(2)

Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules. That review has shown that it is appropriate to replace those four Directives by this single Directive. This Directive should accordingly lay down standard rules for the common aspects and move away from the minimum harmonisation approach in the former Directives under which Member States could maintain or adopt stricter national rules.

(2)

Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules. That review has shown that it is appropriate to replace those four Directives by this single Directive. This Directive should accordingly lay down standard rules for the common aspects whilst allowing Member States to maintain or adopt national rules , in relation to certain other aspects, providing for a higher level of consumer protection .

(5)

The cross-border potential of distance selling which should be one of the main tangible results of the internal market is not fully exploited by consumers . Compared with the significant growth of domestic distance sales over the last few years, the growth in cross-border distance sales has been limited. This discrepancy is particularly significant for Internet sales for which the potential of further growth is high. The cross-border potential of contracts negotiated away from business premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry. Compared with the growth of domestic direct selling over the last few years, in particular in the services sector (e.g. utilities), the number of consumers using this channel for cross-border purchases has remained flat. Responding to increased business opportunities in many Member States, small and medium size enterprises (including individual entrepreneurs ) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions. Therefore the full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to the better functioning of the business to consumer internal market.

(5)

The cross-border potential of distance selling which should be one of the main tangible results of the internal market is not fully exploited. Compared with the significant growth of domestic distance sales over the last few years, the growth in cross-border distance sales has been limited. This discrepancy is particularly significant for Internet sales for which the potential of further growth is high. The cross-border potential of contracts negotiated away from business premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry. Compared with the growth of domestic direct selling over the last few years, in particular in the services sector (e.g. utilities), the number of consumers using this channel for cross-border purchases has remained flat. Responding to increased business opportunities in many Member States, small and medium size enterprises (including individual traders ) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions. Therefore the full harmonisation of certain aspects of consumer information and of the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and better functioning of the business-to-consumer internal market.

(6)

The laws of the Member States on consumer contracts show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. The existing Community legislation in the field of consumer contracts concluded at a distance or away from business premises consumer goods and guarantees as well as unfair contract terms establishes minimum standards for harmonising legislation allowing the Member States the possibility to maintain or introduce more stringent measures which ensure a higher level of consumer protection in their territories. Furthermore, many issues are regulated inconsistently between directives or have been left open. These issues have been addressed differently by the Member States. As a result, the national provisions implementing directives on consumer contract law diverge significantly.

(7)

These disparities create significant internal market barriers affecting business and consumers. They increase compliance costs to business wishing to engage in cross border sale of goods or provision of services. Fragmentation also undermines consumer confidence in the internal market. The negative effect on consumer confidence is strengthened by an uneven level of consumer protection across the Community. This problem is particularly acute in the light of new market developments.

(7)

Certain disparities in the Member States’ legislation in the field of consumer contracts, particularly distance contracts or off-premises contracts, create significant internal market barriers affecting traders and consumers. They increase compliance costs to traders wishing to engage in cross border sale of goods or provision of services. Disproportionate fragmentation also undermines consumer confidence in the internal market.

(8)

Full harmonisation of some key regulatory aspects will considerably increase legal certainty for both consumers and business . Both consumers and business will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Community. The effect will be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. These barriers can only be eliminated by establishing uniform rules at Community level. Furthermore consumers will enjoy a high common level of protection across the Community .

(8)

Unless otherwise specified and in accordance with Article 169 of the Treaty on the Functioning of the European Union, the provisions of this Directive should not hinder the Member States from adopting or maintaining more stringent measures of national law, which improve consumer protection. However, the full harmonisation of some key regulatory aspects is justified in order to secure a single regulatory framework for consumer protection and in order to considerably increase legal certainty for both consumers and traders in cross-border business . In this case, both consumers and traders will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Union. Thus, the consumer will enjoy a high common level of protection across the Union. Furthermore, by establishing uniform rules at Union level, this should eliminate the barriers stemming from the disproportionate fragmentation of the rules and complete the internal market in this area.

(10a)

This Directive should not apply to healthcare, that is to say health services provided by health professionals to patients to assess, maintain or restore their health.

(10b)

Gambling activities, including lottery and betting transactions, should be excluded from the scope of this Directive in view of the very specific nature of those activities, in the light of which Member States should be able to adopt other, including more stringent, consumer protection measures in relation to such activities.

(11)

The existing Community legislation on consumer financial services contains numerous rules on consumer protection. For this reason the provisions of this Directive cover contracts relating to financial services only insofar as this is necessary to fill the regulatory gaps .

(11)

The existing Union legislation inter alia relating to consumer financial services or package travel contains numerous rules on consumer protection. For this reason , Articles 5 to 19 and Article 23a of this Directive should not apply to contracts relating to financial services and Articles 9 to 19 should not apply to distance and off-premises contracts relating to package travel, without prejudice to other provisions of existing Union legislation. With regard to financial services, Member States should be encouraged to draw inspiration from existing Union legislation in that area when legislating in areas not regulated at Union level, in such a way that a level playing field for all consumers and all contracts relating to financial services is ensured. The Commission should aim at complementing Union legislation in the field of financial services in order to close existing gaps and protect consumers in all types of contracts.

(11a)

Articles 9 to 19 of this Directive should be without prejudice to the application of the provisions of the Member States relating to the acquisition of immovable property and guarantees relating to immovable property or the formation or transfer of rights in rem in immovable property. This includes agreements connected with such legal acts, such as sales of immovable property still to be developed and hire-purchase.

(11b)

As no difficult psychological situation applies when contracts, in accordance with the provisions of the Member States, are established by a public office-holder, such contracts should be excluded from the scope of Articles 9 to 19 of this Directive.

(11c)

For the purposes of this Directive, leasing contracts for motor vehicles, where the motor vehicle is returned at the end of the contract, should be considered as motor vehicle rental services.

(11d)

Many Member States have chosen to apply national consumer protection rules to other entities such as non-governmental organisations, start-up businesses and small and medium-sized enterprises, and other Member States may wish to do so. It should be recalled that Member States may extend the scope of the national rules adopted in order to implement this Directive to cover natural or legal persons who are not consumers within the meaning of this Directive.

(11e)

Digital content transmitted to the consumer in a digital format, where the consumer obtains the possibility of use on a permanent basis or in a way similar to the physical possession of a good, should be treated as goods for the application of the provisions of this Directive which apply to sales contracts. However, a withdrawal right should only apply until the moment the consumer chooses to download the digital content.

(12)

The new definition of distance contract should cover all cases where sales and service contracts are concluded using exclusively one or more means of distance communication (such as mail order, Internet, telephone or fax). This should create a level playing field for all distance traders. It should also improve legal certainty as compared to the current definition requiring the presence of an organised distance selling scheme run by the trader up to the conclusion of the contract.

(12)

The new definition of distance contract should cover all cases where contracts concerning the supply of a good or the provision of a service are concluded between the trader and the consumer under an organised distance sales or service-provision scheme and without the simultaneous physical presence of the parties, using exclusively one or more means of distance communication (such as mail order, Internet, telephone or fax). Websites offering only information on the trader, his goods and/or services should not be covered by the definition of such an organised distance sales or service-provision scheme, even if such websites indicate one or more means of distance communication. This should create a level playing field for all distance traders.

(13)

The particular circumstances under which an offer was made or the contract was negotiated should not be relevant in the definition of a distance contract. The fact that the trader is an occasional distance seller or that he uses an organised scheme run by a third party such as an online platform, should not deprive consumers of their protection. Similarly, a transaction negotiated face to face between the trader and the consumer away from business premises should be a distance contract, if the contract has then been concluded through the exclusive use of means of distance communication, such as the Internet or telephone. For traders, a simpler definition of a distance contract should improve legal certainty and protect them from unfair competition.

(13)

The particular circumstances under which an offer was made or the contract was negotiated should not be relevant in the definition of a distance contract. The fact that the trader uses an organised distance sales or service-provision scheme run by a third party such as an online platform, should not deprive consumers of their protection. Similarly, a transaction negotiated face to face between the trader and the consumer away from business premises should be a distance contract, if the contract has then been concluded through the exclusive use of means of distance communication, such as the Internet or telephone. For traders, a simpler definition of a distance contract should improve legal certainty and protect them from unfair competition.

(14)

An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, away from business premises, for example at the consumer’s home or workplace. In an off-premises context, consumers are under psychological pressure no matter whether they have solicited the trader’s visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer’s home but concluded in a shop should be regarded as an off-premises contract.

(14)

An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, away from business premises, for example at the consumer’s home or workplace. In an off-premises context, consumers are temporarily in a special situation which is different from the situation in a shop, for instance from a psychological point of view and as regards the scope for comparing goods and prices, no matter whether they have solicited the trader’s visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer’s home but concluded in a shop should be regarded as an off-premises contract only when the main components of the contract have been determined in the course of an excursion, a leisure event or a sales demonstration . Nevertheless, contracts under which the payment to be made by the consumer does not exceed EUR 40 should not be covered by the information requirements laid down in this Directive, so that for instance street traders, whose goods are supplied immediately, are not overburdened with obligations as regards information. A right of withdrawal is also unnecessary in such cases, since the implications of such contracts are readily understandable. Nevertheless Member States should remain free, and be encouraged, to set a lower value.

(15)

Business premises should include premises in whatever form (such as shops or lorries) which serve as a permanent place of business for the trader. Market stalls and fair stands should be treated as business premises even though they may be used by the trader on a temporary basis. Other premises which are rented for a short time only and where the trader is not established (such as hotels, restaurants, conference centres, cinemas rented by traders who are not established there) should not be regarded as business premises. Similarly, all public spaces including public transport or facilities as well as private homes or workplaces should not be regarded as business premises.

(15)

Business premises should include premises in whatever form (such as shops , taxis or lorries) which serve as a permanent place of activity for the trader. Market stalls should be treated as business premises even though they may be used by the trader on a temporary or regular basis. Other premises which are rented for a short time only and where the trader is not established (such as hotels, restaurants, conference centres, cinemas rented by traders who are not established there) should not be regarded as business premises. Similarly, all public spaces including public transport or facilities as well as private homes or workplaces should not be regarded as business premises.

(16)

The definition of durable medium should include in particular documents on paper, USB sticks, CD-ROMs, DVDs, memory cards and the hard drive of the computer on which the electronic mail or a pdf file is stored.

(16)

Durable media should include in particular paper, USB sticks, CD-ROMs, DVDs, memory cards or the hard disks of computers. In order to qualify as a ‘durable medium’, an electronic mail or a website should firstly enable the consumer to store the information for as long as it is relevant for him to protect his interests stemming from his relationship with the trader. Secondly, the electronic mail or website should allow for the information to be stored in such a way as to make it impossible for the trader to change it unilaterally .

(17)

Consumers should be entitled to receive information before the conclusion of the contract. However traders should not have to provide the information when already apparent from the context. For example in an on-premises transaction, the main characteristics of a product, the identity of the trader and the arrangements for delivery may be apparent from the context. In distance and off-premises transactions, the trader should always provide the information on arrangements for payment, delivery, performance and the complaint handling policy, since these might not be apparent from the context.

(17)

The consumer should be given comprehensive information before he is bound by an on-premises contract, a distance contract, an off-premises contract or a corresponding contract offer .

In providing that information, the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee. However, taking into account such specific needs should not lead to different levels of consumer protection.

(17a)

Notwithstanding the exemption for the trader to provide the information set out in Article 9 on a durable medium when concluding an off-premises mixed contract for which the trader and the consumer immediately perform their contractual obligations and the payment to be made by the consumer does not exceed EUR 200, the consumer should nevertheless be given comprehensive information by the trader on the essential points of the contract, especially as regards the price, before the consumer is bound by that contract.

(20)

The consumer should know whether he is contracting with the trader or with an intermediary acting on behalf of another consumer, since in the latter case the consumer may not enjoy the protection under this Directive. Therefore the intermediary should inform of this fact and the consequences thereof. The notion of intermediary should not include online trading platforms which do not conclude the contract in the name of or on behalf of any other party.

(22)

Since in the case of distance sales, the consumer is not able to see the good before concluding the contract he should have a right of withdrawal, which allows him to ascertain the nature and functioning of the goods.

(22)

Since in the case of distance sales, the consumer is not able to see the good before concluding the contract he should have a right of withdrawal, so that, until the expiration of the withdrawal period, he can ascertain the nature , quality and functioning of the goods. Such a right of withdrawal should also be granted for off-premises contracts.

(24)

To ensure legal certainty, it is appropriate that Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits should apply to the calculation of the periods contained in this Directive. Therefore, all periods contained in this Directive should be understood to be expressed in calendar days.

(26)

When the consumer orders more than one good from the same trader, he should be entitled to exercise the right of withdrawal in respect of each of these goods. If the goods are delivered separately , the withdrawal period should start when the consumer acquires the material possession of each individual good . Where a good is delivered in different lots or pieces, the withdrawal period should start when the consumer or a third party indicated by the consumer acquires the material possession of the last lot or piece.

(26)

Where goods are supplied in more than one delivery , the withdrawal period should begin from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires the material possession of the first partial shipment . Where a good is delivered in different lots or pieces, the withdrawal period should begin from the day on which the consumer acquires the material possession of the last lot or piece. If multiple goods are ordered by the consumer in one order and but are delivered separately, the withdrawal period should start when the consumer acquires possession of the last good.

(27)

If the trader has not informed the consumer on the right of withdrawal prior to the conclusion of a distance or off-premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a three-month limitation period should be introduced , provided that the trader has fully performed his contractual obligations . The trader should be regarded as having fully performed his obligations when he has delivered the goods or has fully provided the services ordered by the consumer.

(27)

If the trader has not informed the consumer on the right of withdrawal prior to the conclusion of a distance or off-premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a one-year limitation period should be introduced. However, Member States should be allowed to maintain existing national legislation to extend that limitation period .

(28)

Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for businesses selling cross-border. The introduction of a harmonised standard withdrawal form to be used by the consumer should simplify the withdrawal process and bring legal certainty. For these reasons, Member States should refrain from adding any presentational requirements to the Community-wide standard form relating for example to the font size.

(28)

Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for businesses selling cross-border. The introduction of a harmonised standard withdrawal form that the consumer may use should simplify the withdrawal process and bring legal certainty. For these reasons, Member States should refrain from adding any presentational requirements to the Union-wide standard form relating for example to the font size. However, the consumer should remain free to withdraw using his own chosen wording, provided that his statement to the trader is clearly worded. Sending back the goods, sending a letter or a making a telephone call could also meet this requirement, but the burden of proof for demonstrating having withdrawn within the time limits specified in this Directive may be on the consumer. For this reason, it is in the interest of the consumer to make use of a durable medium when communicating his withdrawal to the trader.

(30)

In case of withdrawal the trader should reimburse all payments received from the consumer, including those covering the expenses born by the trader to deliver goods to the consumer.

(30)

In case of withdrawal the trader should reimburse all payments received from the consumer, including those covering the expenses born by the trader to deliver goods to the consumer , with the exception of payments for express deliveries at the express wish of the consumer . Reimbursement should be possible by any means of payment, provided they are legal tender in the Member State where the consumer receives it. Therefore, reimbursement shall not take place in the form of vouchers or credit notes.

(32)

In order to avoid the trader reimbursing a consumer who has not returned the goods, the consumer should be required to send back the goods no later than fourteen days after having informed the trader about his decision to withdraw.

(32)

In order to avoid the trader reimbursing a consumer who has not returned the goods, the consumer should be required to send back the goods no later than fourteen days after having informed the trader about his decision to withdraw. By the same token, the trader should also be enabled to make reimbursement subject to the condition that the consumer has supplied evidence of having sent back the goods.

(33)

Certain exemptions should exist from the right of withdrawal, such as in cases where a right of withdrawal would be inappropriate given the nature of the product. That is applicable for example to wine supplied a long time after the conclusion of the contract of a speculative nature where the value is dependent on fluctuations in the market (vin en primeur).

(33)

Certain exemptions should exist from the right of withdrawal, such as in cases where a right of withdrawal would be inappropriate given the nature of the product , and exercising a right of withdrawal would unfairly disadvantage the trader . That is applicable in particular to foodstuffs and other hygienically sensitive or perishable goods, for example to wine supplied a long time after the conclusion of the contract of a speculative nature where the value is dependent on fluctuations in the market (vin en primeur). Certain other goods or services whose price is dependent on market fluctuations, for instance commodities such as fuel oil, should also be exempt from the right of withdrawal.

(34)

Furthermore, in case of distance contracts for the provision of services, for which the performance begins during the withdrawal period ( e.g. data files downloaded by the consumer during that period), it would be unfair to allow the consumer to withdraw after the service has been enjoyed by the consumer in full or in part. Therefore the consumer should lose his right of withdrawal when performance begins with his prior express agreement.

(34)

Furthermore, in case of distance and off-premises contracts for the provision of services, for which the performance begins during the withdrawal period ( for instance data files downloaded by the consumer during that period), it would be unfair to allow the consumer to withdraw after the service has been enjoyed by the consumer in full or in part. Therefore the consumer should lose his right of withdrawal when performance begins with his prior express agreement , provided that such agreement constitutes informed consent, that is to say that the consumer has been informed of the consequences of this decision in terms of losing his right of withdrawal .

(37)

For the purpose of simplification and legal certainty, the right of withdrawal should apply to all types of off-premises contracts, except under strictly defined circumstances which can easily be proved. Therefore, no right of withdrawal should apply for urgent repairs at the consumer’s home for which such a right of withdrawal would be incompatible with the emergency situation as well as for supermarket home-delivery schemes which allow consumers to select food, drinks and other goods intended for current consumption in the household through the supermarket’s website and have them delivered at their home. These are goods, which are inexpensive and bought regularly by consumers for their every day’s consumption or everyday use in the household and should therefore not be subject to a right of withdrawal. The main difficulties encountered by consumers and the main source of disputes with traders are about delivery of goods, including goods getting lost or damaged during transport and late and partial delivery. Therefore it is appropriate to clarify and harmonise the national rules on delivery and passing of risk.

(37)

For the purpose of simplification and legal certainty, the right of withdrawal should apply to all types of distance and off-premises contracts, except under strictly defined circumstances which can easily be proved.

(37a)

The main difficulties encountered by consumers and the main source of disputes with traders concern delivery of goods, including goods getting lost or damaged during transport and late or partial delivery. Therefore it is appropriate to harmonise the national rules on delivery and passing of risk.

(37b)

Where the trader has failed to fulfil his obligations to deliver the goods, the consumer should call upon him, on a durable medium, to make the delivery within no less than seven days and notify him of his intention to withdraw from the contract if delivery does not take place. The consumer should be deemed to have withdrawn from the contract if no action has been taken by the time the deadline expires. Without prejudice to his rights to claim damages, the consumer should be entitled to reimbursement within seven days of withdrawal if payment has already been made. It should be possible for Member States to adopt or maintain provisions of national law, in order to ensure a higher level of consumer protection.

(38)

In the context of consumer sales, the delivery of goods can take place in various ways. Only a rule which may be freely derogated from will allow the necessary flexibility to take into account those variations. The consumer should be protected against any risk of loss or damage of the goods occurring during the transport arranged or carried out by the trader. The rule introduced on the passing of risk should not apply where the consumer unduly delays taking possession of the goods (for example, when the goods are not collected by the consumer from the post-office within the deadline fixed by the latter). In those circumstances, the consumer should bear the risk of loss or deterioration after the time of delivery as agreed with the trader.

(38)

In the context of consumer sales, the delivery of goods can take place in various ways : either immediately or at a later date . If the parties have not agreed on a specific delivery date, the trader should deliver the goods as soon as possible but in any event not later than thirty days from the day of the conclusion of the contract. The consumer should be protected against any risk of loss or damage of the goods occurring during the transport arranged or carried out by the trader. The rule introduced on the passing of risk should not apply where the consumer unduly delays taking possession of the goods (for example, when the goods are not collected by the consumer from the post-office within the deadline fixed by the latter). In those circumstances, the consumer should bear the risk of loss or deterioration after the time of delivery as agreed with the trader.

(38a)

In many transactions consumers are provided with insufficient choices of means of payments or they are charged if they refuse to use certain means. This situation should be addressed by means of a provision which ensures that the trader will offer to the consumer different means of payment and, in the case of distance contracts, these should include both electronic and non-electronic means of payment. An example of a non-electronic system of payment would be the printing of an order from the trader’s website to be paid in cash at a bank or at any other contact point of the trader.

(39)

The trader should be liable to the consumer if the goods are not in conformity with the contract. The goods should be presumed to be in conformity with the contract if they satisfy a number of conditions concerning mainly the qualities of the goods. The quality and performance which consumers can reasonably expect will depend inter alia on whether the goods are new or second-hand as well as on the expected life-span of the goods.

(39)

The trader should be liable to the consumer if the goods are not in conformity with the contract. The goods should be presumed to be in conformity with the contract if they satisfy a number of conditions concerning mainly the quality and quantity of the goods. The quality and performance which consumers can reasonably expect will depend inter alia on whether the goods are new or second-hand as well as on the expected life-span of the goods. Where goods other than those ordered have been delivered, or in the event of undershipment, the goods should be presumed not to be in conformity with the contract.

(40)

If the good is not in conformity with the contract, firstly, the consumer should have the possibility to require the trader to repair the goods or to replace them at the trader’s choice unless the trader proves that those remedies are unlawful, impossible or causes the trader disproportionate effort. The trader’s effort should be determined objectively considering costs incurred by the trader when remedying the lack of conformity, the value of the goods and the significance of the lack of conformity. The lack of spare parts should not be a valid ground to justify the trader’s failure to remedy the lack of conformity within a reasonable time or without a disproportionate effort.

(40)

The consumer should in the first instance have the option of requiring the trader to repair the goods or to replace them unless those remedies are impossible or disproportionate. Whether or not a remedy is disproportionate should be determined objectively. A remedy should be considered disproportionate if it imposes, in comparison with other remedies, unreasonable costs. In order to determine whether the costs are unreasonable, the costs of one remedy should be significantly higher than the costs of another remedy.

(41)

The consumer should not bear any costs for remedying the lack of conformity, particularly the cost of postage, labour and materials. Furthermore, the consumer should not compensate the trader for the use of the defective goods.

(41)

The consumer should not bear any costs for remedying the lack of conformity, particularly the cost of postage, labour and materials. Furthermore, the consumer should not compensate the trader for the use of the defective goods. The consumer should be entitled to claim damages, in accordance with provisions of applicable national law, for any loss resulting from lack of conformity with the sales contract and not remedied by the trader. It should be possible for such damages to include non-pecuniary damages where applicable national law so provides .

(42)

When the trader has either refused or has more than once failed to remedy the lack of conformity the consumer should be entitled to choose freely any of the available remedies. The trader’s refusal can be either explicit or implicit, meaning in the latter case that the trader does not respond or ignores the consumer’s request to remedy the lack of conformity.

(42)

The consumer should be entitled to choose freely any of the available remedies if he is not entitled to have the goods repaired or replaced . It should be possible for Member States to adopt or maintain provisions of national law on the free choice of remedies in the event of lack of conformity , in order to ensure a higher level of consumer protection .

(42a)

It should be stipulated that in certain cases the trader may be held liable for a lack of conformity that existed at the time the risk was transferred to the consumer, even if the lack of conformity becomes apparent only subsequently.

(42b)

Where the trader, as final seller, is liable to the consumer because of an act or omission by the producer, it should be ensured that the trader, as final seller, can pursue remedies against the person or persons liable in the contractual chain. To this end, Member States’ national provisions should determine the person or persons liable, together with the relevant actions and procedure.

(42c)

With regard to lack of conformity, the consumer should be entitled to a two-year liability period. There should be a rebuttable presumption in the consumer’s favour that any lack of conformity which has become apparent within six months after the risk passed to the consumer already existed when the risk passed. It should be possible for Member States to adopt or maintain provisions of national law on liability periods, duration for reversal of the burden of proof or specific rules on significant lack of conformity which becomes apparent after the liability period, in order to ensure a higher level of consumer protection.

(43)

Directive 1999/44/EC allowed the Member States to set a period of at least two months during which the consumer was to inform the trader of any lack of conformity. The diverging transposition laws have created barriers to trade. Therefore, it is necessary to remove this regulatory option and improve legal certainty by obliging consumers to inform the trader of the lack of conformity within two months from the date of detection.

(44)

Some traders or producers offer consumers commercial guarantees. In order to ensure that consumers are not misled, the commercial guarantees should include certain information, including their duration, territorial scope and a statement that the commercial guarantee does not affect the consumer’s legal rights.

(44)

Some traders or producers offer consumers commercial guarantees. In order to ensure that consumers are not misled, the commercial guarantees should include certain information, including their duration, territorial scope and a statement that the commercial guarantee does not affect the consumer’s legal rights under the national provisions in force and those laid down in this Directive .

(45a)

The harmonised regulatory aspects concern only contracts concluded between traders and consumers. Therefore, the provisions on unfair contract terms should not affect national law in the area of contracts relating to employment, contracts relating to succession rights, contracts relating to family law and contracts relating to the incorporation and organisation of companies or partnership agreements and bond terms.

(46)

Provisions on unfair contract terms should not apply to contract terms, which directly or indirectly reflect mandatory statutory or regulatory provisions of the Member States which comply with Community law. Similarly terms which reflect the principles or provisions of international conventions to which the Community or the Member States are party, particularly in the transport area, should not be subject to the unfairness test.

(46)

Provisions on unfair contract terms should not apply to contract terms, which directly or indirectly reflect statutory , regulatory or public policy provisions of the Member States which comply with Union law. Similarly , contract terms should reflect the principles and provisions of the Charter of Fundamental Rights of the European Union. Terms which reflect the principles or provisions of international conventions to which the Union or the Member States are party, particularly in the transport area, should not be subject to the unfairness test.

(47)

Consumer contracts should be drafted in plain, intelligible language and be legible . Traders should be free to choose the font type or size in which the contract terms are drafted. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g. on the trader’s website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The trader should seek the consumer’s express consent to any payment in addition to the remuneration for the trader’s main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online should be prohibited.

(47)

All contract terms should be expressed in a clear and comprehensible manner. If a contract term is in writing, it should always be drafted in plain, intelligible language. Traders should be free to choose the font type or size in which the contract terms are drafted. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g. on the trader’s website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The trader should seek the consumer’s express consent to any payment in addition to the remuneration for the trader’s main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online should be prohibited.

(47a)

Traders should be free to choose the way in which contract terms are communicated, for example the font type or size in which the contract terms are drafted. Member States should refrain from imposing any presentational requirements, except for those related to persons with disabilities or where the goods or services may present a particular risk to the health and safety of the consumer or a third person. Member States may also seek to impose additional requirements where, due to complexities inherent in contracts for such goods or services, there is a risk of consumer detriment including issues arising which relate to competition in that sector. This may apply, for example, to contracts relating to financial services, gas, electricity and water, telecoms and immovable property. However, this should not apply to formal national requirements concerning the conclusion of the contract or other formal requirements such as for instance the language of the terms, requirements on the content of the terms or the formulation of certain contract terms for specific sectors. This Directive should not harmonise language requirements applicable to consumer contracts. Therefore, Member States should be able to maintain or introduce in their national law linguistic requirements relating to the contractual terms.

(49)

For the purposes of this Directive, neither the fairness of terms which describe the main subject matter of the contract, nor the quality/price ratio of the goods or services supplied should be assessed unless these terms did not meet transparency requirements. The main subject matter of the contract and the price/quality ratio should nevertheless be taken into account in assessing the fairness of other terms. For example, in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer’s liability should not be subject to such an assessment since these restrictions are taken into account in calculating the premium paid by the consumer.

(49)

For the purposes of this Directive, neither the fairness of terms which describe the main subject matter of the contract, nor the quality/price ratio of the goods or services supplied should be assessed unless these terms did not meet transparency requirements. The main subject matter of the contract and the price/quality ratio should nevertheless be taken into account in assessing the fairness of other terms. For example, in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer’s liability should not be subject to such an assessment since these restrictions are taken into account in calculating the premium paid by the consumer. This exclusion does not apply to the remuneration foreseen for the trader from ancillary or contingent charges set out in the contract, including fees or charges for breaching any of the terms of the contract, which should be fully subject to the fairness test.

(50)

In order to ensure legal certainty and improve the functioning of the internal market, the Directive should contain two lists of unfair terms. Annex II contains a list of terms which should in all circumstances be considered unfair. Annex III contains a list of terms which should be deemed unfair unless the trader proves otherwise. These same lists should apply in all Member States.

(50)

In order to ensure legal certainty and improve the functioning of the internal market, the Directive should contain two non-exhaustive lists of unfair terms. Annex II contains a list of terms which should in all circumstances be considered unfair. Annex III contains a list of terms which should be deemed unfair unless the trader proves otherwise.

(51)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.

(52)

In particular, the Commission should be empowered to amend Annexes II and III on contract terms to be considered or presumed unfair. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(53)

The Commission’s power to amend Annexes II and III should be used to ensure consistent implementation of the rules on unfair terms by supplementing those Annexes with contractual terms, which should be considered unfair in all circumstances or which should be deemed unfair unless the trader has proved otherwise.

(55a)

The Member States should ensure that their national authorities have the necessary level of cooperation with the European Consumer Centre (ECC) network, so as to react in cross-border cases, especially on pending requests at ECCs.

(60)

The European Commission will look into the most appropriate way to ensure that all consumers are made aware of their rights at the point of sale.

(60)

The Commission , following consultation with the Member States and stakeholders, will look into the most appropriate way to ensure that all consumers and traders are made aware of their rights at the point of sale. The Commission should avail itself especially of the means provided by information and communication technology tools and public media.

(61a)

Provision should be made for a mutual evaluation process in which, during the transposition period for this Directive, Member States would first have to screen their legislation in order to ascertain what stricter provisions, which are compliant with the Treaty on the Functioning of the European Union, are to be maintained or adopted in their national law in order to ensure a higher level of protection for the consumer. By the end of the transposition period for this Directive, Member States should draw up a report on the results of this screening. The Commission should submit each report to all other Member States and stakeholders. Member States and the European Parliament would then have six months in which to submit their observations on those reports. Not later than one year after the end of the transposition period for this Directive, and every three years thereafter, the Commission should draw up a report, accompanied where appropriate by legislative proposals. If necessary, the Commission could assist the Member States in devising a common method.

(61b)

To ensure a high level of consumer protection in all Member States, persons and organisations with a legitimate interest in consumer protection should be encouraged to notify the Member States and the Commission about their evaluations and issue non-binding recommendations so that they can be taken into account when this Directive is reviewed.

(63)

It is appropriate to review this Directive if some barriers to the internal market were identified. The review could lead to a Commission proposal to amend this Directive, which may include amendments to other consumer protection legislation reflecting the Commission’s Consumer Policy Strategy commitment to review the acquis in order to achieve a high, common level of consumer protection.

(1)

‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession ;

(1)

‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are primarily outside his trade, business, craft or profession.

(2)

‘trader’ means any natural or legal person who, in contracts covered by this Directive , is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;

(2)

‘trader’ means any natural or legal person who, irrespective of whether privately or publicly owned , is acting for purposes relating to his trade, business, craft or profession and anyone acting on behalf of a trader in relation to contracts covered by this Directive ;

(2a)

‘goods’ means any tangible movable item, and any intangible item usable in a manner which can be equated with physical possession, with the exception of goods sold by way of execution or otherwise by authority of law. Water, gas and electricity shall be considered as ‘goods’ within the meaning of this Directive where they are put up for sale in a limited volume or set quantity;

(2b)

‘good made to the consumer’s specifications’ means any non-prefabricated good made on the basis of an individual choice or decision by the consumer;

(3)

‘sales contract’ means any contract for the sale of goods by the trader to the consumer including any mixed-purpose contract having as its object both goods and services;

(4)

‘goods’ means any tangible movable item, with the exception of:

(5)

‘service contract ’ means any contract other than a sales contract whereby a service is provided by the trader to the consumer;

(5)

‘service’ means any work or other service of any kind provided by the trader to the consumer for remuneration ;

( 5a )

‘sales contract’ means any contract whereby a trader grants ownership of goods to a consumer in accordance with the applicable national law, or undertakes to grant such ownership, and whereby the consumer undertakes to pay the agreed price.

(5b)

‘mixed-purpose contract’ means any contract that includes both aspects relating to the provision of services and aspects relating to the supply of goods;

(6)

‘distance contract’ means any sales or service contract where the trader , for the conclusion of the contract, makes exclusive use of one or more means of distance communication;

(6)

‘distance contract’ means any contract for the supply of a good or the provision of a service concluded between a trader and a consumer under an organised distance sales or service-provision scheme where the trader and the consumer are not simultaneously physically present for the conclusion of the contract, but, rather, make exclusive use of one or more means of distance communication;

(7)

‘means of distance communication’ means any means which, without the simultaneous physical presence of the trader and the consumer, may be used for the conclusion of a contract between those parties;

(8)

‘off-premises contract’ means:

(8)

‘off-premises contract’ means any contract between a trader and a consumer for the supply of a good or the provision of a service :

(a)

any sales or service contract concluded away from business premises with the simultaneous physical presence of the trader and the consumer or any sales or service contract for which an offer was made by the consumer in the same circumstances , or

(a)

which is concluded away from business premises with the simultaneous physical presence of the trader and the consumer, or

(aa)

for which an offer was made by the consumer with the simultaneous physical presence of the trader and the consumer away from business premises, or

(b)

any sales or service contract concluded on business premises but negotiated away from business premises, with the simultaneous physical presence of the trader and the consumer.

(b)

whose main components have been determined in the course of an excursion, a leisure event or a sales demonstration organised by the trader away from business premises, with the simultaneous physical presence of the trader and the consumer, the aim of such excursion, leisure event or demonstration being to conclude a contract subsequently on business premises ;

(b)

market stalls and fair stands where the trader carries on his activity on a regular or temporary basis;

(b)

market stalls where the trader carries on his activity on a regular or temporary basis;

(12)

‘product’ means any good or service including immoveable property, rights and obligations;

(14)

‘professional diligence’ means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader’s field of activity;

(15)

‘auction’ means a method of sale where goods or services are offered by the trader through a competitive bidding procedure which may include the use of means of distance communication and where the highest bidder is bound to purchase the goods or the services. A transaction concluded on the basis of a fixed-price offer, despite the option given to the consumer to conclude it through a bidding procedure is not an auction;

(16)

‘public auction’ means a method of sale where goods are offered by the trader to consumers, who attend or are given the possibility to attend the auction in person, through a competitive bidding procedure run by an auctioneer and where the highest bidder is bound to purchase the goods ;

(16)

‘public auction’ means a method of sale where a good or a service is offered by the trader to consumers, during an event which is physically accessible to the public, through a transparent, competitive bidding procedure run by a third party (the auctioneer), who, for pecuniary consideration, acts as the trader’s agent. In an ascending price auction, the good or service is sold to the consumer or a person acting on his behalf making the highest bid. In a descending price auction, the good or service is sold to the consumer or a person acting on his behalf who is first to agree immediately to purchase the good or service for the asking price;

(17)

‘producer’ means the manufacturer of goods, the importer of goods into the territory of the Community or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods;

(17)

‘producer’ means the manufacturer of goods, the importer of goods into the territory of the Union or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods;

(18)

‘commercial guarantee’ means any undertaking by the trader or producer (the ‘guarantor’) to the consumer to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;

(18)

‘commercial guarantee’ means any undertaking by the trader or producer (the ‘guarantor’) to the consumer , in addition to his legal obligations relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirement not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;

(19)

‘intermediary’ means a trader who concludes the contract in the name of or on behalf of the consumer;

(20)

‘ ancillary contract’ means a contract by which the consumer acquires goods or services related to a distance contract or an off-premises contract and these goods or services are provided by the trader or a third party on the basis of an arrangement between that third party and the trader.

(20)

‘ linked contract’ means any contract for the supply of a good or the provision of a service:

(a)

which forms, from an objective point of view, a commercial unit with a distance contract or an off-premises contract; and

(b)

where the goods are supplied or the services are provided by the trader or a third party on the basis of an arrangement between that third party and the trader.

(a)

social services;

(b)

healthcare, that is to say health services provided by health professionals to patients to assess, maintain or restore their health;

(c)

gambling, which involves wagering a stake with pecuniary value in games of chance, including lotteries, casino games and betting transactions.

(a)

relating to financial services;

(b)

falling within the scope of Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services (2).

(a)

relating to the formation, acquisition or conveyance of rights in immovable property or guarantees in immovable property, or relating to the construction or major modification of a building or the renting of a building or an apartment;

(b)

falling within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (3) or Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange contracts (4);

(c)

which, in accordance with the provisions of the Member States, are established by a public office-holder who has a statutory obligation to be independent and impartial and must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful consideration and with knowledge of its legal scope.

(a)

concluded by means of automatic vending machines or automated commercial premises;

(b)

concluded with telecommunications operators through public payphones for the use thereof, or relating to single telephone, Internet or fax connections established by the consumer.

(a)

electricity;

(b)

water and gas, where they are not put up for sale in a limited volume or set quantity.

(a)

the main characteristics of the product , to an extent appropriate to the medium and the product ;

(a)

the main characteristics of the good or service , to an extent appropriate to the good or service ;

(b)

the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting ;

(b)

the identity of the trader, such as his trading name;

(ba)

the trader’s business address, telephone, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and to communicate with the trader efficiently;

(c)

the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

(c)

the total price inclusive of taxes, or where the nature of the good or service means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges and any other cost or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of an contract of indeterminate duration, the total price shall mean the total monthly costs ;

(d)

the arrangements for payment, delivery, performance and the complaint handling policy , if they depart from the requirements of professional diligence ;

(d)

where appropriate, the arrangements for payment, delivery, performance , the date by which the trader undertakes to deliver the goods or to provide the service and the trader’s complaint handling policy;

(f)

the existence and the conditions of after-sales services and commercial guarantees, where applicable;

(f)

in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;

(fa)

the existence of codes of conduct and how they can be obtained, where applicable;

(g)

the duration of the contract where applicable or if the contract is open-ended , the conditions for terminating the contract;

(g)

the duration of the contract where applicable or if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;

(i)

the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader.

(i)

where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;

(ia)

the application of technical protection measures for digital content, where applicable;

(ib)

any interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of, including any lack of interoperability, where applicable;

(ic)

he possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it, where applicable.

(a)

the information referred to in Articles 5 and 7 and, by way of derogation from Article 5(1)(d), the arrangements for payment, delivery and performance in all cases ;

(a)

the main characteristics of the good or service, to the extent appropriate to the medium and the good or service;

(b)

where a right of withdrawal applies, the conditions and procedures for exercising that right in accordance with Annex I ;

(b)

the identity of the trader, such as his trading name ;

(ba)

the trader’s business address, telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and to communicate with him efficiently;

(c)

if different from his geographical address, the geographical address of the place of business of the trader (and where applicable that of the trader on whose behalf he is acting) where the consumer can address any complaints ;

(c)

the total price inclusive of taxes, or, where the nature of the good or service means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges and any other cost or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable; in the case of a contract of indeterminate duration, the total price shall mean the total monthly costs ;

(d)

the existence of codes of conduct and how they can be obtained, where applicable ;

(d)

the arrangements for payment, delivery, performance, the date by which the trader undertakes to deliver the goods or to perform the service and the trader’s complaint handling policy ;

(e)

the possibility of having recourse to an amicable dispute settlement, where applicable ;

(e)

in so far as a right of withdrawal exists, the conditions, period and procedure for exercising that right including the eventual costs of return of the goods for the consumer; for this purpose, the trader may use the model instructions on withdrawal set out in Annex I(A) and the model withdrawal form set out in Annex I(B), or any other clearly worded statement; if the trader informs the consumer using the model instructions on withdrawal set out in Annex I(A), he shall be deemed to have satisfied the information requirements laid down in this Article concerning the right of withdrawal ;

(ea)

where a right of withdrawal does not apply in accordance with Article 19(1), the information that the consumer cannot exercise a right of withdrawal;

(f)

that the contract will be concluded with a trader and as a result that the consumer will benefit from the protection afforded by this Directive.

(f)

in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;

(fa)

the existence of codes of conduct and how copies of them can be obtained, where applicable;

(fb)

the duration of the contract where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;

(fc)

the minimum duration of the consumer’s obligations under the contract, where applicable;

(fd)

the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;

(fe)

the application of technical protection measures for digital content, where applicable;

(ff)

any interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of, including any lack of interoperability, where applicable;

(fg)

the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it, where applicable.

(a)

the trader shall not be required to provide the information set out in Article 9 on paper or another durable medium; and

(b)

the signature by the consumer of an order form shall not be required for the validity of the contract;

(a)

the trader has made the consumer aware in a clear and prominent manner of the total price, including all related price components; and

(b)

the consumer has confirmed that he has read and understood the information required under point (a). With regard to contracts concluded through websites, this requirement shall be deemed to be satisfied if the website is designed in such a way that a binding order cannot be placed unless the consumer has previously registered on the trader’s website to use the trader’s offer.

(a)

in the case of multiple goods ordered by the consumer in one order and delivered separately, of the last good delivered;

(b)

in the case of a good consisting of multiple lots or pieces, of the last lot or piece;

(c)

in the case of the recurring delivery of goods of the same kind during a defined period of time, of the first good delivered.

(a)

use the model withdrawal form set out in Annex I(B) or make any other clearly worded statement; or

(b)

return the goods to the trader, accompanied by a clearly worded statement setting out the consumer’s decision to withdraw .

(a)

to perform the distance or off-premises contract, or

(a)

to perform the distance or off-premises contract, or

(b)

to conclude an off-premises contract, in cases where an offer was made by the consumer.

(b)

to conclude the distance or off-premises contract, in cases where an offer was made by the consumer.

(a)

services where performance has begun, with the consumer’s prior express consent, before the end of the fourteen day period referred to in Article 12;

(a)

services where performance has begun, with the consumer’s prior express consent on a durable medium , before the end of the fourteen day period referred to in Article 12; in such cases, the consent should also extend to waiving the consumer’s right of withdrawal;

(b)

the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader;

(b)

the supply of goods or services for which the price is dependent on fluctuations in the market which cannot be controlled by the trader and which might occur within the withdrawal period ;

(c)

the supply of goods made to the consumer’s specifications or clearly personalized or which are liable to deteriorate or expire rapidly;

(c)

the supply of goods made or services provided to the consumer’s specifications or clearly personalized , requiring the trader to make individual arrangements which he can make no other use of, or which are liable to deteriorate or expire rapidly;

(d)

the supply of wine, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place beyond the time-limit referred to in Article 22(1) and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;

(d)

the supply of:

—

foodstuffs,

—

beverages,

—

pharmaceuticals, or

—

other hygienically sensitive goods, whose packaging or sealing has already been opened by the consumer, after having been informed about the exclusion of the right of withdrawal;

(da)

contracts in respect of which the consumer, in order to respond to an immediate emergency, has requested immediate performance by the trader; if, on this occasion, the trader provides or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional goods or services;

(db)

contracts for which the consumer has specifically requested the trader to visit him at home for the purpose of carrying out repairs or maintenance; if, on the occasion of such a visit, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods;

(f)

the supply of newspapers, periodicals and magazines;

(f)

the supply of newspapers, periodicals and magazines with the exception of subscription contracts for the supply of such publications ;

(g)

gaming and lottery services;

(h)

contracts concluded at an auction.

(h)

contracts concluded at a public auction.

(ha)

the supply of digital content once the consumer has started to download that digital content.

(a)

contracts for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, selected in advance by the consumer by means of distance communication and physically supplied to the consumer’s home, residence or workplace by the trader who usually sells such goods on his own business premises;

(b)

contracts for which the consumer, in order to respond to an immediate emergency, has requested the immediate performance of the contract by the trader; if, on this occasion, the trader provides or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional services or goods;

(c)

contracts for which the consumer has specifically requested the trader, by means of distance communication, to visit his home for the purpose of repairing or performing maintenance upon his property; if on this occasion, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods.

(a)

for the sale of immovable property or relating to other immovable property rights, except for rental and works relating to immovable property;

(b)

concluded by means of automatic vending machines or automated commercial premises;

(c)

concluded with telecommunications operators through public payphones for their use;

(d)

for the supply of foodstuffs or beverages by a trader on frequent and regular rounds in the neighbourhood of his business premises.

(a)

insurance,

(b)

financial services whose price depends on fluctuations in the financial market outside the trader’s control, which may occur during the withdrawal period, as defined in Article 6(2)(a) of Directive 2002/65/EC and

(c)

credit which falls within the scope of Directive 2008/48/EC.

(a)

they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model ;

(a)

they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model , and

(b)

they are fit for any particular purpose for which the consumer requires them and which he made known to the trader at the time of the conclusion of the contract and which the trader has accepted;

(b)

they are fit , in the absence of an agreement on their characteristics, for the purpose for which the parties to the contract intended them at the time of the conclusion of the contract , and

(c)

they are fit for the purposes for which goods of the same type are normally used or

(c)

they are fit for the purposes for which goods of the same type would normally be used and they show the quality and performance which are normal in goods of the same type, taking into account inter alia the purpose, the appearance, the durability and the finish, and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling .

(d)

they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling .

(b)

by the time of conclusion of the contract the statement had been corrected;

(b)

by the time of conclusion of the contract the statement had been corrected in due time and in a manner equivalent to that in which it was made or at least prominently in the contract document ;

(a)

have the lack of conformity remedied by repair or replacement,

(a)

have the lack of conformity remedied by repair or replacement in accordance with paragraphs 2, 3 and 5 , or

(b)

have the price reduced,

(b)

a reasonable reduction in price or rescission of the contract in accordance with paragraphs 4, 5 and 5a.

(c)

have the contract rescinded.

(a)

in the light of what would be the value of the goods if there were no lack of conformity ,

(b)

taking into account the significance of the lack of conformity,

(c)

upon consideration of the question as to whether use could be made of other remedies (repair or replacement) without significant inconvenience for the consumer.

(a)

the trader has implicitly or explicitly refused to remedy the lack of conformity ;

(a)

the consumer is entitled neither to repair nor replacement ;

(aa)

the trader has refused explicitly or by his conduct to remedy the lack of conformity;

(b)

the trader has failed to remedy the lack of conformity within a reasonable time;

(b)

the trader has failed to remedy the lack of conformity within a reasonable time;

(c)

the trader has tried to remedy the lack of conformity, causing significant inconvenience to the consumer;

(c)

the trader has remedied the lack of conformity, causing significant inconvenience to the consumer.

(d)

the same defect has reappeared more than once within a short period of time.

(a)

legal rights of the consumer , as provided for in Article 26 and a clear statement that those rights are not affected by the commercial guarantee,

(a)

legal rights of the consumer under Articles 26 and 28, and the provisions of applicable national law, as well as a clear statement that those rights are not affected by the commercial guarantee,

(b)

set the contents of the commercial guarantee and the conditions for making claims, notably the duration, territorial scope and the name and address of the guarantor,

(b)

set the contents of the commercial guarantee and the conditions for making claims, notably the duration, territorial scope and the name and address of the guarantor,

(c)

without prejudice to Articles 32 and 35 and Annex III(1)(j), set out, where applicable, that the commercial guarantee cannot be transferred to a subsequent buyer.

(c)

the information that the commercial guarantee can be transferred to a subsequent buyer.