or a corresponding contract offer, the entrepreneur informs the consumer in a clear and understandable manner of the following:
(2) Paragraph 1 applies to contracts for the supply of water, gas or electricity even if they are not offered for sale in a limited volume or in a certain quantity, of district heating or of digital content that is not on be delivered on a physical data carrier. (3) In the event of a public auction, the relevant information from the auctioneer may be transmitted instead of the information referred to in paragraph 1 letters b, c and d. (4) The information referred to in paragraph 1 letters h, i and j can be provided using the model cancellation policy in accordance with Annex I Part A. The entrepreneur's obligation to provide information pursuant to paragraph 1 letters h, i and j is fulfilled if the entrepreneur has correctly completed this information form and sent it to the consumer. (5) The information referred to in paragraph 1 is an integral part of the distance contract or the contract concluded away from business premises and may not be changed unless the contracting parties expressly agree otherwise. (6) If the entrepreneur has not complied with his obligation to provide information about the additional and other costs in accordance with paragraph 1 letter e or about the costs of returning the goods in accordance with paragraph 1 letter i, the consumer is responsible for the additional and other costs not to wear. (7) Member States may impose language requirements relating to the contractual information in their national Recht maintained or introduced to ensure that this information is readily understood by the consumer. (8) The information requirements set out in this Directive are in addition to the information requirements under Directive 2006/123/EC and Directive 2000/31/EC and do not prevent Member States from laying down additional information requirements in accordance with those Directives. Without prejudice to the first subparagraph, in the event of a conflict between a provision of Directive 2006/123/EC or Directive 2000/31/EC concerning the content of the information and the manner in which the information is to be provided and a provision of this Directive the provisions of this Policy take precedence. (9) The burden of proof for compliance with the information obligations stated in this chapter lies with the entrepreneur. Article 7 Formal requirements for contracts concluded off-premises (1) For contracts concluded away from business premises, the trader shall provide the information required by Article 6(1) to the consumer on paper or, if the consumer agrees, on another durable medium. This information must be readable and written in clear and understandable language. (2) The entrepreneur shall provide the consumer with a copy of the signed contractual document or the confirmation of the concluded contract on paper or, if the consumer agrees, on another durable medium, which copy may also contain the confirmation of the previously expressly the declared consent and information of the consumer in accordance with Article 16(m). (3) If a consumer wishes that the service or supply of water, gas or electricity, if not offered for sale in a limited volume or quantity, or of district heating, during the withdrawal period referred to in Article 9 paragraph 2 begins, the entrepreneur requests the consumer to declare a corresponding express request on a durable data medium. (4) In the case of contracts concluded away from business premises, if the consumer has expressly requested the services of the entrepreneur to carry out repair or maintenance work, the entrepreneur and the consumer immediately fulfill their contractual obligations and the amount payable by the consumer If the fee does not exceed EUR 200, the following applies:
Member States may decide not to apply this paragraph. (5) Member States shall not establish any further formal pre-contractual information requirements with regard to the fulfillment of the information obligations set out in this Directive. Article 8 Formal requirements for distance travelsentence contracts (1) In the case of distance contracts, the entrepreneur shall provide the information required by Article 6(1) to the consumer in clear and understandable language in a manner adapted to the means of distance communication used or make this information available accordingly. If this information is provided on a durable medium, it must be readable. (2) If a distance contract concluded electronically requires the consumer to pay, the trader shall clearly and prominently inform the consumer, immediately before the latter places his order, of the provisions referred to in Article 6 paragraph 1 letters a, e, o and p mentioned information. The entrepreneur ensures that the consumer expressly confirms when ordering that the order is associated with a payment obligation. If the ordering process involves the activation of a button or a similar function, this button or corresponding function must be clearly legibly marked exclusively with the words “order with obligation to pay” or a corresponding clear wording that informs the consumer that the order entails an obligation to pay is associated with the entrepreneur. If the entrepreneur does not comply with this subparagraph, the consumer is not bound by the contract or order. (3) On websites for electronic commerce, it will be clearly stated at the start of the ordering process at the latest whether there are delivery restrictions and which means of payment are accepted. (4) If the contract is concluded using a means of distance communication on which only limited space or time is available to display the information, the entrepreneur must provide at least the pre-contractual information via the respective means of distance communication before the contract is concluded concerning the essential characteristics of the goods or services referred to in Article 6(1)(a), (b), (e), (h) and (o), the identity of the trader, the total price, the right of withdrawal, the duration of the contract and the conditions for termination of contracts of indefinite duration. The other information referred to in Article 6(1) shall be provided by the trader to the consumer in an appropriate manner in accordance with paragraph 1 of this Article. (5) If the entrepreneur calls the consumer with a view to concluding a distance contract, he shall, without prejudice to paragraph 4, disclose at the beginning of the conversation with the consumer his identity and, if applicable, the identity of the person on whose behalf he is calling, as well Disclose the business purpose of the call. (6) For distance contracts concluded by telephone, Member States may provide that the trader must confirm the offer to the consumer and the consumer is only bound once he has signed the offer or given his written consent. Member States may also provide that such confirmations must be made on a durable medium. (7) The entrepreneur shall provide the consumer with confirmation of the concluded contract on a durable medium within a reasonable period of time after the conclusion of the distance contract, at the latest upon delivery of the goods or before the performance of the service begins.This confirmation contains:
(8) If a consumer wishes that the service or supply of water, gas or electricity, if not offered for sale in a limited volume or quantity, or of district heating, during the withdrawal period referred to in Article 9 paragraph 2 begins, the entrepreneur requests the consumer to declare a corresponding express request. (9) This article does not affect the provisions on the conclusion of electronic contracts and orders in accordance with Articles 9 and 11 of Directive 2000/31/EC. (10) Member States shall not establish any further formal pre-contractual information requirements with regard to the fulfillment of the information obligations set out in this Directive. Article 9 Right of withdrawal (1) Unless one of the exceptions referred to in Article 16 applies, the consumer has a period of 14 days within which to conclude a distance or off-premises contract without giving any reasons and without paying any costs other than those specified in Article 13 paragraph 2 and Article 14 may be revoked. (2) Without prejudice to Article 10, the withdrawal period provided for in paragraph 1 of this Article ends
(3) Member States shall not prohibit the contracting parties from fulfilling their contractual obligations during the withdrawal period.However, for contracts concluded away from business premises, Member States may maintain national legislation which prohibits the trader from demanding payment from the consumer within a certain period of time after the conclusion of the contract and receive. Article 10 Failure to provide information about the right of withdrawal (1) If the trader has not informed the consumer of his right of withdrawal in accordance with Article 6 paragraph 1 letter h, the withdrawal period expires 12 months after the expiry of the original withdrawal period in accordance with Article 9 paragraph 2. (2) If the trader has provided the consumer with the information referred to in paragraph 1 within 12 months of the day referred to in Article 9(2), the withdrawal period shall end 14 days after the day on which the consumer received this information. Article 11 Exercise the right of withdrawal (1) The consumer informs the entrepreneur of his decision to cancel the contract before the end of the cancellation period. For this purpose, the consumer can either
Member States shall not lay down any formal requirements for the model withdrawal form other than those set out in Part B of Annex I. (2) The withdrawal period referred to in Article 9 paragraph 2 and Article 10 is met if the consumer sends the notification of the exercise of the right of withdrawal before the end of the withdrawal period. (3) In addition to the options mentioned in paragraph 1, the entrepreneur may also give the consumer the choice to electronically fill out either the model cancellation form in Annex I, Part B or a corresponding clear declaration in any other form on the entrepreneur's website and send it off. In these cases, the entrepreneur must immediately send the consumer confirmation of receipt of such a revocation on a durable medium. (4) The burden of proof for the exercise of the right of withdrawal under this article lies with the consumer. Article 12 Effects of revocation The obligations of the contractual parties end with the exercise of the right of withdrawal
Article 13 Obligations of the entrepreneur in the event of cancellation (1) The entrepreneur must repay all payments received from the consumer, including delivery costs, if applicable, immediately and in any case no later than 14 days from the day on which he informs of the consumer's decision in accordance with Article 11 to revoke the contract. The trader shall make the repayment in accordance with the first subparagraph using the same means of payment used by the consumer in the original transaction, unless expressly agreed otherwise with the consumer and provided that the consumer incurs losses as a result of such There are no repayment costs. (2) Without prejudice to paragraph 1, the entrepreneur is not obliged to reimburse additional costs if the consumer has expressly chosen a type of delivery other than the cheapest standard delivery offered by the entrepreneur. (3) In the case of sales contracts, the entrepreneur can make the repaymentng refuse until he has received the goods back or until the consumer has provided proof that he has sent the goods back, whichever is the earlier, unless the entrepreneur has offered to collect the goods himself. Article 14 Duties of the consumer in the event of cancellation (1) The consumer must deliver the goods to the entrepreneur or one of his agents without undue delay and in any case no later than 14 days from the day on which he notified the entrepreneur of his decision to withdraw from the contract in accordance with Article 11 To return or hand over the goods to a person authorized to receive the goods, unless the entrepreneur has offered to collect the goods himself. The deadline is met if the consumer sends the goods before the deadline of 14 days has expired. The consumer only has to bear the direct costs of returning the goods, unless the entrepreneur has agreed to bear these costs or the entrepreneur has failed to inform the consumer that he will bear these costs has to carry. In the case of contracts concluded off-premises, where the goods have been delivered to the consumer's home at the time of conclusion of the contract, the entrepreneur will collect the goods at his own expense if the goods are of such a nature that they cannot normally be delivered by delivery Post can be returned. (2) The consumer is only liable for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary to check the nature, properties and functionality of the goods. In no event shall the consumer be liable for any loss in value of the goods if he has not been informed by the trader of his right of withdrawal in accordance with Article 6(1)(h). (3) If a consumer exercises the right of withdrawal after making a request in accordance with Article 7 paragraph 3 or Article 8 paragraph 8, he shall pay to the trader an amount proportional to what had been paid up to that point in which the consumer informs the entrepreneur of the exercise of the right of withdrawal, compared to the total scope of the contractually agreed services. The pro rata amount that the consumer has to pay to the entrepreneur is calculated on the basis of the contractually agreed total price. If the total price is excessive, the pro rata amount will be calculated based on the market value of the service provided. (4) The consumer is not responsible for:
(5) Except as otherwise provided in Article 13(2) and this article, the consumer may not be held liable for exercising his right of withdrawal. Article 15 Effects of exercising the right of withdrawal on accessory contracts (1) Without prejudice to Article 15 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on consumer credit agreements (20) if the consumer exercise its right to withdraw from a distance or off-premises contract in accordance with Articles 9 to 14 of this Directive, all ancillary contracts shall also be automatically terminated, without incurring any costs to the consumer, other than those provided for in Articles 13(2) and Articles 14 of this Directive are provided for. (2) Member States shall determine the details regarding the termination of these contracts. Article 16 Exceptions to the right of withdrawal Member States shall not provide for the right of withdrawal in accordance with Articles 9 to 15 for distance contracts and contracts concluded off-premises if
CHAPTER IV OTHER CONSUMER RIGHTS Article 17 Scope (1) Articles 18 and 20 apply to sales contracts. These articles do not apply to contracts for the supply of water, gas or electricity, unless offered for sale in a limited volume or quantity, of district heating or of digital content that is not delivered on a physical medium. (2) Articles 19, 21 and 22 apply to sales and service contracts and contracts for the supply of water, gas, electricity, district heating or digital content. Article 18 Delivery (1) Unless the contracting parties have agreed otherwise with regard to the time of delivery, the entrepreneur shall deliver the goods by giving physical possession of the goods or control over the goods to the consumer immediately, but not later than thirty days later Conclusion of contract, transfers. (2) If the entrepreneur has not fulfilled his obligation to deliver the goods at the time agreed with the consumer or within the period specified in paragraph 1, the consumer shall request him to make the delivery within an additional period appropriate to the circumstances . If the entrepreneur does not deliver the goods within this additional period, the consumer is entitled to withdraw from the contract. Subparagraph 1 does not apply to sales contracts if the entrepreneur has refused to deliver the goods or if delivery within the agreed period is essential, taking into account all the circumstances accompanying the conclusion of the contract, or if the consumerr informs the entrepreneur before the contract is concluded that delivery by a specific date or on a specific day is essential. In these cases, the consumer is entitled to withdraw from the contract immediately if the entrepreneur does not deliver the goods at the time agreed with the consumer or within the period referred to in paragraph 1. (3) In the event of withdrawal, the entrepreneur must immediately refund all amounts paid in accordance with the contract. (4) In addition to the right of withdrawal referred to in paragraph 2, the consumer may have other remedies provided for by national law. Article 19 Fees for the use of certain means of payment Member States shall prohibit traders from charging consumers for the use of means of payment that exceed the costs incurred by the trader for using such means of payment. Article 20 Risk transfer In contracts where the entrepreneur sends the goods to the consumer, the risk of loss or damage to the goods passes to the consumer if he or a third party designated by the consumer who is not the carrier receives the goods has taken possession. However, without prejudice to the consumer's rights against the carrier, the risk passes to the consumer upon handover to the carrier if the carrier was commissioned by the consumer to transport the goods and this option was not offered by the entrepreneur. Article 21 Telephone communication Member States shall ensure that the consumer is not obliged to pay more than the basic tariff when contacting the trader by telephone if the trader has set up a telephone line for contacting him by telephone in connection with the contract concluded. The right of telecommunications service providers to charge for such calls is not affected by subparagraph 1. Article 22 Additional payments Before the consumer is bound by the contract or offer, the entrepreneur must obtain the consumer's express consent to any additional payment that goes beyond the agreed fee for the entrepreneur's main performance obligation. If the entrepreneur has not obtained express consent from the consumer, but has obtained it by using default settings that must be rejected by the consumer if he wants to avoid the additional payment, the consumer is entitled to a refund of this payment. CHAPTER V GENERAL RULES Article 23 Law Enforcement (1) Member States shall ensure that adequate and effective means are in place to ensure compliance with this Directive. (2) The means referred to in paragraph 1 include legislation under which one or more of the following bodies determined by national law may bring proceedings before the courts or the relevant administrative authorities in accordance with the relevant national law.to ensure the application of national provisions implementing this Directive:
Article 24 Sanctions (1) Member States shall lay down sanctions for breaches of national rules adopted pursuant to this Directive and shall take the measures necessary to implement them. Sanctions must be effective, proportionate and dissuasive. (2) Member States shall notify the Commission of these rules by 13 December 2013 and shall immediately inform it of any subsequent changes to these rules. Article 25 Indispensability of the directive If the law of a Member State is applicable to the contract, consumers cannot waive the rights conferred on them by national measures implementing this Directive. Contractual clauses which directly or indirectly waive or limit the rights arising from this Directive are not binding on the consumer. Article 26 Information Member States shall take appropriate measures to inform consumers and traders about the national law transposing this Directive and, where appropriate, encourage traders and the authors of a code within the meaning of Article 2(g) of Directive 2005/29/EC to: Inform consumers about their codes of conduct. Article 27 Unordered goods and services If unsolicited goods, water, gas, electricity, district heating or digital content are supplied or unsolicited services are provided in violation of Article 5(5) and point 29 of Annex I to Directive 2005/29/EC, the consumer is exempt from the obligation Provision of the consideration is exempt. In these cases, the absence of a response from the consumer to such an unsolicited delivery or provision does not constitute consent. Article 28 Implementation (1) Member States shall adopt and publish, by 13 December 2013, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of these measures to the Commission in the form of documents. The Commission shall use these documents for the purposes of the report referred to in Article 30. You apply these measures from June 13, 2014. When adopting these measures, Member States shall refer to this Directive in the rules themselves or by means of a reference in the official publication. Member States shall regulate the details of the reference. (2) This policy applies to contracts entered into after June 13, 2014. Article 29 Reporting requirements (1) If a Member State makes use of a regulatory option under Article 3(4), Article 6(7) and (8), Article 7(4), Article 8(6) and Article 9(3), it shall inform the Commission by 13. December 2013 of this and of all subsequent changes. (2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: on a special website. (3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall consult the parties concerned on this information. Article 30 Commission reporting and review By 13 December 2016, the Commission shall submit a report on the application of this Directive to the European Parliament and the Council.In particular, this report provides an assessment of the provisions of this Digital Content Directive, including the right of withdrawal. This report contains informationwhere appropriate, legislative proposals to adapt this Directive to developments in the field of consumer rights are attached. CHAPTER VI FINAL PROVISIONS Article 31 Repeal of legal acts Directives 85/577/EEC and 97/7/EC as amended by Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 on the distance marketing of financial services to consumers ( References to the repealed Directives shall be deemed to be references to this Directive in accordance with the correspondence table in Annex II. Article 32 Amendment of Directive 93/13/EEC The following article is inserted into Directive 93/13/EEC: “Article 8a (1) If a Member State adopts rules pursuant to Article 8, it shall inform the Commission thereof and of any subsequent amendments, in particular if those rules:
(2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: on a special website. (3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall hear the interested parties on this information.” Article 33 Amendment of Directive 1999/44/EC The following article is inserted into Directive 1999/44/EC: “Article 8a Reporting requirements (1) If, in accordance with Article 8(2), a Member State adopts stricter consumer protection rules than those provided for in Articles 5(1) to (3) and 7(1), it shall inform the Commission thereof and of any subsequent amendments. (2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: on a special website. (3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall hear the interested parties on this information.” Article 34 Entry into force This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union. Article 35 Addressees This Directive is addressed to the Member States. Done at Strasbourg on October 25, 2011. On behalf of the European Parliament The President J. BUZEK On behalf of the Council The President M. DOWGIELEWICZ |
(2) Paragraph 1 applies to contracts for the supply of water, gas or electricity even if they are not offered for sale in a limited volume or in a certain quantity, of district heating or of digital content that is not on be delivered on a physical data carrier.
(3) In the event of a public auction, the relevant information from the auctioneer may be transmitted instead of the information referred to in paragraph 1 letters b, c and d.
(4) The information referred to in paragraph 1 letters h, i and j can be provided using the model cancellation policy in accordance with Annex I Part A. The entrepreneur's obligation to provide information pursuant to paragraph 1 letters h, i and j is fulfilled if the entrepreneur has correctly completed this information form and sent it to the consumer.
(5) The information referred to in paragraph 1 is an integral part of the distance contract or the contract concluded away from business premises and may not be changed unless the contracting parties expressly agree otherwise.
(6) If the entrepreneur has not complied with his obligation to provide information about the additional and other costs in accordance with paragraph 1 letter e or about the costs of returning the goods in accordance with paragraph 1 letter i, the consumer is responsible for the additional and other costs not to wear.
(7) Member States may maintain or introduce language requirements relating to contractual information in their national law in order to ensure that such information is readily understood by the consumer.
(8) The information requirements set out in this Directive are in addition to the information requirements under Directive 2006/123/EC and Directive 2000/31/EC and do not prevent Member States from imposing additional information requirements in accordance with those Directives.
Without prejudice to the first subparagraph, in the event of a conflict between a provision of Directive 2006/123/EC or Directive 2000/31/EC concerning the content of the information and the manner in which the information is to be provided and a provision of this Directive the provisions of this Policy take precedence.
(9) The burden of proof for compliance with the information obligations stated in this chapter lies with the entrepreneur.
Article 7
Formal requirements for contracts concluded off-premises
(1) For contracts concluded away from business premises, the trader shall provide the information required by Article 6(1) to the consumer on paper or, if the consumer agrees, on another durable medium. This information must be readable and written in clear and understandable language.
(2) The entrepreneur shall provide the consumer with a copy of the signed contractual document or the confirmation of the concluded contract on paper or, if the consumer agrees, on another durable medium, which copy may also contain the confirmation of the previously expressly the declared consent and information of the consumer in accordance with Article 16(m).
(3) If a consumer wishes that the service or supply of water, gas or electricity, if not offered for sale in a limited volume or quantity, or of district heating, during the withdrawal period referred to in Article 9 paragraph 2 begins, the entrepreneur requests the consumer to declare a corresponding express request on a durable data medium.
(4) In the case of contracts concluded away from business premises, if the consumer has expressly requested the services of the entrepreneur to carry out repair or maintenance work, the entrepreneur and the consumer immediately fulfill their contractual obligations and the amount payable by the consumer If the fee does not exceed EUR 200, the following applies:
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a) |
The trader shall provide the consumer with the information referred to in Article 6(1)(b) and (c), as well as information on the amount of the price or the method of calculating the price, together with an estimate of the total costs on paper or, if the consumer agrees, on paper other permanent storage medium available. The trader shall provide the information referred to in Article 6(1)(a), (h) and (k), but may refrain from providing it on paper or another durable medium if the consumer expressly agrees to this. |
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Confirmation of the contract provided in accordance with paragraph 2 of this Article shall contain the information referred to in Article 6(1). |
Member States may decide not to apply this paragraph.
(5) Member States shall not impose any further formal pre-contractual information requirements with regard to the fulfillment of the information obligations set out in this Directive.
Article 8
Formal requirements for distance selling contracts
(1) In the case of distance contracts, the entrepreneur shall provide the consumer with the information required by Article 6(1) in clear and understandable language in a manner adapted to the means of distance communication used or makes this information available accordingly. If this information is provided on a durable medium, it must be readable.
(2) If a distance contract concluded electronically requires the consumer to pay, the trader shall clearly and prominently inform the consumer, immediately before the latter places his order, of the provisions referred to in Article 6 paragraph 1 letters a, e, o and p mentioned information.
The entrepreneur ensures that the consumer expressly confirms when ordering that the order is associated with a payment obligation. If the ordering process involves the activation of a button or a similar function, this button or corresponding function must be clearly legibly marked exclusively with the words “order with obligation to pay” or a corresponding clear wording that informs the consumer that the order entails an obligation to pay is associated with the entrepreneur. If the entrepreneur does not comply with this subparagraph, the consumer is not bound by the contract or order.
(3) On websites for electronic commerce, it will be clearly stated at the start of the ordering process at the latest whether there are delivery restrictions and which means of payment are accepted.
(4) If the contract is concluded using a means of distance communication on which there is only limited space or If a limited time is available, the trader must provide, by means of the relevant means of distance communication, at least the pre-contractual information before the conclusion of the contract which contains the essential characteristics of the goods or services referred to in Article 6(1)(a), (b), (e), (h) and (o). , the identity of the entrepreneur, the total price, the right of withdrawal, the contract term and the conditions of termination of unlimited contracts. The trader shall provide the consumer with the other information referred to in Article 6(1) in an appropriate manner in accordance with paragraph 1 of this Article.
(5) If the entrepreneur calls the consumer with a view to concluding a distance contract, he shall, without prejudice to paragraph 4, disclose at the beginning of the conversation with the consumer his identity and, if applicable, the identity of the person on whose behalf he is calling, as well Disclose the business purpose of the call.
(6) For distance contracts concluded by telephone, Member States may provide that the trader must confirm the offer to the consumer and the consumer is only bound once he has signed the offer or given his written consent. Member States may also provide that such confirmations must be made on a durable medium.
(7) The entrepreneur shall provide the consumer with confirmation of the concluded contract on a durable medium within a reasonable period of time after the conclusion of the distance contract, at the latest upon delivery of the goods or before the performance of the service begins. This confirmation contains:
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a) |
all the information referred to in Article 6(1), unless the trader has already provided this information to the consumer on a durable medium before the distance contract is concluded, and |
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where applicable, confirmation of the consumer's prior express consent and knowledge in accordance with Article 16(m). |
(8) If a consumer wishes that the service or supply of water, gas or electricity, if not offered for sale in a limited volume or quantity, or of district heating, during the withdrawal period referred to in Article 9 paragraph 2 begins, the entrepreneur requests the consumer to declare a corresponding express request.
(9) This Article does not affect the provisions on the conclusion of electronic contracts and orders in accordance with Articles 9 and 11 of Directive 2000/31/EC.
(10) Member States shall not impose any further formal pre-contractual information requirements with regard to the fulfillment of the information obligations set out in this Directive.
Article 9
Right of withdrawal
(1) Unless one of the exceptions referred to in Article 16 applies, the consumer has a period of 14 days within which to conclude a distance or off-premises contract without giving any reasons and without paying any costs other than those specified in Article 13(2) and Article 14 may be revoked.
(2) Without prejudice to Article 10, the withdrawal period provided for in paragraph 1 of this Article ends
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For service contracts, 14 days from the day the contract was concluded, |
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b) |
for sales contracts, 14 days from the day on which the consumer or a third party designated by the consumer who is not the carrier comes into physical possession of the goods, or
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c) |
For contracts for the supply of water, gas or electricity, if they are not offered for sale in a limited volume or in a certain quantity, of district heating or of digital content that is not delivered on a physical medium, 14 days from the day the contract is concluded. |
(3) Member States shall not prohibit the contracting parties from fulfilling their contractual obligations during the withdrawal period. However, in the case of contracts concluded away from business premises, Member States may maintain national legislation which prohibits the trader from demanding and accepting payment from the consumer within a certain period of time after the conclusion of the contract.
Article 10
Failure to provide information about the right of withdrawal
(1) If the trader has not informed the consumer of his right of withdrawal in accordance with Article 6 paragraph 1 letter h, the withdrawal period expires 12 months after the expiry of the original withdrawal period in accordance with Article 9 paragraph 2.
(2) If the trader has provided the consumer with the information referred to in paragraph 1 within 12 months of the day referred to in Article 9(2), the withdrawal period shall end 14 days after the day on which the consumer received this information.
Article 11
Exercise the right of withdrawal
(1) The consumer informs the entrepreneur of his decision to cancel the contract before the end of the cancellation period. For this purpose, the consumer can either
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use the model cancellation form in Appendix I Part B or |
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make an appropriate declaration in any other form which clearly states his decision to withdraw from the contract. |
Member States shall not lay down any formal requirements for the model withdrawal form other than those set out in Part B of Annex I.
(2) The withdrawal period referred to in Article 9 paragraph 2 and Article 10 is met if the consumer sends the notification of the exercise of the right of withdrawal before the end of the withdrawal period.
(3) In addition to the options mentioned in paragraph 1, the entrepreneur may also give the consumer the choice to electronically fill out either the model cancellation form in Annex I, Part B or a corresponding clear declaration in any other form on the entrepreneur's website and send it off. In these cases, the entrepreneur must immediately send the consumer confirmation of receipt of such a revocation on a durable medium.
(4) The burden of proof for exercising the right of withdrawal under this article lies with the consumer.
Article 12
Effects of revocation
The obligations of the contractual parties end with the exercise of the right of withdrawal
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to fulfill the distance selling or off-premises contract or |
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to conclude the distance selling or off-premises contract, provided the consumer has made an offer to do so. |
Article 13
Obligations of the entrepreneur in the event of cancellation
(1) The entrepreneur must repay all payments received from the consumer, including delivery costs, if applicable, immediately and in any case no later than 14 days from the day on which he informs of the consumer's decision in accordance with Article 11 will revoke the contract.
The trader shall make the repayment in accordance with the first subparagraph using the same means of payment used by the consumer in the original transaction, unless expressly agreed otherwise with the consumer and provided that the consumer incurs losses as a result of such There are no repayment costs.
(2) Without prejudice to paragraph 1, the entrepreneur is not obliged to reimburse additional costs if the consumer has expressly chosen a type of delivery other than the cheapest standard delivery offered by the entrepreneur.
(3) In the case of sales contracts, the entrepreneur can refuse repayment until he has received the goods back or until the consumer has provided proof that he has sent the goods back, whichever is the earlier, unless , the entrepreneur offered to collect the goods himself.
Article 14
Duties of the consumer in the event of cancellation
(1) The consumer must deliver the goods to the entrepreneur or one of his agents without undue delay and in any case no later than 14 days from the day on which he notified the entrepreneur of his decision to withdraw from the contract in accordance with Article 11 To return or hand over the goods to a person authorized to receive the goods, unless the entrepreneur has offered to collect the goods himself. The deadline is met if the consumer sends the goods before the deadline of 14 days has expired.
The consumer only has to bear the direct costs of returning the goods, unless the entrepreneur has agreed to bear these costs or the entrepreneur has failed to inform the consumer that he will bear these costs has to wear.
In the case of contracts concluded off-premises, where the goods have been delivered to the consumer's home at the time of conclusion of the contract, the entrepreneur will collect the goods at his own expense if the goods are of such a nature that they cannot normally be delivered by delivery Post can be returned.
(2) The consumer is only liable for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary to check the nature, properties and functionality of the goods. In no event shall the consumer be liable for any loss in value of the goods if he has not been informed by the trader of his right of withdrawal in accordance with Article 6(1)(h).
(3) If a consumer exercises the right of withdrawal after making a request in accordance with Article 7 paragraph 3 or Article 8 paragraph 8, he shall pay to the trader an amount proportional to what had been paid up to that point in which the consumer informs the entrepreneur of the exercise of the right of withdrawal, compared to the total scope of the contractually agreed services. The pro rata amount that the consumer has to pay to the entrepreneur is calculated on the basis of the contractually agreed total price. If the total price is excessive, the pro rata amount will be calculated based on the market value of the service provided.
(4) The consumer is not responsible for:
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a) |
Services, the supply of water, gas or electricity, if not offered for sale in a limited volume or quantity, or of district heating, provided in whole or in part during the withdrawal period, if
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b) |
the full or partial provision of digital content that is not delivered on a physical medium, if
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(5) Except as otherwise provided in Article 13(2) and this Article, the consumer may not be held liable for exercising his or her right of withdrawal.
Article 15
Effects of exercising the right of withdrawal on accessory contracts
(1) Without prejudice to Article 15 of Directive 2008/48/EC of the European Parliament and of the Council of 23. April 2008 on consumer credit contracts (20), where the consumer exercises his right to withdraw from a distance or off-premises contract in accordance with Articles 9 to 14 of this Directive, all ancillary ones are also included Contracts shall be automatically terminated without any costs being incurred by the consumer, other than those provided for in Articles 13(2) and 14 of this Directive.
(2) Member States shall determine the details regarding the termination of these contracts.
08.11.2022
Official Journal of the European Union
L304/64
DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
dated 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
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION —
based on the Treaty on the Functioning of the European Union, in particular Article 114,
on the proposal of the European Commission,
according to the opinion of the European Economic and Social Committee (1),
according to the opinion of the Committee of the Regions (2),
according to the ordinary legislative procedure (3),
Considering the following reasons:
1) In Council Directive 85/577/EEC of 20 December 1985 on consumer protection in relation to contracts concluded away from business premises (4) and Directive 97 /7/EC of the European Parliament and of the Council of May 20, 1997 on consumer protection in connection with the conclusion of distance contracts (5) a number of contractual rights of consumers are enshrined.
(2) These guidelines have been reviewed in the light of the experience gained with a view to whether the existing legislation can be simplified and updated by eliminating inconsistencies and regulatory gaps. This review has shown that it makes sense to replace the two directives mentioned by a single directive. Therefore, this Directive should lay down general rules for the common aspects of distance and off-premises contracts; this should abandon the minimum harmonization approach underlying the older directives, while still allowing Member States to maintain or introduce national legislation in relation to certain aspects.
3) Articles 169(1) and 169(2)(a) of the Treaty on The Functioning of the European Union (TFEU) provide that the Union shall contribute to ensuring a high level of consumer protection through measures adopted in accordance with Article 114.
4) According to Article 26(2) TFEU, the internal market includes an area without Internal borders in which the free movement of goods and services and freedom of establishment are guaranteed. The harmonization of certain aspects of consumer contracts concluded at a distance and away from business premises is essential if a genuine internal market for consumers is to be promoted, ensuring the best possible balance between a high level of consumer protection and the competitiveness of businesses, while respecting the principle of subsidiarity.
5) The cross-border potential of mail order, which should be one of the main tangible outcomes of the internal market, is not being fully exploited. Compared to the significant growth recorded in domestic mail order in recent years, there has been little growth in cross-border mail order. This discrepancy is particularly evident in online trading, where there is great potential for further growth.The cross-border potential of off-premises contracts (direct selling) is limited by a number of factors, including different Member States' consumer protection legislation to which businesses must comply. In comparison e.gDespite the growth of domestic direct sales in recent years, particularly in the service sector (e.g. utilities), the number of consumers using such channels to make cross-border purchases has not increased. Given the increased business opportunities available in many Member States, small and medium-sized enterprises (including individual entrepreneurs) or representatives of companies active in direct selling should be more willing to seek new business opportunities in other Member States, particularly in cross-border regions to keep an eye out. Therefore, full harmonization of consumer information and the right of withdrawal in distance or off-premises contracts should contribute to a high level of consumer protection and to the better functioning of the internal market for business-to-consumer transactions.
6) Certain differences create significant ones Obstacles to the internal market affecting entrepreneurs and consumers. Because of these differences, entrepreneurs who want to offer their goods or services across borders face higher compliance costs. The undue legal fragmentation also undermines consumer confidence in the internal market.
7) The full harmonization of some key aspects of the relevant regulations should significantly increase legal certainty for consumers and traders. Both consumers and traders should be able to rely on a uniform legal framework, based on clearly defined legal concepts, that regulates certain aspects of contracts between businesses and consumers across the Union. Such harmonization should remove the obstacles arising from legal fragmentation and complete the internal market in this area. The obstacles in question can only be removed through the introduction of uniform legislation at Union level. In addition, consumers should benefit from a high, uniform level of consumer protection across the Union.
8) The aspects of the regulations to be harmonized should only concern contracts between traders and consumers. Therefore, this Directive should be without prejudice to national law relating to employment contracts and contracts in the field of inheritance, family and company law.
9) This Directive contains provisions on information required in distance contracts, off-premises contracts and contracts other than distance contracts and contracts concluded off-premises. This Directive also regulates the right of withdrawal from distance or off-premises contracts and harmonizes certain rules relating to the performance and some other aspects of contracts between businesses and consumers.
10) This Directive should replace Regulation ( EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (6) shall remain unaffected.
11) This Directive should be without prejudice to Union rules on specific areas, such as human medicines, medical devices, data protection in electronic communications, patients' rights in cross-border healthcare, food labeling and the internal market in electricity and natural gas.
12) Those provided for in this Directive Information obligations should comply with the information obligations under Directive 2006/123/EC of the European Parliament and of the Council of 12.December 2006 on services in the internal market (7) and under the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (“Electronic Commerce Directive”) (8) add. Member States should continue to have the possibility to impose additional information requirements on service providers established in their territory.
13) Member States should continue to have the power to apply this Directive to areas outside its scope, in accordance with Union law. Member States may therefore maintain or introduce national legislation equivalent to the provisions or some of the provisions of this Directive for contracts which do not fall within the scope of this Directive. For example, Member States may decide to extend the application of this Directive to legal or natural persons who are not 'consumers' within the meaning of this Directive, such as non-governmental organisations, start-ups or small and medium-sized enterprises. Likewise, Member States may apply the provisions of this Directive to contracts which are not 'distance contracts' within the meaning of this Directive, for example because they are not concluded within the framework of a distribution or service system organized for distance selling. In addition, Member States may also maintain or introduce national legislation on matters not specifically addressed in this Directive, such as additional rules on sales contracts, including with regard to the supply of goods or requirements relating to the provision of information during the term of a contract .
14) This Directive should be without prejudice to domestic contract law to the extent that aspects of contract law are not governed by this Directive. Therefore, this Directive should have no effect on national legislation concerning, for example, the conclusion or validity of contracts (for example in the event of a lack of agreement). Likewise, this Directive should be without prejudice to national legislation relating to general contractual remedies, rules of general commercial law (such as rules on excessive or extortionate pricing) and rules on unconscionable legal transactions.
15) This Directive should establish the language requirements for Consumer contracts are not harmonized. Member States may therefore maintain or introduce language requirements relating to contractual information and contractual clauses in their national law.
16) This Directive should reflect national law on legal representation, such as: B. the regulations regarding the person who acts in the name of the entrepreneur or on his behalf (for example a commercial agent or a trustee) remain unaffected. Member States should remain responsible in this area. This Directive should apply to all operators in the public and private sectors.
17) The definition of consumer should include natural persons acting outside their trade, business, craft or profession. However, if the contract is concluded partly for commercial purposes and partly for non-commercial purposes (dual purpose contracts) and the commercial purpose is not predominant in the overall context of the contract, that person should also be considered a consumer.
18) This Directive does not affect the right of Member States to determine, in accordance with Union law, which services they consider to be of general economic interest, such services being taken into accountg of State aid rules should be organized and financed and what specific obligations they should be subject to.
19) “Digital content” means data produced and made available in digital form, such as computer programs, applications (apps), games , music, videos or texts, whether accessed by downloading or downloading in real time (streaming), from a physical medium or otherwise. Contracts for the supply of digital content should fall within the scope of this Directive. If digital content is provided on a physical medium such as a CD or DVD, it should be considered as goods within the meaning of this Directive. Comparable to contracts for the supply of water, gas or electricity, if they are not offered for sale in a limited volume or quantity, or for the supply of district heating, contracts for digital content should not be provided on a physical medium shall not be considered as sales contracts or service contracts for the purposes of this Policy. For such contracts, the consumer should have a right of withdrawal, unless he has agreed to the start of performance of the contract during the withdrawal period and has acknowledged that he will lose his right of withdrawal as a result. In addition to the general information obligations, the entrepreneur should inform the consumer about the functionality and - where essential - the interoperability of digital content. The concept of functionality should refer to how digital content can be used, for example to track consumer behavior; it should also refer to the presence or absence of technical limitations such as protection through digital rights management or regional coding. The term substantial interoperability describes the information regarding the standard environment of hardware and software with which the digital content is compatible, such as the operating system, the required version and certain characteristics of the hardware. The Commission should examine the extent to which further harmonization of rules is necessary for digital content and, if necessary, put forward a corresponding legislative proposal.
20) The definition of distance contracts should cover all cases in which a contract between a trader and a consumer is concluded under a sales or service provision system organized for remote delivery, whereby only one or more means of distance communication is/are used up to and including the time of conclusion of the contract (e.g. ordering by post, internet, telephone or fax). This definition should also cover situations where the consumer visits the premises solely for the purpose of obtaining information about the goods or services and then negotiates and concludes the contract remotely. In contrast, a contract negotiated at an entrepreneur's premises and ultimately concluded via a means of distance communication should not be considered a distance contract. Likewise, a contract that is initiated via a means of distance communication and ultimately concluded at the entrepreneur's business premises should not be considered a distance contract. Likewise, the concept of a distance contract should not include reservations made by a consumer via a means of distance communication for the service of a professional, such as in the case of a telephone call from a consumer to arrange an appointment with a hairdresser.The concept of a sales or distribution organization organized for distance deliveryService delivery system should cover distance selling or service systems offered by a third party used by traders, such as an online platform. However, the term should not cover cases where websites only provide information about the entrepreneur, his goods and/or services and his contact details.
21) A contract concluded off-premises should be defined as a contract which is concluded at the same time as physical Presence of the entrepreneur and the consumer in a place that is not part of the entrepreneur's business premises, for example in the consumer's home or workplace. Outside business premises, the consumer may be under psychological pressure or be exposed to an element of surprise, regardless of whether the consumer caused the trader's visit or not. The definition of off-premises contracts should also include situations where the consumer is addressed personally and individually outside of business premises, but the contract is concluded immediately afterwards at the trader's business premises or via means of distance communication. The definition of off-premises contracts should not cover situations where the trader first comes to the consumer's home to simply take measurements or make an estimate without any obligation on the part of the consumer, and the contract is then only concluded at a later date The entrepreneur's business premises or by means of distance communication is concluded on the basis of the entrepreneur's estimate. In these cases, it cannot be assumed that the contract was concluded immediately after the entrepreneur addressed the consumer if the consumer had time to think about the entrepreneur's estimate before concluding the contract. Purchases made during an outing organized by the entrepreneur, during which the purchased products are promoted and offered for sale, should be considered as contracts concluded away from business premises.
22) All types of premises (such as shops, stalls or trucks) should be considered business premises. apply where the entrepreneur permanently or habitually carries out his trade. Market and exhibition stands should be treated as business premises if they meet this condition. Sales premises where the entrepreneur carries out his activity seasonally, for example during the tourist season at a ski resort or seaside resort, should be considered business premises if the entrepreneur usually carries out his activity on these premises. Places accessible to the public such as streets, shopping centers, beaches, sports facilities and public transport, which the entrepreneur exceptionally uses for his business activities, as well as private homes or workplaces should not be considered business premises. The business premises of a person acting in the name or on behalf of the trader in accordance with this Directive should be considered business premises for the purposes of this Directive.
23) Durable storage media should enable the consumer to store information for as long as is necessary for the consumer Protection of his interests in relationships with the entrepreneur is necessary. These durable data carriers should include, in particular, paper, USB sticks, CD-ROMs, DVDs, memory cards or computer hard drives as well as emails.
24) At a public auction, entrepreneurs and consumers are present in person or are given the opportunity to to be present with her in person.The goods or services are offered to the consumer by the trader through a tendering procedure permitted by law in some Member Statesns publicly offered for sale. The person who wins the contract is obliged to purchase the goods or services. The use of online platforms available to consumers and traders for auction purposes should not be considered a public auction within the meaning of this Directive.
25) Contracts related to district heating should fall within the scope of this Directive, similarly to contracts relating to the delivery of water, gas or electricity. District heating is heat generated in a central plant, including in the form of steam or hot water, which is supplied via a pipeline and distribution network to a large number of heat consumers for heating purposes.
26) Contracts for the transfer of real estate or rights to real estate or the creation or acquisition of such properties or rights, contracts for the construction of new buildings or for significant alterations to existing buildings, as well as for the rental of living space, are already the subject of a number of specific national laws. These contracts include, for example, the sale of properties that are yet to be developed and the rental purchase. The provisions contained in this Directive are not applicable to these contracts, which should therefore be excluded from the scope of this Directive. Significant renovation work is one that is comparable to the construction of a new building, for example construction work in which only the facade of an old building is retained. Service contracts, in particular in connection with the construction of extensions to buildings (e.g. the addition of a garage or a winter garden) and in connection with the repair and renovation of buildings that do not represent significant renovation work, as well as contracts for services from real estate agents and the rental of premises for non-residential purposes should be covered by this Directive.
27) Transportation services include the carriage of passengers and the carriage of goods. The transport of passengers should be excluded from the scope of this Directive because it is already regulated under other Union legislation or, as regards public transport and taxis, at national level. However, the rules set out in this Directive to protect consumers against excessive charges for the use of certain means of payment or against hidden costs should also apply to passenger transport contracts. As regards the transport of goods and the rental of motor vehicles, in so far as these constitute services, consumers should be protected by this Directive, with the exception of the right of withdrawal.
28) In order to avoid administrative burdens for traders, Member States may decide not to adopt this Directive to apply to cases where goods or services of low value are sold off-premises. The threshold amount should be set so low that only transactions of minor importance are excluded. Member States should be allowed to set this threshold in their national law; however, it may not exceed EUR 50. If two or more contracts, which are related in terms of their subject matter, are concluded by the consumer at the same time, their total costs should determine this threshold.
29) Social services have fundamentally different characteristics, which are reflected in sector-specific legislation, partly at Union level and partly at the national level.Social services include, on the one hand, services for particularly disadvantaged or low-income people as well as services for people and families who need help with routine activities and everyday activitiese and, on the other hand, services for all people who need help, support, protection or encouragement in a special phase of their life. Social services include, among others, services for children and young people, services to support families, single parents and the elderly, and services for migrants. Social services include both short-term and long-term care services, which are provided, for example, by home care services, as part of assisted living arrangements and in residential homes or facilities (“nursing homes”). Social services include not only state social services provided at the national, regional or local level by state-commissioned service providers or state-recognized aid organizations, but also social services provided by private providers. The provisions of this Directive do not apply to social services; these should therefore be excluded from the scope of this Directive.
30) Health care requires special regulations because of its technical complexity, its importance as a service of general interest and its extensive public funding. Healthcare is defined in Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the exercise of patients' rights in cross-border healthcare (9) as “health services “Provided by health professionals to patients in order to assess, maintain or restore their state of health, including the prescription, dispensing and provision of medicines and medical devices”. A health professional is defined in this Directive as a doctor, a general care nurse, a dentist, a midwife or a pharmacist within the meaning of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (10) or any other professional carrying out activities in the health sector that fall within a regulated profession within the meaning of Article 3(1)(a) of Directive 2005/36/ EC, or a person who is considered a health professional under the legislation of the Member State of treatment. The provisions of this policy are not applicable to healthcare; it should therefore be excluded from the scope of this Directive.
31) Gambling should be excluded from the scope of this Directive. Games of chance are games that require a monetary stake, including lotteries, casino games of chance and betting. Member States should be able to introduce other, including more stringent, consumer protection measures in relation to these activities.
32) Existing Union law on, inter alia, consumer financial services, package holidays and timeshare contracts contains numerous consumer protection provisions. Therefore, this Directive should not apply to contracts in these areas. As regards financial services, Member States should be encouraged, when creating new legislation in areas not regulated at Union level, to be inspired by the relevant existing Union legislation in this area, so as to ensure a level playing field for all consumers and all financial services contracts are.
33) The trader should be obliged to inform the consumer in advance of any commercial arrangements which lead to the consumer paying a deposit to the trader; This also includes modalities in which an amount is transferred to the credit or debit card of the consumer is blocked.
34) Before the consumer is bound by a distance or off-premises contract, by a contract other than a distance or off-premises contract or a corresponding contract offer, the entrepreneur should inform the consumer in clear terms and provide information in an understandable manner. When providing this information, the trader should take into account the special needs of consumers who are particularly vulnerable due to their mental or physical disability, psychological instability, age or gullibility in a way that is reasonably apparent to the trader. However, taking into account these specific needs should not lead to different levels of consumer protection.
35) The information to be provided to the consumer by the trader should be mandatory and should not be changed. Nevertheless, the contracting parties should be able to conclude an express agreement to change the content of the subsequently concluded contract, for example with regard to the delivery conditions.
36) In the case of distance selling contracts, the information obligations should be adapted in such a way that the technical limitations to which certain media are subject can be taken into account, such as the limited number of characters on certain mobile phone displays or the time frame for television commercials. In these cases, the trader should adhere to minimum information requirements and refer the consumer to another source of information, for example by providing a toll-free telephone number or a hypertext link to a trader's website where the relevant information is immediately available and easily accessible . The obligation to provide information that the consumer has to bear the costs of returning the goods if the goods cannot be returned by normal postal service due to their nature is deemed to have been fulfilled if the entrepreneur uses a carrier (e.g he commissioned the delivery of the goods) and states a price for the return of the goods. In cases where the costs of returning the goods cannot reasonably be calculated in advance by the entrepreneur, for example because the entrepreneur does not offer to organize the return of the goods itself, the entrepreneur should declare that costs must be paid and these Costs may be high, including a reasonable estimate of the maximum cost, which could be based on the cost of delivery to the consumer.
37) As the mail order consumer cannot see the goods before entering into the contract, he should be given a right of withdrawal to be entitled. For the same reason, the consumer should be allowed to examine and examine the goods he has purchased in order to determine the nature, characteristics and functioning of the goods. For contracts concluded off-premises, the consumer should have the right to withdraw due to the possible element of surprise and/or psychological pressure. The withdrawal of the contract should terminate the obligation of the parties to perform the contract.
38) E-commerce websites should clearly and conspicuously indicate, at the latest at the start of the ordering process, whether there are delivery restrictions and which payment methods are accepted.
39) It is important to ensure that, for distance contracts concluded via websites, consumers are able to fully read and understand the main elements of the contract before placing their order. For this purpose, this should Guideline ensures that these contractual components are displayed in the immediate vicinity of the confirmation required to submit the order. It is also important, in situations of this type, to ensure that consumers recognize the point at which they enter into a payment obligation to the trader. For this reason, the attention of consumers should be drawn to the fact, through unequivocal wording, that the placing of the order entails a payment obligation to the trader.
40) The fact that the withdrawal periods currently vary both between different Member States and Different lengths exist between distance selling contracts and off-premises contracts, causing legal uncertainty and costs. The cancellation period should therefore be the same for all distance selling and off-premises contracts. For service contracts, the cancellation period should end 14 days after the contract is concluded. In the case of sales contracts, the withdrawal period should end 14 days after the day on which the consumer or a third party designated by him, other than the carrier, comes into possession of the goods. In addition, the consumer should be able to exercise the right of withdrawal before the goods are physically received. If the consumer orders several goods in one order but they are then delivered separately, the cancellation period should end 14 days after the day on which the consumer comes into possession of the last goods delivered. If goods are delivered in several lots or parts, the withdrawal period should end 14 days after the day on which the consumer takes possession of the last lot or part.
41) In order to ensure legal certainty, it is advisable to: Council Regulation (EEC, Euratom) No. 1182/71 of 3 June 1971 laying down the rules for the time limits, dates and dates (11) for the calculation of the amounts specified in this the deadlines specified in the Directive apply. Therefore, all deadlines set out in this Directive should be understood as expressed in calendar days. If the time at which an event occurs or an action is taken is decisive for the beginning of a period measured in days, the day on which the event or action falls should not be taken into account when calculating this period.
42 ) The provisions on the right of withdrawal should be without prejudice to the laws, regulations and administrative provisions of the Member States relating to the termination or invalidity of a contract or the ability of a consumer to fulfill his contractual obligations before the deadline set in the contract.
43) If the If the consumer is not adequately informed by the entrepreneur before concluding a distance contract or a contract concluded outside of business premises, the cancellation period should be extended. However, in order to ensure legal certainty regarding the duration of the withdrawal period, a limitation of the period to twelve months should be introduced.
44) Differences in the way in which the right of withdrawal is exercised in the Member States have resulted in costs for entrepreneurs active in cross-border trade . The introduction of a harmonized model withdrawal form for consumers to use should simplify the withdrawal process and ensure legal certainty. For these reasons, Member States should not impose any further requirements on the visual design of the revocation - for example with regard to font size - beyond the uniform model form throughout the Union.However, the consumer should still be free to withdraw from the contract in his own words, provided that his declaration addressed to the trader confirming his withdrawalThe decision is clear. This requirement could be fulfilled by a letter, a telephone call or by returning the goods accompanied by a clear explanation; However, the burden of proof that the withdrawal took place within the time limits set out in the Directive should lie with the consumer. For this reason, it is in the consumer's interest to use a durable medium to communicate the revocation to the entrepreneur.
45) Since experience shows that many consumers and entrepreneurs prefer to communicate via the entrepreneur's website, the latter should have the opportunity to to provide consumers with a web model form for withdrawal. In this case, the entrepreneur should immediately confirm receipt of the withdrawal, for example by email.
46) If the consumer withdraws from the contract, the entrepreneur should reimburse all payments received from the consumer; This also includes payments for the entrepreneur's expenses in connection with the delivery of the goods to the consumer. The refund should not be in the form of a voucher unless the consumer used or expressly accepted vouchers for the original transaction. If the consumer has expressly chosen a specific type of delivery (for example express delivery within 24 hours), even though the trader had offered a normal and generally acceptable type of delivery that would have entailed lower delivery costs, the consumer should cover the difference in costs between the two Types of delivery bear.
47) Some consumers exercise their right of withdrawal after they have used the goods to a greater extent than is necessary to determine their nature, characteristics and functioning. In this case, the consumer should not lose the right of withdrawal, but should be liable for any loss in value of the goods. If he wants to determine the nature, properties and functionality of the goods, the consumer should only handle and inspect them as he would be allowed to do in a shop. For example, the consumer should only be allowed to try on a piece of clothing but not wear it. The consumer should therefore handle and inspect the goods with due care during the withdrawal period. The consumer's obligations in the event of withdrawal should not prevent the consumer from exercising his right of withdrawal.
48) The consumer should be obliged to return the goods no later than 14 days after the day on which he informed the trader of his withdrawal . If the trader or consumer fails to fulfill the obligations relating to the exercise of the right of withdrawal, sanctions laid down in national rules in accordance with this Directive and contract law provisions should apply.
49) It should apply to both distance contracts and Certain exceptions to the right of withdrawal apply to contracts concluded outside of business premises. A right of withdrawal could, for example, be inappropriate given the nature of certain goods or services. This applies, for example, to contracts for wine, which is only delivered long after a contract of a speculative nature has been concluded; The value of the wine depends on the fluctuations in market prices (“vin en primeur”).The right of withdrawal should not apply to goods that are made to customer specifications or are clearly tailored to personal needs, such as custom-made curtains, or, for example, to the supply of fuel which, due to its nature, is inextricably linked to other goods after delivery. Find application. The granting eA right of withdrawal for the consumer could also be inappropriate in the case of certain services where the conclusion of the contract involves the provision of capacities that the entrepreneur may no longer be able to use otherwise if the right of withdrawal is exercised. This would be the case, for example, for reservations in hotels, for holiday homes or cultural or sporting events.
50) On the one hand, the consumer should be able to exercise his right of withdrawal even if he has requested the provision of services before the end of the withdrawal period. On the other hand, the entrepreneur should be able to be sure that he will be paid appropriately for the service he provides if the consumer exercises his right of withdrawal. The prorated amount should be calculated based on the contractually agreed total price; however, if the consumer proves that the total price itself is disproportionate, the amount to be paid will be calculated on the basis of the market value of the service provided. The market value should be determined by comparing the price of an equivalent service provided by other operators at the time of the conclusion of the contract. If the consumer wishes the service to be provided before the end of the cancellation period, he should request this expressly and, in the case of contracts concluded off-premises, on a durable medium. Likewise, the trader should inform the consumer on a durable medium of any obligation to pay the costs in proportion to the service already provided. For contracts involving both goods and services, the rules of this Directive on the return of goods should apply to the goods and the rules on compensation for services should apply to the goods.
51) The main difficulties for consumers and One of the main sources of conflict with entrepreneurs relates to the delivery of goods, for example when goods are lost or damaged in transit or are delivered late or incomplete. It is therefore appropriate to clarify and harmonize national rules on when delivery should take place. The place and modalities of delivery and the rules for determining the conditions and timing of transfer of ownership of the goods should remain subject to national law and should therefore not be affected by this Directive. The delivery rules contained in this Directive should include the possibility for the consumer to allow a third party to obtain possession or control of the goods on his or her behalf. The consumer should be considered to have control over the goods if he or a third party indicated by him has access to the goods for the purpose of their use as owner or the possibility of their resale (for example if he has received the keys or is in possession of the ownership documents).
52) In sales contracts, the delivery of goods can take place in different ways and either immediately or at a later date. If the contracting parties have not agreed on a specific delivery date, the entrepreneur should deliver the goods as soon as possible and in any case no later than 30 days after conclusion of the contract. The rules on late delivery should also take into account that goods which must be manufactured or purchased specifically for the consumer cannot be used by the trader for other purposes without significant loss.Therefore, this Directive should provide for a provision allowing the trader, in certain circumstances, an additional reasonable period of timet is granted. If the trader has not delivered the goods within the period agreed with the consumer, the consumer, before he can withdraw from the contract, should request the trader to make the delivery within a reasonable additional period and he should have the right to withdraw from the contract if the entrepreneur does not deliver the goods within this additional period. However, this rule should not apply if the trader has made an unequivocal statement refusing to deliver the goods. It should also not apply where there are certain circumstances in which the delivery time is essential, such as in the case of a wedding dress that should be delivered before the wedding. It should also not apply in circumstances where the consumer informs the trader that delivery on a certain date is essential. For this purpose, the Consumer may use the contact information provided in accordance with this Policy. In these special cases, the consumer should be entitled to withdraw from the contract immediately after the originally agreed delivery period has expired if the entrepreneur has not delivered the goods on time. This Directive should not affect national provisions on the way in which the consumer should communicate to the trader his wish to withdraw from the contract.
53) In addition to the consumer's right to withdraw from the contract if the trader fulfills his obligation to deliver of the goods in accordance with this Directive, the consumer may seek other remedies in accordance with applicable national law, such as allowing the trader an additional delivery period, enforcing performance of the contract, withholding payments and claiming damages.
54) Under Article 52 Paragraph 3 of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market (12), Member States should be able to: the need to stimulate competition and promote the use of efficient means of payment, to prohibit or restrict the entrepreneur's right to charge the consumer. In any case, traders should be prohibited from demanding fees from consumers that exceed the costs incurred by the trader for using a particular means of payment.
55) If the goods are sent by the trader to the consumer, this can occur in the case In the event of loss or damage, disputes arise as to the timing of the transfer of risk. Therefore, this Directive should provide that the consumer is protected against the risk of loss or damage to the goods before he has taken possession of the goods. The consumer should be protected during transport organized or carried out by the trader, even if the consumer has chosen a specific delivery method from a range of options offered by the trader. However, this provision should not apply to contracts where it is for the consumer to collect the goods himself or to commission a carrier to deliver them. As regards the time of transfer of risk, a consumer should be deemed to have come into possession of the goods when he or she receives them.
56) Persons or organizations having a legitimate interest under national law In order to protect the contractual rights of consumers, consumers should be given the right to have recourse to a court or an administrative authority that can decide on complaints or take appropriate legal action.
57) It is necessary that Member States impose sanctions for violations of this RicEstablish a policy and ensure its enforcement. Sanctions should be effective, proportionate and dissuasive.
58) Consumers should not be deprived of the protection afforded by this Directive. If the law of a third country is applicable to the contract, the assessment of whether the consumer continues to be protected by this Directive should be governed by Regulation (EC) No 593/2008.
59) The Commission should Consultation with Member States and stakeholders will examine how best to ensure that all consumers are made aware of their rights at the point of sale.
60) As Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 on unfair commercial practices in intra-market business-to-consumer transactions (Unfair Commercial Practices Directive) (13) the supply of goods or services not ordered by the consumer , but does not provide for a contractual remedy in this case, it is now necessary to provide in this Directive as a contractual remedy that the consumer is exempt from the obligation to provide consideration for such unsolicited supplies or services.
61) The Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 on the processing of personal data and the protection of privacy in electronic communications (electronic communications directive) (14) already contains a regulation for unsolicited messages and provides for a high level of consumer protection. There is therefore no need for the corresponding provisions in Directive 97/7/EC.
62) It is appropriate for the Commission to review this Directive in the event that obstacles to the internal market are identified. In its review, the Commission should pay particular attention to the possibilities given to Member States to maintain or introduce specific national provisions, including in certain areas of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts ( 15) and Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and guarantees for consumer goods (16
63) Directives 93/13/EEC and 1999/44/EC should be amended to require Member States to inform the Commission of the adoption of specific national rules in certain areas.
64) Directives 85/577/EEC and 97/7/EC should be repealed.
65) Since the objective of this Directive, to contribute to the proper functioning of the internal market by achieving a high level of consumer protection, cannot be sufficiently achieved at Member State level and can therefore be better achieved at Union level , the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
66) This directive is consistent with fundamental rights and principles, in particular:especial ones recognized by the Charter of Fundamental Rights of the European Union.
67) According to point 34 of the Interinstitutional Agreement on Better Law-Making (17), Member States are invited to ensure their own For the purposes and in the interests of the Union, to draw up and publish tables showing, as far as possible, the correspondence between this Directive and the transposition measures
HAVE ADOPTED THE FOLLOWING POLICY:
CHAPTER I
SUBJECT, DEFINITIONS AND SCOPE
Article 1
Item
The purpose of this Directive is to achieve a high level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States relating to contracts concluded between consumers and traders, thereby contributing to the proper functioning of the internal market.
Article 2
Definitions
For the purposes of this policy, the terms
mean|
1. |
“Consumer” means any natural person who, in contracts covered by this Directive, acts for purposes outside his or her trade, business, craft or profession; |
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2. |
"entrepreneur" means any natural or legal person, whether public or private, acting in contracts covered by this Directive, either by themselves or through another person acting on their behalf or on behalf of them, for the purposes of: which can be attributed to their commercial, business, craft or professional activity; |
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3. |
“Goods” means movable tangible property other than items sold pursuant to foreclosure or other legal action; Water, gas and electricity are also considered goods within the meaning of this Directive if they are offered for sale in a limited volume or in a certain quantity; |
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4. |
“goods manufactured to consumer specifications” means goods that are not prefabricated and for the production of which an individual selection or decision by the consumer is decisive; |
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5. |
“sales contract” means any contract by which the trader transfers or agrees to transfer ownership of goods to the consumer and the consumer pays or agrees to pay the price therefor, including contracts relating to both goods and services ; |
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6. |
“Service contract” means any contract, which is not a sales contract, under which the entrepreneur provides or agrees to provide a service to the consumer and the consumer pays or agrees to pay the price for this; |
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7. |
“Distance selling contract” means any contract concluded between the entrepreneur and the consumer without the simultaneous physical presence of the entrepreneur and the consumer within the framework of a sales or distribution agreement organized for distance selling.Service system is concluded, whereby only one or more means of distance communication are used up to and including the time of conclusion of the contractrd/become; |
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8. |
“contract concluded away from business premises” means any contract between the entrepreneur and the consumer,
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9. |
“Business premises”
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10. |
“durable data carrier” means any medium that allows the consumer or the entrepreneur to store information addressed to him personally in such a way that he can subsequently view it for a period of time appropriate to the purposes of the information, and that is unchanged Allows playback of the stored information; |
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11. |
“digital content” means data that is produced and provided in digital form; |
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12. |
“Financial service” means any banking service as well as any service related to the granting of credit, insurance, pension provision for individuals, investment or payment; |
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13. |
"public auction" means a sales method in which the trader offers goods or services to consumers who are present in person at the auction or who are given the opportunity to do so, in a transparent procedure carried out by the auctioneer and based on competitive bids, in which the winning bidder is obliged to purchase the goods or services; |
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14. |
“Commercial guarantee” means any obligation given to the consumer by the entrepreneur or a manufacturer (guarantor) in addition to the legal guarantee, to pay the purchase priceto refund the goods or to replace or repair the goods or to provide services for them if they do not have the characteristics or do not meet the requirements other than freedom from defects as set out in the guarantee statement or in the relevant advertising as published at or before the conclusion of the contract was available, are described; |
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15. |
“accessory contract” means a contract by which the consumer purchases goods or services related to a distance contract or an off-premises contract and in which those goods or services are purchased by the entrepreneur or a third party on the basis of a Agreement between this third party and the entrepreneur is delivered or provided. |
Article 3
Scope
(1) This Policy applies, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer. It also applies to contracts for the supply of water, gas, electricity or district heating, including by public providers, provided that these goods are supplied on a contractual basis.
(2) If a provision of this Directive conflicts with a provision of another Union legal act regulating specific sectors, the provision of that other Union legal act shall take precedence and apply to those specific sectors.
(3) This policy does not apply to contracts
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a) |
on social services, including the provision and rental of social housing, childcare or support for permanently or temporarily vulnerable families or individuals, including long-term care; |
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b) |
on health services referred to in Article 3(a) of Directive 2011/24/EU, regardless of whether they are provided by a health care body; |
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c) |
on games of chance that require a monetary stake, including lotteries, casino games of chance and betting; |
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d) |
on financial services; |
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e) |
on the creation, acquisition or transfer of ownership or other rights to real estate; |
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f) |
about the construction of new buildings, significant renovation work on existing buildings or the rental of living space; |
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g) |
which fall within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel (18); |
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h) |
which falls within the scope of Directive 2008/122/EC of the European Parliament and of the Council of 14.January 2009 on consumer protection in relation to certain aspects of timeshare contracts, long-term holiday product contracts and resale and exchange contracts (19); |
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i) |
which, in accordance with the law of the Member States, are concluded before a public official who is legally obliged to be independent and impartial and who must ensure, through comprehensive legal information, that the consumer only enters into the contract on the basis of a thorough legal examination and with knowledge of its legal implications; |
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j) |
on the delivery of food, beverages or other household items for everyday use, which are delivered to the residence, place of stay or place of work of a consumer by an entrepreneur as part of frequent and regular trips; |
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k) |
on the transport of persons, with the exception of Article 8(2) and Articles 19 and 22; |
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l) |
which are closed using vending machines or automated business premises; |
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m) |
which are concluded with operators of telecommunications means for their use using public telephones or which are concluded for the use of a single telephone, Internet or fax connection established by a consumer. |
(4) Member States may decide not to apply this Directive to contracts concluded away from business premises where the consideration payable by the consumer does not exceed EUR 50 and not to maintain or introduce corresponding national provisions. Member States may set a lower threshold in their national legislation.
(5) This Directive is without prejudice to general domestic contract law, such as provisions relating to the validity, formation or effects of a contract, to the extent that aspects of general contract law are not governed by this Directive.
(6) This Directive does not prevent traders from offering consumers contractual terms and conditions that go beyond the protection provided for in this Directive.
Article 4
Degree of harmonization
Unless this Directive provides otherwise, Member States shall not maintain or introduce national legislation derogating from the provisions of this Directive; this also applies to more stringent or less stringent legislation ensuring a different level of consumer protection.
CHAPTER II
INFORMATION FOR CONSUMERS FOR CONTRACTS OTHER THAN DISTANCE CONTRACTS OR OFF-BUSINESS CONTRACTS
Article 5
Information obligations for contracts other than distance selling contracts or contracts concluded outside of business premises
(1) Before the consumer is bound by a contract other than a distance contract or a contract concluded off-premises or a corresponding contract offer, the entrepreneur shall inform the consumer in a clear and comprehensible manner of the following, unless this information is already available directly given the circumstances:
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a) |
the essential characteristics of the goods or services to the extent appropriate for the data carrier and the goods or services; |
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b) |
The identity of the entrepreneur, for example his trades name and the address of the place where he is established, as well as his telephone number; |
|
c) |
the total price of the goods or services, including all taxes and duties or, where the price cannot reasonably be calculated in advance due to the nature of the goods or services, the method of calculating the price and, if applicable, any additional freight, Delivery or shipping costs or, in cases where such costs cannot reasonably be calculated in advance, the fact that such additional costs may apply; |
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d) |
if applicable, the payment, delivery and service conditions, the date by which the entrepreneur has undertaken to deliver the goods or provide the service, as well as the entrepreneur's procedure for dealing with complaints; |
|
e) |
in addition to pointing out the existence of a statutory warranty for the goods, if applicable, the existence and conditions of after-sales services and commercial guarantees; |
|
f) |
where applicable, the duration of the contract or the conditions of termination of permanent contracts or automatically renewing contracts; |
|
g) |
where applicable, the functionality of digital content, including applicable technical protection measures for such content; |
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h) |
if necessary - where essential - the interoperability of digital content with hardware and software, insofar as this is known to the entrepreneur or should reasonably be known; |
(2) Paragraph 1 applies to contracts for the supply of water, gas or electricity even if they are not offered for sale in a limited volume or in a certain quantity, of district heating or of digital content that is not on be delivered on a physical data carrier.
(3) Member States are not obliged to apply paragraph 1 to contracts which concern everyday transactions and are immediately performed at the time of conclusion of the contract.
(4) Member States may introduce or maintain additional pre-contractual information requirements for contracts to which this Article applies.
CHAPTER III
INFORMATION FOR CONSUMERS AND RIGHT OF CANCELLATION FOR DISTANCE SELLING AND OFF-BUSINESS CONTRACTS
Article 6
Information obligations for distance selling and contracts concluded outside of business premises
(1) Before the consumer is bound by a distance contract or a contract concluded off-premises or a corresponding contract offer, the entrepreneur informs the consumer in a clear and understandable manner of the following:
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a) |
the essential characteristics of the goods or services, to the extent appropriate for the means of communication and the goods or services; |
|
b) |
the identity of the entrepreneur, for example his trade name; |
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c) |
the address of the place where the entrepreneur is established and, if applicable, his telephone number, fax number and email address so that the consumer can quickly contact him and communicate efficiently with him, as well as, where applicable, the address and identity of the entrepreneur on whose behalf he acts; |
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d) |
if different from the address indicated in point c, the business address of the trader and, if applicable, the business address of the trader on whose behalf he is acting, to which the consumer may address any complaint; |
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e) |
the total price of the goods or services, including all taxes and duties, or where the price cannot reasonably be calculated in advance due to the nature of the goods or services, the method of calculating the price and, if applicable, any additional freight, Delivery or shipping costs and any other costs, or where such costs cannot reasonably be calculated in advance, the fact that such additional costs may apply. In the case of a permanent contract or a subscription contract, the total price includes the total costs incurred per billing period. If fixed amounts are charged for such a contract, the total price also includes the total monthly costs.If the total cost cannot reasonably be calculated in advance, the method of price calculation must be specified; |
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f) |
the costs for the use of the long-distance communication technology used to conclude the contract, unless these are calculated according to the basic tariff; |
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g) |
the payment, delivery and service conditions, the date by which the entrepreneur undertakes to deliver the goods or provide the service and, if applicable, the entrepreneur's procedure for dealing with complaints; |
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h) |
If there is a right of withdrawal, the conditions, deadlines and procedures for exercising this right in accordance with Article 11(1) and the model withdrawal form set out in Part B of Annex I; |
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i) |
if applicable, a note that in the event of cancellation the consumer must bear the costs of returning the goods and, in the case of distance selling contracts, the costs of returning the goods if the goods cannot be returned by normal postal service due to their nature; |
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j) |
indication that if the consumer exercises the right of withdrawal after making a request in accordance with Article 7(3) or Article 8(8), the consumer is obliged to pay the trader an appropriate amount in accordance with Article 14(3); |
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k) |
in cases where there is no right of withdrawal in accordance with Article 16, an indication that the consumer does not have a right of withdrawal or, where appropriate, the circumstances in which the consumer loses his right of withdrawal; |
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l) |
reference to the existence of a statutory warranty right for the goods; |
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m) |
where applicable, reference to the existence and conditions of after-sales service, after-sales services and commercial guarantees; |
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n) |
where appropriate, reference to existing relevant codes of conduct in accordance with Article 2(f) of Directive 2005/29/EC and how copies can be obtained; |
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o) |
where applicable, the duration of the contract or the conditions of termination of permanent contracts or automatically renewing contracts; |
|
p) |
if applicable, the minimum duration of the obligations entered into by the consumer under the contract; |
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q) |
if applicable, reference to the fact that the entrepreneur may require the consumer to provide a deposit or other financial security, as well as their conditions; |
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r) |
where applicable, the functionality of digital content, including applicable technical protection measures for such content; |
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s) |
if necessary - where essential - the interoperability of digital content with hardware and software, insofar as this is known to the entrepreneur or could reasonably be expected to be known; |
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t) |
if applicable, the possibility of access to an out-of-court complaint and redress procedure to which the entrepreneur is subject and the conditions for this access. |
(2) Paragraph 1 applies to contracts for the supply of water, gas or electricity even if they are not offered for sale in a limited volume or in a certain quantity, of district heating or of digital content that is not on be delivered on a physical data carrier.
(3) In the event of a public auction, the relevant information from the auctioneer may be transmitted instead of the information referred to in paragraph 1 letters b, c and d.
(4) The information referred to in paragraph 1 letters h, i and j can be provided using the model cancellation policy in accordance with Annex I Part A. The entrepreneur's obligation to provide information pursuant to paragraph 1 letters h, i and j is fulfilled if the entrepreneur has correctly completed this information form and sent it to the consumer.
(5) The information referred to in paragraph 1 is an integral part of the distance contract or the contract concluded away from business premises and may not be changed unless the contracting parties expressly agree otherwise.
(6) If the entrepreneur has not complied with his obligation to provide information about the additional and other costs in accordance with paragraph 1 letter e or about the costs of returning the goods in accordance with paragraph 1 letter i, the consumer is responsible for the additional and other costs not to wear.
(7) Member States may impose language requirements relating to the contractual information in their national Recht maintained or introduced to ensure that this information is readily understood by the consumer.
(8) The information requirements set out in this Directive are in addition to the information requirements under Directive 2006/123/EC and Directive 2000/31/EC and do not prevent Member States from laying down additional information requirements in accordance with those Directives.
Without prejudice to the first subparagraph, in the event of a conflict between a provision of Directive 2006/123/EC or Directive 2000/31/EC concerning the content of the information and the manner in which the information is to be provided and a provision of this Directive the provisions of this Policy take precedence.
(9) The burden of proof for compliance with the information obligations stated in this chapter lies with the entrepreneur.
Article 7
Formal requirements for contracts concluded off-premises
(1) For contracts concluded away from business premises, the trader shall provide the information required by Article 6(1) to the consumer on paper or, if the consumer agrees, on another durable medium. This information must be readable and written in clear and understandable language.
(2) The entrepreneur shall provide the consumer with a copy of the signed contractual document or the confirmation of the concluded contract on paper or, if the consumer agrees, on another durable medium, which copy may also contain the confirmation of the previously expressly the declared consent and information of the consumer in accordance with Article 16(m).
(3) If a consumer wishes that the service or supply of water, gas or electricity, if not offered for sale in a limited volume or quantity, or of district heating, during the withdrawal period referred to in Article 9 paragraph 2 begins, the entrepreneur requests the consumer to declare a corresponding express request on a durable data medium.
(4) In the case of contracts concluded away from business premises, if the consumer has expressly requested the services of the entrepreneur to carry out repair or maintenance work, the entrepreneur and the consumer immediately fulfill their contractual obligations and the amount payable by the consumer If the fee does not exceed EUR 200, the following applies:
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a) |
The trader shall provide the consumer with the information referred to in Article 6(1)(b) and (c), as well as information on the amount of the price or the method of calculating the price, together with an estimate of the total costs on paper or, if the consumer agrees, on paper other permanent storage medium available. The trader shall provide the information referred to in Article 6(1)(a), (h) and (k), but may refrain from providing it on paper or another durable medium if the consumer expressly agrees to this. |
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b) |
The confirmation of the contract provided in accordance with paragraph 2 of this Article must contain the information referred to in Article 6, paragraph 1. |
Member States may decide not to apply this paragraph.
(5) Member States shall not establish any further formal pre-contractual information requirements with regard to the fulfillment of the information obligations set out in this Directive.
Article 8
Formal requirements for distance travelsentence contracts
(1) In the case of distance contracts, the entrepreneur shall provide the information required by Article 6(1) to the consumer in clear and understandable language in a manner adapted to the means of distance communication used or make this information available accordingly. If this information is provided on a durable medium, it must be readable.
(2) If a distance contract concluded electronically requires the consumer to pay, the trader shall clearly and prominently inform the consumer, immediately before the latter places his order, of the provisions referred to in Article 6 paragraph 1 letters a, e, o and p mentioned information.
The entrepreneur ensures that the consumer expressly confirms when ordering that the order is associated with a payment obligation. If the ordering process involves the activation of a button or a similar function, this button or corresponding function must be clearly legibly marked exclusively with the words “order with obligation to pay” or a corresponding clear wording that informs the consumer that the order entails an obligation to pay is associated with the entrepreneur. If the entrepreneur does not comply with this subparagraph, the consumer is not bound by the contract or order.
(3) On websites for electronic commerce, it will be clearly stated at the start of the ordering process at the latest whether there are delivery restrictions and which means of payment are accepted.
(4) If the contract is concluded using a means of distance communication on which only limited space or time is available to display the information, the entrepreneur must provide at least the pre-contractual information via the respective means of distance communication before the contract is concluded concerning the essential characteristics of the goods or services referred to in Article 6(1)(a), (b), (e), (h) and (o), the identity of the trader, the total price, the right of withdrawal, the duration of the contract and the conditions for termination of contracts of indefinite duration. The other information referred to in Article 6(1) shall be provided by the trader to the consumer in an appropriate manner in accordance with paragraph 1 of this Article.
(5) If the entrepreneur calls the consumer with a view to concluding a distance contract, he shall, without prejudice to paragraph 4, disclose at the beginning of the conversation with the consumer his identity and, if applicable, the identity of the person on whose behalf he is calling, as well Disclose the business purpose of the call.
(6) For distance contracts concluded by telephone, Member States may provide that the trader must confirm the offer to the consumer and the consumer is only bound once he has signed the offer or given his written consent. Member States may also provide that such confirmations must be made on a durable medium.
(7) The entrepreneur shall provide the consumer with confirmation of the concluded contract on a durable medium within a reasonable period of time after the conclusion of the distance contract, at the latest upon delivery of the goods or before the performance of the service begins.This confirmation contains:
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a) |
all the information referred to in Article 6(1), unless the trader has already provided this information to the consumer on a durable medium before the distance contract is concluded, and |
|
b) |
where applicable, confirmation of the consumer's prior express consent and knowledge in accordance with Article 16(m). |
(8) If a consumer wishes that the service or supply of water, gas or electricity, if not offered for sale in a limited volume or quantity, or of district heating, during the withdrawal period referred to in Article 9 paragraph 2 begins, the entrepreneur requests the consumer to declare a corresponding express request.
(9) This article does not affect the provisions on the conclusion of electronic contracts and orders in accordance with Articles 9 and 11 of Directive 2000/31/EC.
(10) Member States shall not establish any further formal pre-contractual information requirements with regard to the fulfillment of the information obligations set out in this Directive.
Article 9
Right of withdrawal
(1) Unless one of the exceptions referred to in Article 16 applies, the consumer has a period of 14 days within which to conclude a distance or off-premises contract without giving any reasons and without paying any costs other than those specified in Article 13 paragraph 2 and Article 14 may be revoked.
(2) Without prejudice to Article 10, the withdrawal period provided for in paragraph 1 of this Article ends
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a) |
For service contracts, 14 days from the day the contract was concluded, |
|
b) |
for sales contracts, 14 days from the day on which the consumer or a third party designated by the consumer who is not the carrier comes into physical possession of the goods, or
|
|
c) |
For contracts for the supply of water, gas or electricity, if they are not offered for sale in a limited volume or in a certain quantity, of district heating or of digital content that is not delivered on a physical medium, 14 days from the day the contract is concluded. |
(3) Member States shall not prohibit the contracting parties from fulfilling their contractual obligations during the withdrawal period.However, for contracts concluded away from business premises, Member States may maintain national legislation which prohibits the trader from demanding payment from the consumer within a certain period of time after the conclusion of the contract and receive.
Article 10
Failure to provide information about the right of withdrawal
(1) If the trader has not informed the consumer of his right of withdrawal in accordance with Article 6 paragraph 1 letter h, the withdrawal period expires 12 months after the expiry of the original withdrawal period in accordance with Article 9 paragraph 2.
(2) If the trader has provided the consumer with the information referred to in paragraph 1 within 12 months of the day referred to in Article 9(2), the withdrawal period shall end 14 days after the day on which the consumer received this information.
Article 11
Exercise the right of withdrawal
(1) The consumer informs the entrepreneur of his decision to cancel the contract before the end of the cancellation period. For this purpose, the consumer can either
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a) |
use the model cancellation form in Appendix I Part B or |
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b) |
make a corresponding declaration in any other form which clearly states his decision to withdraw from the contract. |
Member States shall not lay down any formal requirements for the model withdrawal form other than those set out in Part B of Annex I.
(2) The withdrawal period referred to in Article 9 paragraph 2 and Article 10 is met if the consumer sends the notification of the exercise of the right of withdrawal before the end of the withdrawal period.
(3) In addition to the options mentioned in paragraph 1, the entrepreneur may also give the consumer the choice to electronically fill out either the model cancellation form in Annex I, Part B or a corresponding clear declaration in any other form on the entrepreneur's website and send it off. In these cases, the entrepreneur must immediately send the consumer confirmation of receipt of such a revocation on a durable medium.
(4) The burden of proof for the exercise of the right of withdrawal under this article lies with the consumer.
Article 12
Effects of revocation
The obligations of the contractual parties end with the exercise of the right of withdrawal
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a) |
to fulfill the distance selling or off-premises contract or |
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b) |
to conclude the distance selling or off-premises contract, provided the consumer has made an offer to do so. |
Article 13
Obligations of the entrepreneur in the event of cancellation
(1) The entrepreneur must repay all payments received from the consumer, including delivery costs, if applicable, immediately and in any case no later than 14 days from the day on which he informs of the consumer's decision in accordance with Article 11 to revoke the contract.
The trader shall make the repayment in accordance with the first subparagraph using the same means of payment used by the consumer in the original transaction, unless expressly agreed otherwise with the consumer and provided that the consumer incurs losses as a result of such There are no repayment costs.
(2) Without prejudice to paragraph 1, the entrepreneur is not obliged to reimburse additional costs if the consumer has expressly chosen a type of delivery other than the cheapest standard delivery offered by the entrepreneur.
(3) In the case of sales contracts, the entrepreneur can make the repaymentng refuse until he has received the goods back or until the consumer has provided proof that he has sent the goods back, whichever is the earlier, unless the entrepreneur has offered to collect the goods himself.
Article 14
Duties of the consumer in the event of cancellation
(1) The consumer must deliver the goods to the entrepreneur or one of his agents without undue delay and in any case no later than 14 days from the day on which he notified the entrepreneur of his decision to withdraw from the contract in accordance with Article 11 To return or hand over the goods to a person authorized to receive the goods, unless the entrepreneur has offered to collect the goods himself. The deadline is met if the consumer sends the goods before the deadline of 14 days has expired.
The consumer only has to bear the direct costs of returning the goods, unless the entrepreneur has agreed to bear these costs or the entrepreneur has failed to inform the consumer that he will bear these costs has to carry.
In the case of contracts concluded off-premises, where the goods have been delivered to the consumer's home at the time of conclusion of the contract, the entrepreneur will collect the goods at his own expense if the goods are of such a nature that they cannot normally be delivered by delivery Post can be returned.
(2) The consumer is only liable for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary to check the nature, properties and functionality of the goods. In no event shall the consumer be liable for any loss in value of the goods if he has not been informed by the trader of his right of withdrawal in accordance with Article 6(1)(h).
(3) If a consumer exercises the right of withdrawal after making a request in accordance with Article 7 paragraph 3 or Article 8 paragraph 8, he shall pay to the trader an amount proportional to what had been paid up to that point in which the consumer informs the entrepreneur of the exercise of the right of withdrawal, compared to the total scope of the contractually agreed services. The pro rata amount that the consumer has to pay to the entrepreneur is calculated on the basis of the contractually agreed total price. If the total price is excessive, the pro rata amount will be calculated based on the market value of the service provided.
(4) The consumer is not responsible for:
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a) |
Services, the supply of water, gas or electricity, if not offered for sale in a limited volume or quantity, or of district heating, provided in whole or in part during the withdrawal period, if
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b) |
the full or partial provision of digital content that is not delivered on a physical medium, if
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(5) Except as otherwise provided in Article 13(2) and this article, the consumer may not be held liable for exercising his right of withdrawal.
Article 15
Effects of exercising the right of withdrawal on accessory contracts
(1) Without prejudice to Article 15 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on consumer credit agreements (20) if the consumer exercise its right to withdraw from a distance or off-premises contract in accordance with Articles 9 to 14 of this Directive, all ancillary contracts shall also be automatically terminated, without incurring any costs to the consumer, other than those provided for in Articles 13(2) and Articles 14 of this Directive are provided for.
(2) Member States shall determine the details regarding the termination of these contracts.
Article 16
Exceptions to the right of withdrawal
Member States shall not provide for the right of withdrawal in accordance with Articles 9 to 15 for distance contracts and contracts concluded off-premises if
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a) |
In the case of service contracts, the service has been fully provided if the entrepreneur began the provision with the consumer's prior express consent and his knowledge that he will lose his right of withdrawal if the entrepreneur has fully fulfilled the contract; |
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b) |
Goods or services are delivered, the price of which depends on fluctuations on the financial market, over which the entrepreneur has no influence and which may occur within the cancellation period; |
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c) |
Goods are delivered that are made to customer specifications or are clearly tailored to personal needs; |
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d) |
Goods are delivered that can spoil quickly or whose expiry date would quickly be exceeded; |
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e) |
Sealed goods are delivered which are not suitable for return for health protection or hygiene reasons and whose seal has been removed after delivery; |
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f) |
Goods are delivered which, due to their nature, were inseparably mixed with other goods after delivery; |
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g) |
alcoholic beverages are delivered, the price of which was agreed upon when concluding the purchase contract, but whose delivery can only take place after 30 days and whose current value depends on fluctuations in the market over which the entrepreneur has no influence; |
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h) |
these are contracts where the consumer has expressly requested the entrepreneur to visit in order to carry out urgent repair or maintenance work; If, during such a visit, the entrepreneur provides additional services that the consumer has not expressly requested, or if he supplies goods that are not necessarily required as spare parts for maintenance or repair, the consumer has a right of withdrawal in relation to these additional services or goods to; |
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i) |
Audio or video recordings or computer software were delivered in a sealed package and the seal was removed after delivery; |
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j) |
Newspapers, magazines or magazines are delivered, with the exception of subscription contracts for the delivery of such publications; |
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k) |
Contracts are concluded at a public auction; |
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l) |
Services in the areas of accommodation for purposes other than residential purposes, transport of goods, car rental, supply of food and beverages and services related to leisure activities are provided and the contract provides for a specific date or period for the provision; |
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m) |
digital content is delivered that is not delivered on a physical data carrier if the execution has begun with the consumer's prior express consent and his knowledge that he thereby loses his right of withdrawal. |
CHAPTER IV
OTHER CONSUMER RIGHTS
Article 17
Scope
(1) Articles 18 and 20 apply to sales contracts. These articles do not apply to contracts for the supply of water, gas or electricity, unless offered for sale in a limited volume or quantity, of district heating or of digital content that is not delivered on a physical medium.
(2) Articles 19, 21 and 22 apply to sales and service contracts and contracts for the supply of water, gas, electricity, district heating or digital content.
Article 18
Delivery
(1) Unless the contracting parties have agreed otherwise with regard to the time of delivery, the entrepreneur shall deliver the goods by giving physical possession of the goods or control over the goods to the consumer immediately, but not later than thirty days later Conclusion of contract, transfers.
(2) If the entrepreneur has not fulfilled his obligation to deliver the goods at the time agreed with the consumer or within the period specified in paragraph 1, the consumer shall request him to make the delivery within an additional period appropriate to the circumstances . If the entrepreneur does not deliver the goods within this additional period, the consumer is entitled to withdraw from the contract.
Subparagraph 1 does not apply to sales contracts if the entrepreneur has refused to deliver the goods or if delivery within the agreed period is essential, taking into account all the circumstances accompanying the conclusion of the contract, or if the consumerr informs the entrepreneur before the contract is concluded that delivery by a specific date or on a specific day is essential. In these cases, the consumer is entitled to withdraw from the contract immediately if the entrepreneur does not deliver the goods at the time agreed with the consumer or within the period referred to in paragraph 1.
(3) In the event of withdrawal, the entrepreneur must immediately refund all amounts paid in accordance with the contract.
(4) In addition to the right of withdrawal referred to in paragraph 2, the consumer may have other remedies provided for by national law.
Article 19
Fees for the use of certain means of payment
Member States shall prohibit traders from charging consumers for the use of means of payment that exceed the costs incurred by the trader for using such means of payment.
Article 20
Risk transfer
In contracts where the entrepreneur sends the goods to the consumer, the risk of loss or damage to the goods passes to the consumer if he or a third party designated by the consumer who is not the carrier receives the goods has taken possession. However, without prejudice to the consumer's rights against the carrier, the risk passes to the consumer upon handover to the carrier if the carrier was commissioned by the consumer to transport the goods and this option was not offered by the entrepreneur.
Article 21
Telephone communication
Member States shall ensure that the consumer is not obliged to pay more than the basic tariff when contacting the trader by telephone if the trader has set up a telephone line for contacting him by telephone in connection with the contract concluded.
The right of telecommunications service providers to charge for such calls is not affected by subparagraph 1.
Article 22
Additional payments
Before the consumer is bound by the contract or offer, the entrepreneur must obtain the consumer's express consent to any additional payment that goes beyond the agreed fee for the entrepreneur's main performance obligation. If the entrepreneur has not obtained express consent from the consumer, but has obtained it by using default settings that must be rejected by the consumer if he wants to avoid the additional payment, the consumer is entitled to a refund of this payment.
CHAPTER V
GENERAL RULES
Article 23
Law Enforcement
(1) Member States shall ensure that adequate and effective means are in place to ensure compliance with this Directive.
(2) The means referred to in paragraph 1 include legislation under which one or more of the following bodies determined by national law may bring proceedings before the courts or the relevant administrative authorities in accordance with the relevant national law.to ensure the application of national provisions implementing this Directive:
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a) |
public institutions or their representatives; |
|
b) |
Consumer associations that have a legitimate interest in protecting consumers; |
|
c) |
Professional associations that have a legitimate interest dhave a chance to take action. |
Article 24
Sanctions
(1) Member States shall lay down sanctions for breaches of national rules adopted pursuant to this Directive and shall take the measures necessary to implement them. Sanctions must be effective, proportionate and dissuasive.
(2) Member States shall notify the Commission of these rules by 13 December 2013 and shall immediately inform it of any subsequent changes to these rules.
Article 25
Indispensability of the directive
If the law of a Member State is applicable to the contract, consumers cannot waive the rights conferred on them by national measures implementing this Directive.
Contractual clauses which directly or indirectly waive or limit the rights arising from this Directive are not binding on the consumer.
Article 26
Information
Member States shall take appropriate measures to inform consumers and traders about the national law transposing this Directive and, where appropriate, encourage traders and the authors of a code within the meaning of Article 2(g) of Directive 2005/29/EC to: Inform consumers about their codes of conduct.
Article 27
Unordered goods and services
If unsolicited goods, water, gas, electricity, district heating or digital content are supplied or unsolicited services are provided in violation of Article 5(5) and point 29 of Annex I to Directive 2005/29/EC, the consumer is exempt from the obligation Provision of the consideration is exempt. In these cases, the absence of a response from the consumer to such an unsolicited delivery or provision does not constitute consent.
Article 28
Implementation
(1) Member States shall adopt and publish, by 13 December 2013, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of these measures to the Commission in the form of documents. The Commission shall use these documents for the purposes of the report referred to in Article 30.
You apply these measures from June 13, 2014.
When adopting these measures, Member States shall refer to this Directive in the rules themselves or by means of a reference in the official publication. Member States shall regulate the details of the reference.
(2) This policy applies to contracts entered into after June 13, 2014.
Article 29
Reporting requirements
(1) If a Member State makes use of a regulatory option under Article 3(4), Article 6(7) and (8), Article 7(4), Article 8(6) and Article 9(3), it shall inform the Commission by 13. December 2013 of this and of all subsequent changes.
(2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: on a special website.
(3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall consult the parties concerned on this information.
Article 30
Commission reporting and review
By 13 December 2016, the Commission shall submit a report on the application of this Directive to the European Parliament and the Council.In particular, this report provides an assessment of the provisions of this Digital Content Directive, including the right of withdrawal. This report contains informationwhere appropriate, legislative proposals to adapt this Directive to developments in the field of consumer rights are attached.
CHAPTER VI
FINAL PROVISIONS
Article 31
Repeal of legal acts
Directives 85/577/EEC and 97/7/EC as amended by Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 on the distance marketing of financial services to consumers (
References to the repealed Directives shall be deemed to be references to this Directive in accordance with the correspondence table in Annex II.
Article 32
Amendment of Directive 93/13/EEC
The following article is inserted into Directive 93/13/EEC:
“Article 8a
(1) If a Member State adopts rules pursuant to Article 8, it shall inform the Commission thereof and of any subsequent amendments, in particular if those rules:
|
— |
extend the unfairness test to individually negotiated contractual terms or to the appropriateness of the price or remuneration; |
|
— |
Lists of contract terms that are considered unfair are included. |
(2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: on a special website.
(3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall hear the interested parties on this information.”
Article 33
Amendment of Directive 1999/44/EC
The following article is inserted into Directive 1999/44/EC:
“Article 8a
Reporting requirements
(1) If, in accordance with Article 8(2), a Member State adopts stricter consumer protection rules than those provided for in Articles 5(1) to (3) and 7(1), it shall inform the Commission thereof and of any subsequent amendments.
(2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: on a special website.
(3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission shall hear the interested parties on this information.”
Article 34
Entry into force
This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.
Article 35
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg on October 25, 2011.
On behalf of the European Parliament
The President
J. BUZEK
On behalf of the Council
The President
M. DOWGIELEWICZ
CHAPTER IV
OTHER CONSUMER RIGHTS
Article 17
Scope
(1) Articles 18 and 20 apply to sales contracts. These articles do not apply to contracts for the supply of water, gas or electricity, unless offered for sale in a limited volume or quantity, of district heating or of digital content that is not delivered on a physical medium.
(2) Articles 19, 21 and 22 apply to sales and service contracts and contracts for the supply of water, gas, electricity, district heating or digital content.
Article 18
Delivery
(1) Unless the contracting parties have agreed otherwise with regard to the time of delivery, the entrepreneur shall deliver the goods by giving physical possession of the goods or control over the goods to the consumer immediately, but not later than thirty days later Conclusion of contract, transfers.
(2) If the entrepreneur has not fulfilled his obligation to deliver the goods at the time agreed with the consumer or within the period specified in paragraph 1, the consumer shall request him to make the delivery within an additional period appropriate to the circumstances . If the entrepreneur does not deliver the goods within this additional period, the consumer is entitled to withdraw from the contract.
Subparagraph 1 does not apply to sales contracts if the entrepreneur has refused to deliver the goods or if delivery within the agreed period is essential, taking into account all the circumstances surrounding the conclusion of the contract, or if the consumer informs the entrepreneur before the conclusion of the contract that delivery by a specific date or on a specific day is essential. In these cases, the consumer is entitled to withdraw from the contract immediately if the entrepreneur does not deliver the goods at the time agreed with the consumer or within the period referred to in paragraph 1.
(3) In the event of withdrawal, the entrepreneur must immediately refund all amounts paid in accordance with the contract.
(4) In addition to the right of withdrawal referred to in paragraph 2, the consumer may have other remedies provided for by national law.
Article 19
Fees for the use of certain means of payment
Member States shall prohibit traders from charging consumers for the use of means of payment that exceed the costs incurred by the trader for using such means of payment.
Article 20
Risk transfer
In contracts where the entrepreneur sends the goods to the consumer, the risk of loss or damage to the goods passes to the consumer if he or a third party designated by the consumer who is not the carrier receives the goods has taken possession. However, without prejudice to the consumer's rights against the carrier, the risk is transferred to the consumer upon handover to the carrier if the carrier was commissioned by the consumer to transport the goods and this option was not offered by the entrepreneur.
Article 21
Telephone communication
Member States shall ensure that the consumer is not obliged to pay more than the basic tariff when contacting the trader by telephone if the trader has set up a telephone line for contacting him by telephone in connection with the contract concluded.
The right of telecommunications service providers to charge for such calls is not affected by the first subparagraph.
Article 22
Additional payments
Before the consumer is bound by the contract or offer, the entrepreneur must obtain the consumer's express consent to any additional payment that goes beyond the agreed fee for the entrepreneur's main performance obligation. If the entrepreneur has not obtained express consent from the consumer, but has obtained it by using default settings that must be rejected by the consumer if he wants to avoid the additional payment, the consumer is entitled to a refund of this payment.
CHAPTER V
GENERAL RULES
Article 23
Law Enforcement
(1) Member States shall ensure that adequate and effective means are in place to ensure compliance with this Directive.
(2) The means referred to in paragraph 1 include legislation under which one or more of the following bodies determined by national law may bring proceedings before the courts or the relevant administrative authorities in accordance with the relevant national law. to ensure the application of national provisions implementing this Directive:
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a) |
public institutions or their representatives; |
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b) |
Consumer associations that have a legitimate interest in protecting consumers; |
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c) |
Professional associations that have a legitimate interest in taking action. |
Article 24
Sanctions
(1) Member States shall lay down sanctions for breaches of national rules adopted pursuant to this Directive and shall take the measures necessary to implement them. Sanctions must be effective, proportionate and dissuasive.
(2) Member States shall communicate these rules to the Commission by 13. December 2013 and inform you immediately of any subsequent changes to these regulations.
Article 25
Indispensability of the directive
If the law of a Member State is applicable to the contract, consumers cannot waive the rights conferred on them by national measures implementing this Directive.
Contractual clauses which directly or indirectly waive or limit the rights arising from this Directive are not binding on the consumer.
Article 26
Information
Member States shall take appropriate measures to inform consumers and traders about the national law transposing this Directive and, where appropriate, encourage traders and the authors of a code within the meaning of Article 2(g) of Directive 2005/29/EC to: Inform consumers about their codes of conduct.
Article 27
Unordered goods and services
If unsolicited goods, water, gas, electricity, district heating or digital content are supplied or unsolicited services are provided in violation of Article 5(5) and point 29 of Annex I to Directive 2005/29/EC, the consumer is exempt from the obligation Provision of the consideration is exempt. In these cases, the consumer's failure to respond to such unsolicited delivery or provision shall not be deemed to constitute consent.
Article 28
Implementation
(1) Member States shall adopt and publish by 13. December 2013 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of these measures to the Commission in the form of documents. The Commission shall use these documents for the purposes of the report referred to in Article 30.
You apply these measures from the 13th. June 2014.
When adopting these measures, Member States shall refer to this Directive in the rules themselves or by means of a reference in the official publication. Member States shall regulate the details of the reference.
(2) This policy applies to contracts entered into after the 13th. to be closed in June 2014.
Article 29
Reporting requirements
(1) If a Member State makes use of a regulatory option under Article 3(4), Article 6(7) and (8), Article 7(4), Article 8(6) and Article 9(3), it shall inform the Commission by 13. December 2013 of this and of all subsequent changes.
(2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: a on a special website.
(3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission will consult interested parties on this information.
Article 30
Commission reporting and review
Until 13. In December 2016, the Commission will submit a report on the application of this Directive to the European Parliament and the Council. In particular, this report provides an assessment of the provisions of this Digital Content Directive, including the right of withdrawal. This report will be accompanied, where necessary, by legislative proposals to adapt this Directive to developments in the field of consumer rights.
CHAPTER VI
FINAL PROVISIONS
Article 31
Repeal of legal acts
Directives 85/577/EEC and 97/7/EC as amended by Directive 2002/65/EC of the European Parliament and of the Council of 23. September 2002 on the distance marketing of financial services to consumers (21) and Directives 2005/29/EC and 2007/64/EC are effective from 13. Repealed in June 2014.
References to the repealed Directives shall be deemed to be references to this Directive in accordance with the correspondence table in Annex II.
Article 32
Amendment of Directive 93/13/EEC
The following article is inserted into Directive 93/13/EEC:
“Article 8a
(1) If a Member State adopts rules pursuant to Article 8, it shall inform the Commission thereof and of any subsequent amendments, in particular if those rules:
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— |
extend the unfairness test to individually negotiated contractual terms or to the appropriateness of the price or remuneration; |
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— |
Lists of contract terms that are considered unfair are included. |
(2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: a on a special website.
(3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission will consult interested parties on this information.“
Article 33
Amendment of Directive 1999/44/EC
The following article is inserted into Directive 1999/44/EC:
“Article 8a
Reporting requirements
(1) If, in accordance with Article 8(2), a Member State adopts stricter consumer protection rules than those provided for in Articles 5(1) to (3) and 7(1), it shall inform the Commission thereof and of any subsequent amendments.
(2) The Commission shall ensure that the information referred to in paragraph 1 is easily accessible to consumers and traders, including: a on a special website.
(3) The Commission shall forward the information referred to in paragraph 1 to the other Member States and the European Parliament. The Commission will consult interested parties on this information.“
Article 34
Entry into force
This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.
Article 35
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg on the 25th. October 2011
On behalf of the European Parliament
The President
J. BUZEK
On behalf of the Council
The President
M. DOWGIELEWICZ
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