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Document 02002L0065-20180113
Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC
Consolidated text: Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC
Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC
02002L0065 — EN — 13.01.2018 — 003.001
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DIRECTIVE 2002/65/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 September 2002 (OJ L 271 9.10.2002, p. 16) |
Amended by:
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Official Journal |
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No |
page |
date |
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DIRECTIVE 2005/29/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 May 2005 |
L 149 |
22 |
11.6.2005 |
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DIRECTIVE 2007/64/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 November 2007 |
L 319 |
1 |
5.12.2007 |
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DIRECTIVE (EU) 2015/2366 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2015 |
L 337 |
35 |
23.12.2015 |
DIRECTIVE 2002/65/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 23 September 2002
concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC
Article 1
Object and scope
In case there is no initial service agreement but the successive operations or the separate operations of the same nature performed over time are performed between the same contractual parties, Articles 3 and 4 apply only when the first operation is performed. Where, however, no operation of the same nature is performed for more than one year, the next operation will be deemed to be the first in a new series of operations and, accordingly, Articles 3 and 4 shall apply.
Article 2
Definitions
For the purposes of this Directive:
‘distance contract’ means any contract concerning financial services concluded between a supplier and a consumer under an organised distance sales or service-provision scheme run by the supplier, who, for the purpose of that contract, makes exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
‘financial service’ means any service of a banking, credit, insurance, personal pension, investment or payment nature;
‘supplier’ means any natural or legal person, public or private, who, acting in his commercial or professional capacity, is the contractual provider of services subject to distance contracts;
‘consumer’ means any natural person who, in distance contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;
‘means of distance communication’ refers to any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the distance marketing of a service between those parties;
‘durable medium’ means any instrument which enables the consumer to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;
‘operator or supplier of a means of distance communication’ means any public or private, natural or legal person whose trade, business or profession involves making one or more means of distance communication available to suppliers.
Article 3
Information to the consumer prior to the conclusion of the distance contract
In good time before the consumer is bound by any distance contract or offer, he shall be provided with the following information concerning:
the identity and the main business of the supplier, the geographical address at which the supplier is established and any other geographical address relevant for the customer's relations with the supplier;
the identity of the representative of the supplier established in the consumer's Member State of residence and the geographical address relevant for the customer's relations with the representative, if such a representative exists;
when the consumer's dealings are with any professional other than the supplier, the identity of this professional, the capacity in which he is acting vis-à-vis the consumer, and the geographical address relevant for the customer's relations with this professional;
where the supplier is registered in a trade or similar public register, the trade register in which the supplier is entered and his registration number or an equivalent means of identification in that register;
where the supplier's activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority;
a description of the main characteristics of the financial service;
the total price to be paid by the consumer to the supplier for the financial service, including all related fees, charges and expenses, and all taxes paid via the supplier or, when an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it;
where relevant notice indicating that the financial service is related to instruments involving special risks related to their specific features or the operations to be executed or whose price depends on fluctuations in the financial markets outside the supplier's control and that historical performances are no indicators for future performances;
notice of the possibility that other taxes and/or costs may exist that are not paid via the supplier or imposed by him;
any limitations of the period for which the information provided is valid;
the arrangements for payment and for performance;
any specific additional cost for the consumer of using the means of distance communication, if such additional cost is charged;
the existence or absence of a right of withdrawal in accordance with Article 6 and, where the right of withdrawal exists, its duration and the conditions for exercising it, including information on the amount which the consumer may be required to pay on the basis of Article 7(1), as well as the consequences of non-exercise of that right;
the minimum duration of the distance contract in the case of financial services to be performed permanently or recurrently;
information on any rights the parties may have to terminate the contract early or unilaterally by virtue of the terms of the distance contract, including any penalties imposed by the contract in such cases;
practical instructions for exercising the right of withdrawal indicating, inter alia, the address to which the notification of a withdrawal should be sent;
the Member State or States whose laws are taken by the supplier as a basis for the establishment of relations with the consumer prior to the conclusion of the distance contract;
any contractual clause on law applicable to the distance contract and/or on competent court;
in which language, or languages, the contractual terms and conditions, and the prior information referred to in this Article are supplied, and furthermore in which language, or languages, the supplier, with the agreement of the consumer, undertakes to communicate during the duration of this distance contract;
whether or not there is an out-of-court complaint and redress mechanism for the consumer that is party to the distance contract and, if so, the methods for having access to it;
the existence of guarantee funds or other compensation arrangements, not covered by Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit guarantee schemes ( 1 ) and Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor compensation schemes ( 2 ).
In the case of voice telephony communications
the identity of the supplier and the commercial purpose of the call initiated by the supplier shall be made explicitly clear at the beginning of any conversation with the consumer;
subject to the explicit consent of the consumer only the following information needs to be given:
The supplier shall inform the consumer that other information is available on request and of what nature this information is. In any case the supplier shall provide the full information when he fulfils his obligations under Article 5.
Article 4
Additional information requirements
Article 5
Communication of the contractual terms and conditions and of the prior information
Article 6
Right of withdrawal
The period for withdrawal shall begin:
Member States, in addition to the right of withdrawal, may provide that the enforceability of contracts relating to investment services is suspended for the same period provided for in this paragraph.
The right of withdrawal shall not apply to:
financial services whose price depends on fluctuations in the financial market outside the suppliers control, which may occur during the withdrawal period, such as services related to:
travel and baggage insurance policies or similar short-term insurance policies of less than one month's duration;
contracts whose performance has been fully completed by both parties at the consumer's express request before the consumer exercises his right of withdrawal.
Member States may provide that the right of withdrawal shall not apply to:
any credit intended primarily for the purpose of acquiring or retaining property rights in land or in an existing or projected building, or for the purpose of renovating or improving a building, or
any credit secured either by mortgage on immovable property or by a right related to immovable property, or
declarations by consumers using the services of an official, provided that the official confirms that the consumer is guaranteed the rights under Article 5(1).
This paragraph shall be without prejudice to the right to a reflection time to the benefit of the consumers that are resident in those Member States where it exists, at the time of the adoption of this Directive.
If to a distance contract of a given financial service another distance contract has been attached concerning services provided by the supplier or by a third party on the basis of an agreement between the third party and the supplier, this additional distance contract shall be cancelled, without any penalty, if the consumer exercises his right of withdrawal as provided for in Article 6(1).
Article 7
Payment of the service provided before withdrawal
When the consumer exercises his right of withdrawal under Article 6(1) he may only be required to pay, without any undue delay, for the service actually provided by the supplier in accordance with the contract. The performance of the contract may only begin after the consumer has given his approval. The amount payable shall not:
▼M2 —————
Article 9
Given the prohibition of inertia selling practices laid down in Directive 2005/29/EC of 11 May 2005 of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market ( 5 ) and without prejudice to the provisions of Member States' legislation on the tacit renewal of distance contracts, when such rules permit tacit renewal, Member States shall take measures to exempt the consumer from any obligation in the event of unsolicited supplies, the absence of a reply not constituting consent.
Article 10
Unsolicited communications
The use by a supplier of the following distance communication techniques shall require the consumer's prior consent:
automated calling systems without human intervention (automatic calling machines);
fax machines.
Member States shall ensure that means of distance communication other than those referred to in paragraph 1, when they allow individual communications:
shall not be authorised unless the consent of the consumers concerned has been obtained, or
may only be used if the consumer has not expressed his manifest objection.
Article 11
Sanctions
Member States shall provide for appropriate sanctions in the event of the supplier's failure to comply with national provisions adopted pursuant to this Directive.
They may provide for this purpose in particular that the consumer may cancel the contract at any time, free of charge and without penalty.
These sanctions must be effective, proportional and dissuasive.
Article 12
Imperative nature of this Directive's provisions
Article 13
Judicial and administrative redress
The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action in accordance with national law before the courts or competent administrative bodies to ensure that the national provisions for the implementation of this Directive are applied:
public bodies or their representatives;
consumer organisations having a legitimate interest in protecting consumers;
professional organisations having a legitimate interest in acting.
Article 14
Out-of-court redress
Article 15
Burden of proof
Without prejudice to Article 7(3), Member States may stipulate that the burden of proof in respect of the supplier's obligations to inform the consumer and the consumer's consent to conclusion of the contract and, where appropriate, its performance, can be placed on the supplier.
Any contractual term or condition providing that the burden of proof of the respect by the supplier of all or part of the obligations incumbent on him pursuant to this Directive should lie with the consumer shall be an unfair term within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts ( 6 ).
Article 16
Transitional measures
Member States may impose national rules which are in conformity with this Directive on suppliers established in a Member State which has not yet transposed this Directive and whose law has no obligations corresponding to those provided for in this Directive.
Article 17
Directive 90/619/EC
In Article 15(1) of Directive 90/619/EEC the first subparagraph shall be replaced by the following:
Article 18
Directive 97/7/EC
Directive 97/7/EC is hereby amended as follows:
the first indent of Article 3(1) shall be replaced by the following:
relating to any financial service to which Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC ( *1 ) applies,
Annex II shall be deleted.
Article 19
Directive 98/27/EC
The following point shall be added to the Annex of Directive 98/27/EC:
‘11. Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC ( *2 ).
Article 20
Review
Article 21
Transposition
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
Article 22
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
Article 23
Addressees
This Directive is addressed to the Member States.
( 1 ) OJ L 135, 31.5.1994, p. 5.
( 2 ) OJ L 84, 26.3.1997, p. 22.
( 3 ) Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market and amending Directives 2002/65/EC, 2009/110/EC, 2013/36/EU and Regulation (EU) No 1093/2010 and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).
( 4 ) OJ L 280, 29.10.1994, p. 83.
( 5 ) OJ L 149, 11.6.2005, p. 22.
( 6 ) OJ L 95, 21.4.1993, p. 29.
( *1 ) OJ L 271, 9.10.2002, p. 16.’;
( *2 ) OJ L 271, 9.10.2002, p. 16.’