Consumer information, right of withdrawal and other consumer rights

SUMMARY OF:

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 aims to:

increase consumer protection by harmonising several key aspects of national legislation on contracts between consumers and traders;
encourage trade between European Union (EU) Member States, 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 the 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.

KEY POINTS

Scope

With some exceptions such as healthcare, social services and financial services (e.g. 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 a 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 lays down additional information obligations for the providers of online marketplaces regarding the contracts that consumers conclude with different suppliers on the online marketplace.

Information obligations

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, the delivery time, the performance and duration of the contract, and termination conditions.
In shops, information that is not already obvious must be provided.
Information requirements, particularly on the right of withdrawal, are more detailed for contracts concluded at a distance (such as online, by telephone or mail order) and for contracts concluded off-premises (e.g. where a trader visits a consumer’s home).
Amending Directive (EU) 2019/2161 adds to the directive specific information requirements for contracts concluded on online marketplaces. Online marketplaces must:
- inform consumers whether a third-party supplier is a trader or non-trader (i.e. another consumer);
- warn the consumer that EU consumer protection rules don’t apply 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 when the offered price is 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 perishable goods, sealed goods opened by the consumer that cannot be returned for health or hygiene reasons, and hotel reservations or car rentals that 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 for the use of a means of payment that are higher than the cost borne by the trader for the use of such means. In many cases, charging such fees is completely forbidden in accordance with the payment services directive (Directive (EU) 2015/2366 – see summary).
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.

Penalties

Directive 2011/83/EU requires Member States to introduce effective, proportionate and dissuasive penalties applicable to infringements of national rules transposing the directive.
Amending Directive (EU) 2019/2161 introduces a list of criteria to be applied when imposing the penalties. It also requires Member States to provide for the possibility to impose fines up to at least 4% of the trader’s annual turnover, or €2 million where information about the trader’s turnover is unavailable. Such fines must be available when Member States’ authorities act together on major cross-border infringements affecting consumers in several Member States in the context of the consumer protection cooperation network regulation (Regulation (EU) 2017/2394 – see summary).

FROM WHEN DO THE DIRECTIVES APPLY?

Directive 2011/83/EU applies to contracts concluded after 13 June 2014.

Amending Directive (EU) 2019/2161 had to become law in Member States by 28 November 2021 and applies from 28 May 2022.

BACKGROUND

For further information, see:

Consumer protection (European Commission)
Guidance on the interpretation and application of Directive 2011/83/EU
Factsheet – New Deal: What benefits will I get as a consumer? (European Commission).

KEY TERMS

Online marketplace. A service using software, including a website, part of a website or an application, operated by or on behalf of a trader that allows consumers to conclude distance contracts with other traders or consumers.

Price personalisation. Where a trader sets different prices for individual consumers or groups of consumers based on automated analysis of those consumers’ preferences and willingness to pay.

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, including a digital service, to the consumer.

Digital service. It is:

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 that are produced and supplied in digital form.

Personal data. Any information that relates to an identified or identifiable natural person.

Goods. They are:

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 interconnected 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).

MAIN DOCUMENTS

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).