The new EU legislation that strengthens consumers’ rights had been widely adopted by MEPs on 23 June 2011. It will be have to be transposed into the various national consumers laws of the member states by mid June 2014. These new provisions relate mainly to distance selling (via a.o. internet, telephone and mailings).

This new directive accompanies the increasing evolution of the market share of distance selling. Indeed and particularly in France, the Netherlands and Germany, such a market share has increased over almost 50 % in three years.

Directive 2011/83/EU strengthens the rights of consumers, and requires professional sellers to disclose more information to consumers. The purpose of the Directive is among others to enable a wider harmonization between European Member States consumer law in some sectors, such as the Internet for example.

The main measures that will come into force concern the right of withdrawal, the consumer pre-contractual obligation, finalization of orders.

Regarding the right of withdrawal, one also notes the presence of several provisions allowing consumers to fully enjoy the right to withdraw after placing an order.

– The provision on every commercial website of a standard withdrawal form is mandatory.

– A period of 14 days to exercise the right of withdrawal instead of seven days at the moment, which are added 14 days to return the product and refund the purchase price and original shipping costs, whether the purchases were made by mail, phone or internet, is transposed in Article 121-21.

– Refund until receipt of the product or proof of sending return thereof may be retained.

– The current opportunity for instance existing under French law to ask for a credit note worth the due amount, as repayment, will disappear.

– The initial shipment costs are the responsibility of the professional seller unless the consumer chose a special mode of delivery.

– The professional seller is responsible for the goods carried during transport.

– A maximum delivery period of 30 days after the conclusion of the contract in order to limit consumer liability for loss or damage to the goods dispatched by the professional seller is to be defined.

– In case of forced sale, the consumer shall be exempted from the provision of any consideration.

The legal obligation to provide pre-contractual information to the consumer will also be transposed and will be enhanced so that professional sellers will have to subject themselves to notify a certain number of information in context of distance selling, in order to obtain a greater price transparency:

– The professional seller must provide the date on which he considers to deliver the goods or perform the service if the contract is not immediate.

– The professional seller must indicate the total price of the good he is selling or the service he is providing, which also include the additional expenses that may have occurred.

– The consumer shall bear the direct costs of the return of the goods unless the seller agrees to take those in charge or failed to inform the consumer that these costs are for him.

– The professional seller shall communicate any costs related to the choice of a particular means of payment.

– The professional seller should indicate any restrictions on delivery or means of payment (no later than the beginning of the ordering process).

– The withdrawal period will be extended by 12 months in case of failure to supply information on this right and type form before the contract.

Moreover, the new provisions that will be transposed into the national laws will also frame the conclusion of a distance contract, especially on the Internet.

– The professional seller must show the name of the ” order with obligation to pay ” button or similar. This obligation will be transposed under article L 121-19-3 paragraph 2.

– Pre-ticked in the basket or on the product pages are prohibited.

– The professional seller must obtain the express consent of the consumer prior to the conclusion of the contract of sale.

The Directive concerns also other provisions including hotlines, stating that phone calls to hotlines will not be charged. This harmonization at EU level of rules on distance selling will allow a uniform protection of European consumers, to the detriment however of the commercial freedom of professional sellers.

Brigitte Spiegeler – Lyssah Deme