Strengthening EU consumer rights
Directive 2011/83/EU on consumer rights
Directive (EU) 2019/2161 amending Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU as regards the better enforcement and modernisation of EU consumer protection rules
WHAT IS THE AIM OF THE DIRECTIVES?
Directive 2011/83/EU seeks to:
increase consumer protection by harmonising several key aspects of national legislation on contracts between customers and sellers;
encourage trade between EU countries, particularly for consumers buying online;
The directive replaced the distance selling directive (97/7/EC) and the doorstep selling directive (85/577/EEC).
Directive (EU) 2019/2161 on better enforcement and modernisation of EU consumer protection rules amends Directive 2011/83/EU. The amendments increase protection for EU consumers in several areas such as purchases through online marketplaces, transparency of price personalisation* and ranking of online offers and consumer rights when using ‘free’ online services.
With some exceptions such as package travel and holidays or financial services, such as consumer credit and insurance, Directive 2011/83/EU, as amended by Directive (EU) 2019/2161, covers a broad range of contracts concluded between traders and consumers, namely sales contracts*, service contracts*, contracts for online digital content and contracts for the supply of water, gas, electricity and district heating). It applies to contracts concluded in shops and to contracts concluded off-premises (e.g. at the consumer’s home) or at distance (e.g. online).
Amending Directive (EU) 2019/2161 extends the scope of Directive 2011/83/EU to cover contracts under which the trader supplies or undertakes to supply digital service* or digital content* to the consumer, and the consumer provides or undertakes to provide personal data*. It also clarifies the situation of products offered to consumers in online marketplaces*, where both the provider of the online marketplace and the third-party supplier are involved in providing the pre-contractual information required by Directive 2011/83/EU.
Before concluding a contract, traders must provide to consumers, in clear, understandable language, information, such as:
- their identity and contact details;
- the product’s main characteristics; and
- the conditions that apply, including payment terms, delivery time, performance and duration of the contract and termination conditions.
In shops, only information which is not already obvious must be provided.
Information requirements, particularly on the right of withdrawal, are more detailed for contracts concluded at distance (such as via post, telephone or online) and for contracts concluded off premises (e.g. where a trader visits a consumer’s home).
Amending Directive (EU) 2019/2161 includes a new article dealing with specific information requirements for contracts concluded on online marketplaces. Online marketplaces are required to inform consumers whether the third-party supplier is a trader or non-trader (a consumer), warn the consumer about the non-applicability of EU consumer-protection rules to contracts concluded with non-traders and explain who is responsible for the performance of the contract: the third-party trader or the online marketplace itself.
Also, amending Directive (EU) 2019/2161 requires traders to inform consumers whether the price was personalised on the basis of automated decision-making.
Right of withdrawal
Consumers can withdraw from distance and off-premises contracts within 14 days of the delivery of the goods* or the conclusion of the service contract, subject to certain exceptions, without any explanation or cost. A standard withdrawal form provided by the seller suffices. If the consumers are not made aware of their rights, the withdrawal period is extended by 12 months.
Exemptions apply in several circumstances, for example, for rapidly perishable goods, sealed goods opened by the consumer which cannot be returned for health or hygiene reasons, and hotel reservations or car rentals which are tied to specific dates. Exceptions also apply, under certain circumstances, for contracts for the supply of digital content which is not supplied on a tangible medium if the performance has begun.
When consumers withdraw from a contract, they must refrain from using the digital content or digital service and from making it available to third parties.
No unjustified payment costs or additional charges
Traders must not charge consumers fees that are more than the cost borne by the trader for the type of payment involved.
When phoning a trader to enquire or complain about the contract concluded, the consumer must not pay more than the basic telephone rate.
Traders must have a consumer’s express consent when offering additional paid-for services. Pre-ticked boxes on an order form may not be used for such payments.
Amending Directive (EU) 2019/2161 requires EU countries to introduce effective, proportionate and dissuasive penalties to punish traders who break national rules transposing the directive.
The amending Directive (EU) 2019/2161 introduces a list of criteria to be applied when imposing the penalties. It also requires EU countries to provide for the possibility to impose fines up to at least 4% of a trader’s turnover, or €2 million where information about the trader’s turnover is unavailable when, working together, they identify major cross-border infringements affecting consumers in several EU countries.
FROM WHEN DO THE DIRECTIVES APPLY?
Directive 2011/83/EU has applied since 12 December 2011 and had to become law in the EU countries by 13 December 2013. It applies to contracts concluded after 13 June 2014.
Amending Directive (EU) 2019/2161 has to become law in the EU countries by 28 November 2021 and applies from 28 May 2022.
For more information, see:
Price personalisation: where a seller/service provider can set prices that are personalised to different customers. This is increasingly being made possible with the development of big data and analytics, and is a form of price discrimination (where a seller can sell an identical product at different prices to different segments of the market). Personalised pricing occurs when firms set different prices for individual consumers, or individually tailor products given consumers’ preferences.
Sales contract: any contract under which the trader transfers or undertakes to transfer ownership of goods to the consumer, including any contract having as its object both goods and services.
Service contract: any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof.
- a service that allows the consumer to create, process, store or access data in digital form; or
- a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service.
Digital content: data which are produced and supplied in digital form.
Personal data: any information that relates to an identified or identifiable person.
Online marketplace: a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers.
- any physical movable items, including water, gas and electricity when sold in a limited volume or a set quantity;
- any physical movable items that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions (‘goods with digital elements’).
Directive 2011/83/EU of the European Parliament and of the Council of 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 (OJ L 304, 22.11.2011, pp. 64-88)
Successive amendments to Directive 2011/83/EU have been incorporated into the original text. This consolidated version is of documentary value only.
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules (OJ L 328, 18.12.2019, pp. 7-28)
Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ L 136, 22.5.2019, pp. 28-50)
Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (OJ L 136, 22.5.2019, pp. 1-27)
Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee — A New Deal for Consumers (COM(2018) 183 final, 11.4.2018)
Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, pp. 1-26)
See consolidated version.
Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (recast) (OJ L 26, 2.2.2016, pp. 19-59)
See consolidated version.
Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ L 326, 11.12.2015, pp. 1-33)
Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ L 133, 22.5.2008, pp. 66-92)
See consolidated version.
last update 21.02.2020