European consumer Day

EESC

13/03/2009

Right of withdrawal in distance and off-premisses

contracts Nuria Rodríguez

Senior Legal Officer

Setting the ground

The new proposal is based on the principle of full harmonisation

The right of withdrawal is a crucial element of consumer protection

As such its exercise has to be facilitated

The “minimum” solutions do not fit in a fully harmonised scenario

Starting point of the right of withdrawal (article 12)

Not addressed in the questions of the Green Paper! The proposal differentiates distance selling and off premises =

simplification not achieved. Still incoherence with other directives (timeshare, credit) In case of purchase of goods the rule should be unified for both distance

and off-premises, as in DCFR (moment of receipt of the good). The proposed rule for off-premises is not satisfactory (the period could finalise before the contract is actually concluded!)

A more coherent, simple and consumer friendly solution has to be found. The “starting point” has to be linked with the right of the consumer to be

informed of this right: the right of withdrawal should only start when all relevant information has been provided and the goods have been delivered (option taken in the timeshare and credit directives).

Consequences of omission of information on the right of withdrawal (article 13)

Existing directives are more protective: failure to provide (any of) the information requirements entails an extension of the cooling-off-period (distance selling, distance marketing financial services, credit directive,)

The “extra” three months in the existing directives are inadequate in a full harmonisation context :longer periods are foreseen in recent legislation (credit directive, timeshare) or in the DCFR (1 year)

The proposal combines the worst existing solutions (the three months in distance selling with the thinking in the “Hamilton” case –period ends if both parties have performed their obligations- ignoring the “Heininger” case ( cooling off only starts when the consumer has been informed of his right of w.)

Most MS do not follow the “Hamilton” model. Even if the parties have performed their obligations it still makes sense to

withdraw. The “solution” of the proposal encourages the trader to quickly perform

the contract (at excessive prices?) and bind the consumer even if he is not informed of the right of w.

An effective right of withdrawal

Consumers should not be discouraged from exercising this right:- 19 MS have no formalities for distance selling); returning the good suffices (DCFR)

- The difficulties of reimbursement to be avoided: ban on payment before the end of the cooling-off period (ECJ Santurel/Gysbrechts 16/12/08)

- Information on the non-existence of the right of withdrawal (BE, FI, FR, DE, IT, SL, ES).

- “Dispatch” principle is welcome (article 12.2)

Exemptions from the right of withdrawal

1. Fairs and market stalls

The consumer is not given a right of withdrawal when buying at fairs or market stalls (off-premises) despite that:- the consumer is often caught off guards- the pressure element is present (in the street, once a year, unique opportunity…)- Samples displayed may not match the goods eventually sent to the consumer

The Commission consultation revealed that (all?) consumer organisations agreed to the extension of the right of withdrawal.

Exemptions from the right of withdrawal

1. Internet Auctions

The right of withdrawal does not apply if the contract is concluded through an Internet auction platform despite that the pre-conditions to apply the right of withdrawal are met:

- contract at a distance- the consumer cannot see/inspect the good before hand- the identity of the seller is not known until the transaction is concluded.

10 MS will have to abolish the right of w. for consumers when purchasing through an on line auction platform

Conclusion

A high level of consumer protection?

A few novelties are welcomed (14 days, off-premises contracts upgraded, solicited visits covered)

A great number of existing rules have been “worsened” compared to the existing directives

A higher level of consumer protection is observed in many member states in many cases

Some solutions adopted in the DCFR provide for a higher level of consumer protection (i.e. no formalities, up to 1 year duration, reimbursement “without undue delay”)

The maintained exceptions to the right of withdrawal need to be rechecked

Coherence/simplification remains an issue due to (new) divergences with other directives (e.g. credit directive, timeshare directive, financial services)

Thank you for your attention!Looking forward to the debate

More information on www.beuc.eu