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Comparative Tablebetween the existing acquis provisionsand the corresponding provisions of the proposal on a
Common European Sales Law
Table I: Consumer Rights Directive (CRD): mainly full harmonisation directive + options for MS
Existing acquis provision
- underlined text does not have an equivalent
in the CESL, most often because of the
differences in scope
Corresponding provisions of the draft proposal:
the Regulation (CESLR) and the Annex I
(CESL)
- underlined text does not have an equivalent in
the acquis, most often because it provides for
higher levels of consumer protection
Level of protection
in the CESL
compared to the
acquis(+ or =) and
other comments:
Scope rules and
options left to
the Member
States by the
ConsumerRights Directive
Article 2 CRD
(5) "sales contract" means any contract under
which the trader transfers or undertakes to
transfer the ownership of goods to the
consumer and the consumer pays or undertakesto pay the price thereof, including any contract
having as its object both goods and services;
(4) "goods made to the consumer's
specifications" means non-prefabricated goods
made on the basis of an individual choice of ordecision by the consumer;
Article 2(k) CESLR
'sales contract': means any contract under which
the trader ('the seller')
transfers or undertakes to transfer the ownership of
goods to another person('the buyer'), and the buyer pays or undertakes to
pay the price thereof; it
includes a contract for the supply of goods to be
manufactured or produced and excludes contracts
for the sale on execution or otherwise involving theexercise of public authority;
(=) The proposal
uses the broader
concept of "goods to
be manufactured or
produced" instead of"goods made to the
consumer's
specification" (in
line with Directive
99/44). The wordingof "goods made to
the consumer'sspecifications is
used in Chapter 4 on
Right of
Withdrawal.
(6) "service contract" means any contract
other than a sales contract under which thetrader supplies or undertakes to supply a
service to the consumer and the consumer pays
(m) "related service"means any service related to
goods or digital content, such as installation,maintenance, repair or any other processing,
CESL does not
cover servicecontracts as such,
but only a few
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or undertakes to pay the price thereof; provided by the seller of the goods or the supplier
of the digital content under the sales contract, thecontract for the supply of digital content or a
separate related service contract which wasconcluded at the same time as the sales contract or
the contract for the supply of digital content; itexcludes: (i) transport services, (ii) training
services, (iii) telecommunications support services;and (iv) financial services;
related services
which fulfil thecriteria in this
definition.
(11) "digital content" means data which are
produced and supplied in digital form;
(j) digital contentmeans data which is produced
and supplied in digital form,whether or not according to the consumer's
specifications; it excludes digital content pertaining
to:
(a) financial services including online banking
services;(b) legal or financial advice provided in electronic
form
(c) electronic healthcare services;(d) electronic communications services and
networks, and associatedfacilities and services;(e) gambling;
(f) the provision of social networking services; and(g) the creation of new digital content and the
amendment of existing digital
content by consumers or any other interaction withthe creations of other users;
Changes are due to
the largersubstantive scope of
CESL: only those
digital content
products for which
the sales remediesfit are covered bythe CESL.
(12) "financial service" means any service of a
banking, credit, insurance, personal pension,
investment or payment nature;
Financial services are excluded from the scope, see
Article 2(m)(iv) CESLR. However, a specific
definition was not considered to be necessary.
(=) financial
services are also
excluded from the
scope of the CRD,
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see Art 3.3 (d).
Definitions Art. 2(1) "consumer": means any natural person
who, in contracts covered by this Directive, isacting for purposes which are outside his trade,
business, craft or profession.
(2) "trader" means any natural person or any
legal person, irrespective of whether privately
or publicly owned, who is acting, includingthrough any other person acting in his name or
on his behalf, for purposes relating to his trade,
business, craft or profession in relation to
contracts covered by this Directive;
Art. 2 CESLR
(f) 'consumer': means any natural person who is
acting for purposes which are outside that person'strade, business, craft, or profession;
(e) 'trader': means any natural person or any legal
person who is acting for
purposes relating to that persons trade, business,craft, or profession;
(=)
(=) CESL does not
regulate
representation anddid not want to give
that impression by
including criteria
which are used in
national legal ordersto determine
representation.Therefore, in order
to achieve the sameresult, where
relevant, a referenceis made in therespective
provisions to "thetrader or, in case the
trader is a legal
person, a naturalperson representingthe trader" (for
instance Article2(p)).
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(3) "goods" means any tangible movable items,
with the exception of items sold by way ofexecution or otherwise by authority of law;
water, gas and electricity shall be considered asgoods within the meaning of this Directive
where they are put up for sale in a limitedvolume or a set quantity;
(7) "distance contract" means any contract
concluded between the trader and the consumerunder an organised distance sales or service-
provision scheme without the simultaneous
physical presence of the trader and the
consumer, with the exclusive use of one or
more means of distance communication up to
and including the time at which the contract is
concluded;
(8) "off-premises contract" means any
contract between the trader and the consumer:
(h) 'goods' means any tangible movable items; it
excludes:(i) electricity and natural gas; and
(ii) water and other types of gas unless they are putup for sale in a limited volume or set quantity;
(p) 'distance contract'means any contract between
the trader and the consumer under an organiseddistance sales scheme concluded without the
simultaneous physical presence of the trader or, in
case the trader is a legal person, a natural person
representing the trader and the consumer, with the
exclusive use of one or more means of distance
communication up to and including the time at
which the contract is concluded;
(q) 'off-premises contract'means any contract
between a trader and a consumer:
(=) the proposal
does not coverelectricity and
natural gas put upfor sale in a limited
volume or quantitysince these do not
have a cross-borderrelevance.The definition of
"sales contracts"excludes items sold
by way of executionor authority of law.
(=)
See explanation
under definition of
"trader".
(=)
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(a) concluded in the simultaneous physical
presence of the trader and the consumer, in aplace which is not the business premises of the
trader;(b) for which an offer was made by the
consumer in the same circumstances, asreferred to in point (a);
(c) concluded on the business premises ofthe trader or through any means of distancecommunication immediately after the consumer
was personally and individually addressed in aplace which is not the business premises of the
trader in the simultaneous physical presence ofthe trader and the consumer; or
(d) concluded during an excursionorganised by the trader with the aim or effect of
promoting and selling goods or services to theconsumer;
(9) "business premises" means:
(a) any immovable retail premises where
the trader carries out his activity on a
permanent basis; or
(i) concluded in the simultaneous physical presence
of the trader or, in case the trader is a legal person,the natural person representing the trader and the
consumer in a place which is not the trader'sbusiness premises, or
concluded on the basis of an offer made by theconsumer in the same
circumstances; or(ii) concluded on the trader's business premises orthrough any means of
distance communication immediately after theconsumer was personally
and individually addressed in a place which is notthe trader's business
premises in the simultaneous physical presence ofthe trader or, in case
the trader is a legal person, a natural personrepresenting the trader and
the consumer; or
(iii) concluded during an excursion organised by thetrader or, in case the
trader is a legal person, the natural person
representing the trader with the
aim or effect of promoting and selling goods or
supplying digital content or services to the
consumer;
(r) 'business premises'means:
(i) any immovable retail premises where a trader
carries out activity on a
permanent basis, or
See explanation
under definition of"trader".
(=)
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in the guarantee statement or in the relevant
advertising available at the time of, or beforethe conclusion of the contract;
(15) "ancillary contract" means a contract by
which the consumer acquires goods or servicesrelated to a distance contract or an off-premises
contract and where those goods are supplied orthose services are provided by the trader or by athird party on the basis of an arrangement
between that third party and the trader.
statement or in the relevant advertising available at
the time of, or before the conclusion of the contract;
Art. 46, paragraph 1, 2nd
sentence CESL:
an ancillary contract means a contract by whicha consumer acquires goods, digital content or
related services in connexion to a distance contractor an off-premises contract and these goods, digitalcontent or related services are provided by the
trader or a third party on the basis of anarrangement between that third party and the trader.
(=)
Information
requirements for
distance and off-premises
contracts
Art. 6(1)-(6) Information requirements for
distance and off-premises contracts
1. Before the consumer is bound by adistance or off-premises contract, or anycorresponding offer, the trader shall
provide the consumer with the followinginformation in a clear and comprehensible
manner:
(a) the main characteristics of the goods orservices, to the extent appropriate to the
medium and to the goods or services;
(b) the identity of the trader, such as his
trading name;
(c) the geographical address at which the
trader is established and the traderstelephone number, fax number and e-mailaddress, where available, to enable the
consumer to contact the trader quickly and
Art. 13 Duty to provide information when
concluding a distance or off-premises contract
1. A trader concluding a distance contract or off-
premises contract has a duty to provide thefollowing information to the consumer, in a clearand comprehensible manner before the contract is
concluded or the consumer is bound by any offer:
(a) the main characteristics of the goods,digital content or related services tobe supplied, to an extent appropriate
to the medium of communication and
to the goods, digital content or
related services;
(b) the total price and additional chargesand costs, in accordance with Article
14;
(c) the identity and address of the trader,
(=)
The substance of the
informationrequirements is the
same in both CESLand CRD. The
drafting and thepresentation of the
informationrequirements havebeen adapted in
order to ensure thedirect applicability
and user-friendlinessof the provisions of
a Regulation for theintended users of
this instrument. Inthis sense, the CRDrequirements have
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communicate with him efficiently and,
where applicable, the geographical addressand identity of the trader on whose behalf
he is acting;
(d) if different from the address provided
in accordance with point (c), thegeographical address of the place of
business of the trader, and, whereapplicable, that of the trader on whose
behalf he is acting, where the consumer
can address any complaints;
(e) the total price of the goods or servicesinclusive of taxes, or where the nature of
the goods or services is such that the pricecannot reasonably be calculated in
advance, the manner in which the price isto be calculated, as well as, where
applicable, all additional freight, deliveryor postal charges and any other costs or,where those charges cannot reasonably be
calculated in advance, the fact that suchadditional charges may be payable. In the
case of a contract of indeterminateduration or a contract containing a
subscription, the total price shall includethe total costs per billing period. Where
such contracts are charged at a fixed rate,the total price shall also mean the total
monthly costs. Where the total costs
cannot be reasonably calculated inadvance, the manner in which the price is
in accordance with Article 15;
(d) the contract terms, in accordancewith Article 16;
(e)
the rights of withdrawal, inaccordance with Article 17;
(f) where applicable, the existence andthe conditions of the trader's after-
sale customer assistance, after-saleservices, commercial guarantees andcomplaints handling policy;
(g) where applicable, the possibility ofhaving recourse to an Alternative
Dispute Resolution mechanism towhich the trader is subject and the
methods for having access to it;
(h) where applicable, the functionality,including applicable technicalprotection measures, of digital
content; and
(i) where applicable, any relevantinteroperability of digital content
with hardware and software whichthe trader is aware of or can be
expected to have been aware of.
2. The information provided, except for the
addresses required by point (c) of paragraph 1,
been
"contractualised" inthe CESL.
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to be calculated shall be provided;
(f) the cost of using the means of distance
communication for the conclusion of thecontract where that cost is calculated otherthan at the basic rate;
(g) the arrangements for payment,delivery, performance, the time by whichthe trader undertakes to deliver the goods
or to perform the services and, whereapplicable, the traders complaint handling
policy;
(h) where a right of withdrawal exists, the
conditions, time limit and procedures forexercising that right in accordance with
Article 11(1), as well as the modelwithdrawal form set out in Annex I(B);
(i) where applicable, that the consumerwill have to bear the cost of returning the
goods in case of withdrawal and, fordistance contracts, if the goods, by their
nature, cannot normally be returned by
post, the cost of returning the goods;
(j) that, if the consumer exercises the rightof withdrawal after having made a request
in accordance with Article 7(3) or Article8(8), the consumer shall be liable to paythe trader reasonable costs in accordance
with Article 14(3);
(k) where a right of withdrawal is not
forms an integral part of the contract and shall not
be altered unless the parties expressly agreeotherwise.
Article 14Information about price and additional charges
and costs
1. The information to be provided under point (b) of
Article 13 (1) must include:
(a) the total price of the goods, digitalcontent or related services, inclusive of
taxes, or where the nature of the goods,digital content or related services is such
that the price cannot reasonably becalculated in advance, the manner in which
the price is to be calculated; and
(b) where applicable, any additional
freight, delivery or postal charges and anyother costs or, where these cannot
reasonably be calculated in advance, thefact that such additional charges and costsmay be payable.
2. In the case of a contract of indeterminate durationor a contract containing a subscription, the total
price must include the total price per billing period.Where such contracts are charged at a fixed rate, the
total price must include the total monthly price.Where the total price cannot be reasonably
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provided for in accordance with Article 16,
the information that the consumer will notbenefit from a right of withdrawal or,
where applicable, the circumstances underwhich the consumer loses his right of
withdrawal;(l) a reminder of the existence of a legal
guarantee of conformity for goods;
(m) where applicable, the existence andthe conditions of after sale customer
assistance, after-sales services and
commercial guarantees;
(n) the existence of relevant codes ofconduct, as defined in point (f) of Article 2
of Directive 2005/29/EC, and how copiesof them can be obtained, where applicable;
(o) the duration of the contract, whereapplicable, or, if the contract is of
indeterminate duration or is to be extendedautomatically, the conditions for
terminating the contract;
(p) where applicable, the minimum
duration of the consumers obligationsunder the contract;
(q) 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;
(r) where applicable, the functionality,
calculated in advance, the manner in which the
price is to be calculated must be provided.
3. Where applicable, the trader must inform the
consumer of the cost of using the means of distance
communication for the conclusion of the contractwhere that cost is calculated other than at the basicrate.
Article 15Information about the identity and address of the
trader
The information to be provided under point (c) ofArticle 13 (1) must include:
(a) the identity of the trader, such as its tradingname;
(b) the geographical address at which thetrader is established;
(c) the telephone number, fax number and e-mail address of the trader, where available,
to enable the consumer to contact thetrader quickly and communicate with the
trader efficiently;
(d) where applicable, the identity andgeographical address of any other trader on
whose behalf the trader is acting; and
(e) where different from the address given
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including applicable technical protection
measures, of digital content;
(s) where applicable, any relevantinteroperability of digital content withhardware and software that the trader is
aware of or can reasonably be expected tohave been aware of;
(t) where applicable, the possibility of
having recourse to an out-of-courtcomplaint and redress mechanism, to
which the trader is subject, and the
methods for having access to it.
2. Paragraph 1 shall also apply to contractsfor the supply of water, gas or electricity,
where they are not put up for sale in alimited volume or set quantity, of districtheating or of digital content which is not
supplied on a tangible medium.
3. In the case of a public auction, theinformation referred to in points (b), (c)
and (d) of paragraph 1 may be replaced by
the equivalent details for the auctioneer.
4. The information referred to in points(h), (i) and (j) of paragraph 1 may be
provided by means of the modelinstructions on withdrawal set out inAnnex I(A). The trader shall have fulfilled
the information requirements laid down inpoints (h), (i) and (j) of paragraph 1 if he
has supplied these instructions to the
pursuant to points (b) and (d) of this
Article, the geographical address of thetrader, and where applicable that of the
trader on whose behalf it is acting, wherethe consumer can address any complaints.
Article 16
Information about the contract terms
The information to be provided under point (d) of
Article 13 (1) must include:
(a) the arrangements for payment, delivery of
the goods, supply of the digital content orperformance of the related services and the
time by which the trader undertakes to
deliver the goods, to supply the digitalcontent or to perform the related services;
(b) where applicable, the duration of the
contract, the minimum duration of theconsumer's obligations or, if the contract is
of indeterminate duration or is to be
extended automatically, the conditions forterminating the contract; and
(c) where applicable, the existence and
conditions for deposits or other financialguarantees to be paid or provided by theconsumer at the request of the trader;
(d) where applicable, the existence of relevantcodes of conduct and how copies of them
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consumer, correctly filled in.
5. The information referred to in paragraph
1 shall form an integral part of the distanceor off-premises contract and shall not bealtered unless the contracting parties
expressly agree otherwise.
can be obtained.
Article 17Information about rights of withdrawal when
concluding a distance or off-premises contract
1. Where the consumer has a right of withdrawal
under Chapter 4, the information to be providedunder point (e) of Article 13 (1) must include the
conditions, time limit and procedures for exercisingthat right in accordance with Appendix 1, as well asthe model withdrawal form set out in Appendix 2.
2. Where applicable, the information to be providedunder point (e) of Article 13(1) must include the
fact that the consumer will have to bear the cost ofreturning the goods in case of withdrawal and, for
distance contracts, that the consumer will have tobear the cost of returning the goods in the event of
withdrawal if the goods by their nature cannot benormally returned by post.
3. Where the consumer can exercise the right ofwithdrawal after having made a request for theprovision of related services to begin during the
withdrawal period, the information to be provided
under point (e) of Article 13(1) must include thefact that the consumer would be liable to pay thetrader the amount referred to in Article 45 (5).
4. The duty to provide the information required byparagraphs 1, 2 and 3 may be fulfilled by supplying
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the Model instructions on withdrawal set out in
Appendix 1 to the consumer. The trader will bedeemed to have fulfilled these information
requirements if he has supplied these instructions tothe consumer correctly filled in.
5. Where a right of withdrawal is not provided forin accordance with points (c) to (i) of Article 40 (2)
and paragraph 3 of that Article, the information tobe provided under point (e) of Article 13 (1) must
include a statement that the consumer will not
benefit from a right of withdrawal or, whereapplicable, the circumstances under which the
consumer loses the right of withdrawal.
Annex II Standard Information Notice: contains
the requirement that traders give consumers areminder of the legal guarantee as well as other coreconsumer rights.
Formal
requirements for
off-premisescontracts
Art. 7 Formal requirements for off-premises
contracts
1. With respect to off-premises contracts,the trader shall give the informationprovided for in Article 6(1) to the
consumer on paper or, if the consumer
agrees, on another durable medium. That
information shall be legible and in plain,intelligible language.
2. The trader shall provide the consumerwith a copy of the signed contract or theconfirmation of the contract on paper or, if
Art. 13 (4)
For an off-premises contract, the information
required by this Article must:
(a) be given on paper or, if the consumeragrees, on another durable medium; and
(b) be legible and in plain, intelligiblelanguage.
Art. 18
(=)
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the consumer agrees, on another durable
medium, including, where applicable, theconfirmation of the consumers prior
express consent and acknowledgement inaccordance with point (m) of Article 16.
3. Where a consumer wants theperformance of services or the supply of
water, gas or electricity, where they are notput up for sale in a limited volume or set
quantity, or of district heating to begin
during the withdrawal period provided for
in Article 9(2), the trader shall require that
the consumer makes such an express
request on a durable medium.
4. With respect to off-premises contracts
where the consumer has explicitlyrequested the services of the trader for the
purpose of carrying out repairs ormaintenance for which the trader and theconsumer immediately perform their
contractual obligations and where thepayment to be made by the consumer does
not exceed EUR 200:
(a) the trader shall provide the consumer
with the information referred to in points
(b) and (c) of Article 6(1) and informationabout the price or the manner in which the
price is to be calculated together with an
estimate of the total price, on paper or, if
the consumer agrees, on another durable
medium. The trader shall provide the
Off-premises contracts: additional information
requirements and confirmation
1. The trader must provide the consumer witha copy of the signed contract or theconfirmation of the contract, including
where applicable, the confirmation of theconsumer's consent and acknowledgment
as provided for in point (d) of Article 40(3)
on paper or, if the consumer agrees, on adifferent durable medium.
2. Where the consumer wants the provision ofrelated services to begin during the
withdrawal period provided for in Article
42(2), the trader must require that theconsumer makes such an express requeston a durable medium.
Electricity and
natural gas, as wellas water and other
types of gas whichare not put up forsale in a limited
volume or setquantity are outside
the scope of theproposal.
Art. 7(4) CRD setsup an option for the
MS which has not
been exercised inthe CESL.
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information referred to in points (a), (h)
and (k) of Article 6(1), but may choose notto provide it on paper or another durable
medium if the consumer expressly agrees;
(b) the confirmation of the contract
provided in accordance with paragraph 2of this Article shall contain the information
provided for in Article 6(1).
Member States may decide not to applythis paragraph.
Formal
requirements for
distancecontracts
Art. 8
Formal requirements for distance
contracts
1. With respect to distance contracts, the
trader shall give the information providedfor in Article 6(1) or make that
information available to the consumer in away appropriate to the means of distance
communication used in plain andintelligible language. In so far as that
information is provided on a durable
medium, it shall be legible.
2. If a distance contract to be concluded by
electronic means places the consumer
under an obligation to pay, the trader shallmake the consumer aware in a clear and
prominent manner, and directly before the
consumer places his order, of the
information provided for in points (a), (e),
Art. 13(3)
For a distance contract, the information required by
this Article must:
(a) be given or made available to the consumer in away that is appropriate to the means of distancecommunication used;
(b) be in plain and intelligible language; and
(c) insofar as it is provided on a durable medium, be
legible.
Article 19
Distance contracts: additional information and
other requirements
1. When a trader makes a telephone call to aconsumer, with a view to concluding a distancecontract, the trader must, at the beginning of the
conversation with the consumer, disclose its identity
(=)
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(o) and (p) of Article 6(1).
The trader shall ensure that the consumer,
when placing his order, explicitlyacknowledges that the order implies anobligation to pay. If placing an order
entails activating a button or a similarfunction, the button or similar function
shall be labelled in an easily legiblemanner only with the words "order with
obligation to pay" or a corresponding
unambiguous formulation indicating that
placing the order entails an obligation to
pay the trader. If the trader has not
complied with this subparagraph, theconsumer shall not be bound by the
contract or order.
3. Trading websites shall indicate clearly
and legibly at the latest at the beginning ofthe ordering process whether any deliveryrestrictions apply and which means of
payment are accepted.
4. If the contract is concluded through a
means of distance communication which
allows limited space or time to display the
information, the trader shall provide, on
that particular means prior to theconclusion of such a contract, at least the
pre-contractual information regarding the
main characteristics of the goods or
services, the identity of the trader, the total
price, the right of withdrawal, the duration
and, where applicable, the identity of the person on
whose behalf it is making the call and thecommercial purpose of the call.
2. If the distance contract is concluded through a
means of distance communication which allows
limited space or time to display the information, thetrader must provide at least the information referred
to in paragraph 3 of this Article on that particularmeans prior to the conclusion of such a contract.
The other information referred to in Article 13 shall
be provided by the trader to the consumer in anappropriate way in accordance with Article 13(3).
3. The information required under paragraph 2 is:
(a) the main characteristics of the goods,
digital content or related services, as
required by point (a) of Article 13 (1);
(b) the identity of the trader, as required bypoint (a) of Article 15;
(c) the total price, including all itemsreferred to in point (b) of Article 13 (1) andArticle 14(1) and (2);
(d) the right of withdrawal; and
(e) where relevant, the duration of the
contract, and if the contract is for an
indefinite period, the requirements for
terminating the contract, referred to in
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of the contract and, if the contract is of
indeterminate duration, the conditions forterminating the contract, as referred to in
points (a), (b), (e), (h) and (o) of Article6(1). The other information referred to in
Article 6(1) shall be provided by the traderto the consumer in an appropriate way in
accordance with paragraph 1 of thisArticle.
5. Without prejudice to paragraph 4, if the
trader makes a telephone call to the
consumer with a view to concluding a
distance contract, he shall, at the beginning
of the conversation with the consumer,disclose his identity and, where applicable,
the identity of the person on whose behalf
he makes that call, and the commercial
purpose of the call.
6. Where a distance contract is to beconcluded by telephone, Member States
may provide that the trader has to confirmthe offer to the consumer who is bound
only once he has signed the offer or hassent his written consent. Member States
may also provide that such confirmationshave to be made on a durable medium.
7. The trader shall provide the consumer
with the confirmation of the contract
concluded, on a durable medium within a
reasonable time after the conclusion of the
distance contract, and at the latest at the
point (b) of Article 16.
4. A distance contract concluded by telephone is
valid only if the consumer has signed the offer or
has sent his written consent indicating the
agreement to conclude a contract. The trader must
provide the consumer with a confirmation of thatagreement on a durable medium.
5. The trader must give the consumer a
confirmation of the contract concluded, includingwhere applicable, of the consent and
acknowledgement of the consumer referred to in
point (d) of Article 40(3), and all the information
referred to in Article 13 on a durable medium. The
trader must give that information in reasonable time
after the conclusion of the distance contract, and atthe latest at the time of the delivery of the goods or
before the supply of digital content or the provisionof the related service begins, unless the information
has already been given to the consumer prior to theconclusion of the distance contract on a durablemedium.
6. Where the consumer wants the provision of
related services to begin during the withdrawal
period provided for in Article 42(2), the trader must
require that the consumer makes an express requestto that effect on a durable medium.
Article 25
Additional requirements in distance contracts
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time of the delivery of the goods or before
the performance of the service begins.That confirmation shall include:
(a) all the information referred to in Article6(1) unless the trader has already provided
that information to the consumer on adurable medium prior to the conclusion of
the distance contract; and
(b) where applicable, the confirmation ofthe consumers prior express consent and
acknowledgment in accordance with point
(m) of Article 16.
8. Where a consumer wants theperformance of services, or the supply ofwater, gas or electricity, where they are not
put up for sale in a limited volume or setquantity, or of district heating, to begin
during the withdrawal period provided forin Article 9(2), the trader shall require that
the consumer make an express request.
9. This Article shall be without prejudiceto the provisions on the conclusion of e-
contracts and the placing of e-orders set
out in Articles 9 and 11 of Directive2000/31/EC.
10. Member States shall not impose anyfurther formal pre-contractual information
requirements for the fulfilment of theinformation obligations laid down in this
concluded by electronic means
1. Where a distance contract which is concluded by
electronic means would oblige the consumer to
make a payment, the trader must make the
consumer aware in a clear and prominent manner,
and immediately before the consumer places theorder, of the information required by point (a) of
Article 13 (1), Article 14(1) and (2), and point (b)of Article 16.
2. The trader must ensure that the consumer, when
placing the order, explicitly acknowledges that the
order implies an obligation to pay. Where placing
an order entails activating a button or a similar
function, the button or similar function must be
labelled in an easily legible manner only with thewords "order with obligation to pay" or similar
unambiguous wording indicating that placing theorder entails an obligation to make a payment to the
trader. Where the trader has not complied with thisparagraph, the consumer is not bound by thecontract or order.
3. The trader must indicate clearly and legibly on its
trading website at the latest at the beginning of the
ordering process whether any delivery restrictions
apply and what means of payment are accepted.
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Directive.
Information
requirements forcontracts other
than distance and
off-premisescontracts
Art. 5
Information requirements for contracts
other than distance or off-premises
contracts
1. Before the consumer is bound by a
contract other than a distance or an off-premises contract, or any corresponding
offer, the trader shall provide the consumerwith the following information in a clear
and comprehensible manner, if that
information is not already apparent fromthe context:
(a) the main characteristics of the goods or
services, to the extent appropriate to themedium and to the goods or services;
(b) the identity of the trader, such as histrading name, the geographical address at
which he is established and his telephonenumber;
(c) the total price of the goods or services
inclusive of taxes, or where the nature of
the goods or services is such that the price
cannot reasonably be calculated in
advance, the manner in which the price isto be calculated, as well as, where
applicable, all additional freight, delivery
or postal charges or, where those charges
cannot reasonably be calculated in
advance, the fact that such additional
Art. 20
Duty to provide information when concluding
contracts other than distance and off-premises
contracts
3. In contracts other than distance and off-premises contracts, a trader has a duty toprovide the following information to the
consumer, in a clear and comprehensiblemanner before the contract is concluded or
the consumer is bound by any offer, if thatinformation is not already apparent from
the context:
(j) the main characteristics of the goods,digital content or related services to
be supplied, to an extent appropriateto the medium of communication and
to the goods, digital content orrelated services;
(k) the total price and additional chargesand costs, in accordance with Article
14(1);
(l) the identity of the trader, such as thetrader's trading name, the
geographical address at which it is
established and its telephone number;
(=)
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charges may be payable;
(d) where applicable, the arrangements for
payment, delivery, performance, the timeby which the trader undertakes to deliverthe goods or to perform the service, and
the traders complaint handling policy;
(e) in addition to a reminder of theexistence of a legal guarantee of
conformity for goods, the existence andthe conditions of after-sales services and
commercial guarantees, where applicable;
(f) the duration of the contract, where
applicable, or, if the contract is ofindeterminate duration or is to be extendedautomatically, the conditions for
terminating the contract;
(g) where applicable, the functionality,including applicable technical protection
measures, of digital content;
(h) where applicable, any relevant
interoperability of digital content withhardware and software that the trader is
aware of or can reasonably be expected tohave been aware of.
2. Paragraph 1 shall also apply to contractsfor the supply of water, gas or electricity,
where they are not put up for sale in a
limited volume or set quantity, of district
heating or of digital content which is not
(m) the contract terms in accordance withpoints (a) and (b) of Article 16;
(n) where applicable, the existence andthe conditions of the trader's after-
sale services, commercial guaranteesand complaints handling policy;
(o) where applicable, the functionality,including applicable technical
protection measures of digitalcontent; and
(p) where applicable, any relevantinteroperability of digital content
with hardware and software which
the trader is aware of or can beexpected to have been aware of.
4. This Article does not apply where thecontract involves a day-to-day transactionand is performed immediately at the time
of its conclusion.
Electricity and
natural gas, as well
as water and other
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supplied on a tangible medium.
3. Member States shall not be required to
apply paragraph 1 to contracts whichinvolve day-to-day transactions and whichare performed immediately at the time of
their conclusion.
4. Member States may adopt or maintainadditional pre-contractual information
requirements for contracts to which thisArticle applies.
types of gas which
are not put up forsale in a limited
volume or setquantity are outside
the scope of theproposal.
CESL does notallow MS to add
furtherrequirements.
Burden of proof Art. 6(9)
As regards compliance with the information
requirements laid down in this Chapter, theburden of proof shall be on the trader.
Art. 21
The trader bears the burden of proof that it has
provided the information required by this Section.
(+) The burden of
proof is on the trader
in both distance andoff-premises
contacts and incontracts other than
distance and off-premises, the latter
being regulated on aminimumharmonisation basis.
Breach of
information
duties
Art. 6( 6):
If the trader has not complied with the
information requirements on additional charges
or other costs as referred to in point (e) ofparagraph 1, or on the costs of returning the
goods as referred to in point (i) of paragraph 1,the consumer shall not bear those charges or
costs.
Art. 30 Remedies for breach of information duties
1. A party which has failed to comply with any duty
imposed by this Chapter is liable for any losscaused to the other party by such failure.
2. Where the trader has not complied with theinformation requirements relating to additional
charges or other costs as referred to in Article 14 oron the costs of returning the goods as referred to in
(+) concerning the
liability for breach,
which is not
harmonised in the
CRD
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Art. 10:
Omission of information on the right of
withdrawal
1. If the trader has not provided the consumerwith the information on the right of
withdrawal as required by point (h) of Article6(1), the withdrawal period shall expire 12
months from the end of the initial withdrawalperiod, as determined in accordance with
Article 9(2).
2. If the trader has provided the consumer
with the information provided for inparagraph 1 of this Article within 12 months
from the day referred to in Article 9(2), the
withdrawal period shall expire 14 days after
the day upon which the consumer receives
that information.
Article 17(2) the consumer is not liable to pay the
additional charges and other costs.
3. The remedies provided under this Article are
without prejudice to any remedy which may be
available under Article 42 (2), Article 48 or Article
49.
4. In relations between a trader and a consumer the
parties may not, to the detriment of the consumer,
exclude the application of this Article or derogatefrom or vary its effects.
Art. 42( 2):
Where the trader has not provided the consumer
with the information referred to in Article 17 (1),
the withdrawal period expires:
(a) after one year from the end of the initialwithdrawal period, as determined in
accordance with paragraph 1; or
(b) where the trader provides the consumerwith the information required within one
year from the end of the withdrawal periodas determined in accordance with
paragraph 1, after fourteen days from theday the consumer receives the information.
(=)
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Right of
withdrawal
Art. 9
Right of withdrawal
1. Save where the exceptions provided forin Article 16 apply, the consumer shall
have a period of 14 days to withdraw from
a distance or off-premises contract,without giving any reason, and withoutincurring any costs other than those
provided for in Article 13(2) and Article
14.
3. The Member States shall not prohibitthe contracting parties from performing
their contractual obligations during thewithdrawal period. Nevertheless, in the
case of off-premises contracts, Member
States may maintain existing nationallegislation prohibiting the trader fromcollecting the payment from the consumer
during the given period after theconclusion of the contract.
Article 40(1) Right to withdraw
1. During the period provided for in Article 42, theconsumer has a right to withdraw from the contract
without giving any reason, and at no cost to theconsumer except as provided in Article 45, from:
(a) a distance contract;
(b) an off-premises contract, provided that
the price or, where multiple contracts wereconcluded at the same time, the total price
of the contracts exceeds EUR 50 or the
equivalent sum in the currency agreed forthe contract price at the time of the
conclusion of the contract.
See alsoArticle 42(1) Withdrawal period
(=)
In some cases Art.9(3) CRD leaves
MS an option whichhas not been
exercised in the
CESL.
Exceptions Article 16 Exceptions from the right ofwithdrawal
Member States shall not provide for the
right of withdrawal set out in Articles 9 to15 in respect of distance and off-premises
contracts as regards the following:
(a) service contracts after the service hasbeen fully performed if the performance
Article 40
2. Paragraph 1 does not apply to:
(a) a contract concluded by means of anautomatic vending machine or automated
commercial premises;
(b) a contract for the supply of foodstuffs,beverages or other goods which are
(=)
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has begun with the consumers prior
express consent, and with theacknowledgement that he will lose his
right of withdrawal once the contract hasbeen fully performed by the trader;
(b) the supply of goods or services forwhich the price is dependent on
fluctuations in the financial market whichcannot be controlled by the trader and
which may occur within the withdrawal
period;
(c) the supply of goods made to theconsumers specifications or clearly
personalised;
(d) the supply of goods which are liable to
deteriorate or expire rapidly;
(e) the supply of sealed goods which arenot suitable for return due to health
protection or hygiene reasons and wereunsealed after delivery;
(f) the supply of goods which are, afterdelivery, according to their nature,
inseparably mixed with other items;
(g) the supply of alcoholic beverages, the
price of which has been agreed upon at thetime of the conclusion of the sales
contract, the delivery of which can only
take place after 30 days and the actual
value of which is dependent on
intended for current consumption in the
household and which are physicallysupplied by the trader on frequent and
regular rounds to the consumer's home,residence or workplace;
(c) a contract for the supply of goods orrelated services for which the price
depends on fluctuations in the financialmarket which cannot be controlled by the
trader and which may occur within the
withdrawal period;
(d) a contract for the supply of goods or
digital content which are made to the
consumers specifications, or are clearly
personalised;
(e) a contract for the supply of goods
which are liable to deteriorate or expire
rapidly;
(f) a contract for the supply of alcoholic
beverages, the price of which has beenagreed upon at the time of the conclusion
of the sales contract, the delivery of whichcan only take place after 30 days from the
time of conclusion of the contract and theactual value of which is dependent on
fluctuations in the market which cannot be
controlled by the trader;
(g) a contract for the sale of a newspaper,
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fluctuations in the market which cannot be
controlled by the trader;
(h) contracts where the consumer hasspecifically requested a visit from thetrader for the purpose of carrying out
urgent repairs or maintenance. If, on theoccasion of such visit, the trader provides
services in addition to those specificallyrequested by the consumer or goods other
than replacement parts necessarily used in
carrying out the maintenance or in making
the repairs, the right of withdrawal shall
apply to those additional services or goods;
(i) the supply of sealed audio or sealedvideo recordings or sealed computer
software which were unsealed afterdelivery;
(j) the supply of a newspaper, periodical ormagazine with the exception of
subscription contracts for the supply of
such publications;
(k) contracts concluded at a public auction;
(l) the provision of accommodation otherthan for residential purpose, transport of
goods, car rental services, catering orservices related to leisure activities if thecontract provides for a specific date or
period of performance;
(m) the supply of digital content which is
periodical or magazine with the exception
of subscription contracts for the supply ofsuch publications;
(h) a contract concluded at a public
auction; and
(i) a contract for catering or services
related to leisure activities which provides
for a specific date or period of
performance.
3. Paragraph 1 does not apply in the following
situations:
(a) where the goods supplied were sealed,
have been unsealed by the consumer and
are not then suitable for return due tohealth protection or hygiene reasons;
(b) where the goods supplied have,
according to their nature, been inseparablymixed with other items after delivery;
(c) where the goods supplied were sealedaudio or video recordings or computer
software and have been unsealed after
delivery;
(d) where the supply of digital content
which is not supplied on a tangible
medium has begun with the consumer's
prior express consent and with the
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not supplied on a tangible medium if the
performance has begun with theconsumers prior express consent and his
acknowledgment that he thereby loses hisright of withdrawal.
Art. 3, 3. (k): Directive does not apply tocontracts for the supply of foodstuffs,
beverages or other goods intended for currentconsumption in the household, and which are
physically supplied by a trader on frequent and
regular rounds to the consumer's home,residence or workplace;
Art. 3, 3. (l): Directive does not apply to
contracts concluded by means of automatic
vending machines or automated commercialpremises
acknowledgement by the consumer of
losing the right to withdraw;
(e) the consumer has specifically requested
a visit from the trader for the purpose of
carrying out urgent repairs or maintenance.
Where on the occasion of such a visit thetrader provides related services in addition
to those specifically requested by theconsumer or goods other than replacement
parts necessarily used in performing the
maintenance or in making the repairs, theright of withdrawal applies to those
additional related services or goods.
4. Where the consumer has made an offer which, if
accepted, would lead to the conclusion of a contractfrom which there would be a right to withdraw
under this Chapter, the consumer may withdraw theoffer even if it would otherwise be irrevocable.
Omission of
informationArticle 10 Omission of information on
the right of withdrawal
1. If the trader has not provided the
consumer with the information on the right
of withdrawal as required by point (h) of
Article 6(1), the withdrawal period shallexpire 12 months from the end of theinitial withdrawal period, as determined in
accordance with Article 9(2).
2. If the trader has provided the consumer
Article 42(2)
Where the trader has not provided the consumerwith the information referred to in Article 17 (1),the withdrawal period expires:
(a) after one year from the end of the initialwithdrawal period, as determined in
accordance with paragraph 1; or
(b) where the trader provides the consumer
with the information required within one
(=)
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with the information provided for in
paragraph 1 of this Article within 12months from the day referred to in Article
9(2), the withdrawal period shall expire 14days after the day upon which the
consumer receives that information.
year from the end of the withdrawal period
as determined in accordance withparagraph 1, after fourteen days from the
day the consumer receives the information.
Exercise right of
withdrawal
Art. 11 Exercise of the right of withdrawal
1. Before the expiry of the withdrawalperiod, the consumer shall inform the
trader of his decision to withdraw from thecontract. For this purpose, the consumer
may either:
(a) use the model withdrawal form as set
out in Annex I(B); or
(b) make any other unequivocal statement
setting out his decision to withdraw fromthe contract.
Member States shall not provide for any
formal requirements applicable to themodel withdrawal form other than those
set out in Annex I(B).
2. The consumer shall have exercised hisright of withdrawal within the withdrawal
period referred to in Article 9(2) and
Article 10 if the communicationconcerning the exercise of the right of
withdrawal is sent by the consumer before
that period has expired.
3. The trader may, in addition to the
Art. 41 Exercise of right to withdraw
1. The consumer may exercise the right to withdraw
at any time before the end of the period of
withdrawal provided for in Article 42.
2. The consumer exercises the right to withdraw by
notice to the trader. For this purpose, the consumer
may use either the Model withdrawal form set out
in Appendix 2 or any other unequivocal statementsetting out the decision to withdraw.
3. Where the trader gives the consumer the optionto withdraw electronically on its trading website,
and the consumer does so, the trader has a duty tocommunicate to the consumer an acknowledgement
of receipt of such a withdrawal on a durable
medium without delay. The trader is liable for any
loss caused to the other party by a breach of this
duty.
4. A communication of withdrawal is timely if sent
before the end of the withdrawal period.
5. The consumer bears the burden of proof that the
right of withdrawal has been exercised inaccordance with this Article.
(=)
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possibilities referred to in paragraph 1,
give the option to the consumer toelectronically fill in and submit either the
model withdrawal form set out in AnnexI(B) or any other unequivocal statement on
the traders website. In those cases the
trader shall communicate to the consumeran acknowledgement of receipt of such awithdrawal on a durable medium withoutdelay.
4. The burden of proof of exercising theright of withdrawal in accordance with this
Article shall be on the consumer.
Withdrawal
period
Art. 9(2)
Without prejudice to Article 10, the
withdrawal period referred to in paragraph1 of this Article shall expire after 14 days
from:
(a) in the case of service contracts, the dayof the conclusion of the contract;
(b) in the case of sales contracts, the day
on which the consumer or a third partyother than the carrier and indicated by the
consumer acquires physical possession ofthe goods or:
(i) in the case of multiple goods ordered by
the consumer in one order and delivered
separately, the day on which the consumer
or a third party other than the carrier and
indicated by the consumer acquires
Art. 42 Withdrawal period
1.The withdrawal period expires after fourteen days
from:
(a) the day on which the consumer hastaken delivery of the goods in the case of asales contract, including a sales contract
under which the seller also agrees toprovide related services;
(b) the day on which the consumer has
taken delivery of the last item in the case
of a contract for the sale of multiple goods
ordered by the consumer in one order anddelivered separately, including a contractunder which the seller also agrees to
provide related services;
(=)
The CESL uses asthe starting point of
the withdrawal
period the momentwhen the consumer
"takes delivery ofthe goods", which is
defined in Article
129 as the moment
where the buyer
does all the acts
which could be
expected in order toenable to seller toperform the
obligation to deliver
and takes over the
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physical possession of the last good;
(ii) in the case of delivery of a good
consisting of multiple lots or pieces, theday on which the consumer or a third partyother than the carrier and indicated by the
consumer acquires physical possession ofthe last lot or piece;
(iii) in the case of contracts for regular
delivery of goods during defined period oftime, the day on which the consumer or a
third party other than the carrier and
indicated by the consumer acquiresphysical possession of the first good;
(c) in the case of contracts for the supplyof water, gas or electricity, where they are
not put up for sale in a limited volume orset quantity, of district heating or of digital
content which is not supplied on a tangiblemedium, the day of the conclusion of the
contract.
(c) the day on which the consumer has
taken delivery of the last lot or piece in the
case of a contract where the goods consist
of multiple lots or pieces, including acontract under which the seller also agrees
to provide related services;
(d) the day on which the consumer has
taken delivery of the first item where thecontract is for regular delivery of goods
during a defined period of time, including a
contract under which the seller also agrees
to provide related services;
(e) the day of the conclusion of the contract
in the case of a contract for related services
concluded after the goods have beendelivered;
(f) the day when the consumer has taken
delivery of the tangible medium in
accordance with point (a) in the case of a
contract for the supply of digital contentwhere the digital content is supplied on a
tangible medium;
(g) the day of the conclusion of the
contract in the case of a contract where thedigital content is not supplied on a tangible
medium.
goods or the
documentsrepresenting the
goods or digitalcontent, as required
by the contract.
Effects of
withdrawal
Art. 12 Art. 43 Effects of withdrawal (=)
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Effects of withdrawal
The exercise of the right of withdrawalshall terminate the obligations of the
parties:
(a) to perform the distance or off-premisescontract; or
(b) to conclude the distance or off-premises contract, in cases where an offerwas made by the consumer.
Withdrawal terminates the obligations of both
parties under the contract:
(a) to perform the contract; or
(b) to conclude the contract in cases where anoffer was made by the consumer.
Obligation of thetrader in case of
withdrawal
Art. 13
Obligations of the trader in the event of
withdrawal
1. The trader shall reimburse all paymentsreceived from the consumer, including, if
applicable, the costs of delivery without
undue delay and in any event not later than14 days from the day on which he is
informed of the consumers decision to
withdraw from the contract in accordance
with Article 11.
The trader shall carry out the
reimbursement referred to in the firstsubparagraph using the same means ofpayment as the consumer used for the
initial transaction, unless the consumer hasexpressly agreed otherwise and provided
that the consumer does not incur any fees
Art. 44 Obligations of the trader in the event of
withdrawal
1. The trader must reimburse all payments receivedfrom the consumer, including, where applicable, the
costs of delivery without undue delay and in anyevent not later than fourteen days from the day on
which the trader is informed of the consumer'sdecision to withdraw from the contract in
accordance with Article 41. The trader must carryout such reimbursement using the same means of
payment as the consumer used for the initialtransaction, unless the consumer has expresslyagreed otherwise and provided that the consumer
does not incur any fees as a result of suchreimbursement.
2. Notwithstanding paragraph 1, the trader is notrequired to reimburse the supplementary costs, if
the consumer has expressly opted for a type ofdelivery other than the least expensive type of
(=)
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as a result of such reimbursement.
2. Notwithstanding paragraph 1, the trader
shall not be required to reimburse thesupplementary costs, if the consumer hasexpressly opted for a type of delivery other
than the least expensive type of standarddelivery offered by the trader.
3. Unless the trader has offered to collect
the goods himself, with regard to salescontracts, the trader may withhold the
reimbursement until he has received the
goods back, or until the consumer hassupplied evidence of having sent back the
goods, whichever is the earliest.
standard delivery offered by the trader.
3. In the case of a contract for the sale of goods, the
trader may withhold the reimbursement until it has
received the goods back, or the consumer has
supplied evidence of having sent back the goods,
whichever is earlier, unless the trader has offered tocollect the goods.
Obligation of the
consumer in caseof withdrawal
Article 14
Obligations of the consumer in the event
of withdrawal
1. Unless the trader has offered to collect
the goods himself, the consumer shall sendback the goods or hand them over to the
trader or to a person authorised by thetrader to receive the goods, without undue
delay and in any event not later than 14days from the day on which he has
communicated his decision to withdraw
from the contract to the trader in
accordance with Article 11. The deadline
Article 45 Obligations of the consumer in the
event of withdrawal
1. The consumer must send back the goods or hand
them over to the trader or to a person authorised bythe trader without undue delay and in any event not
later than fourteen days from the day on which theconsumer communicates the decision to withdraw
from the contract to the trader in accordance with
Article 41, unless the trader has offered to collectthe goods. This deadline is met if the consumer
sends back the goods before the period of fourteendays has expired.
2. The consumer must bear the direct costs of
(=)
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shall be met if the consumer sends back
the goods before the period of 14 days hasexpired.
The consumer shall only bear the directcost of returning the goods unless the
trader has agreed to bear them or the traderfailed to inform the consumer that the
consumer has to bear them.
In off-premises contracts where the goodshave been delivered to the consumers
home at the time of the conclusion of the
contract, the trader shall at his ownexpense collect the goods if, by their
nature, those goods cannot normally bereturned by post.2. The consumer shall
only be liable for any diminished value ofthe goods resulting from the handling of
the goods other than what is necessary toestablish the nature, characteristics andfunctioning of the goods. The consumer
shall in any event not be liable fordiminished value of the goods where the
trader has failed to provide notice of theright of withdrawal in accordance with
point (h) of Article 6(1).(See Article 44(4)CESL).
3. Where a consumer exercises the right of
withdrawal after having made a request in
accordance with Article 7(3) or Article
8(8), the consumer shall pay to the trader
an amount which is in proportion to what
returning the goods, unless the trader has agreed to
bear those costs or the trader failed to inform theconsumer that the consumer has to bear them.
3. The consumer is liable for any diminished value
of the goods only where that results from handling
of the goods in any way other than what isnecessary to establish the nature, characteristics and
functioning of the goods. The consumer is not liablefor diminished value where the trader has not
provided all the information about the right to
withdraw in accordance with Article 17 (1).
4. Without prejudice to paragraph 3, the consumer
is not liable to pay any compensation for the use of
the goods during the withdrawal period.
5. Where the consumer exercises the right ofwithdrawal after having made an express request for
the provision of related services to begin during the
withdrawal period, the consumer must pay to the
trader an amount which is in proportion to what hasbeen provided before the consumer exercised the
right of withdrawal, in comparison with the full
coverage of the contract. The proportionate amount
to be paid by the consumer to the trader must be
calculated on the basis of the total price agreed in
the contract. Where the total price is excessive, the
proportionate amount must be calculated on thebasis of the market value of what has been
provided.
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has been provided until the time the
consumer has informed the trader of theexercise of the right of withdrawal, in
comparison with the full coverage of thecontract. The proportionate amount to be
paid by the consumer to the trader shall be
calculated on the basis of the total priceagreed in the contract. If the total price isexcessive, the proportionate amount shallbe calculated on the basis of the market
value of what has been provided.
4. The consumer shall bear no cost for:
(a) the performance of services or thesupply of water, gas or electricity, wherethey are not put up for sale in a limited
volume or set quantity, or of districtheating, in full or in part, during the
withdrawal period, where:
(i) the trader has failed to provideinformation in accordance with points (h)
or (j) of Article 6(1); or
(ii) the consumer has not expressly
requested performance to begin during the
withdrawal period in accordance withArticle 7(3) and Article 8(8); or
(b) the supply, in full or in part, of digitalcontent which is not supplied on a tangible
medium where:
(i) the consumer has not given his prior
6. The consumer is not liable for the cost for:
(a) the provision of related services, in fullor in part, during the withdrawal period,
where:
(i) the trader has failed to provide
information in accordance withArticle 17(1) and (3); or
(ii) the consumer has not expresslyrequested performance to beginduring the withdrawal period in
accordance with Article 18(2) andArticle 19(6);
(b) for the supply, in full or in part, ofdigital content which is not supplied on a
tangible medium where:
(i) the consumer has not given prior
express consent for the supply ofdigital content to begin before the
end of the period of withdrawalreferred to in Article 42(1);
(ii) the consumer has not
acknowledged losing the right of
withdrawal when giving the consent;
or
(iii) the trader has failed to provide
the confirmation in accordance with
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express consent to the beginning of the
performance before the end of the 14-dayperiod referred to in Article 9;
(ii) the consumer has not acknowledgedthat he loses his right of withdrawal when
giving his consent; or(iii) the trader has failed to provideconfirmation in accordance with Article
7(2) or Article 8(7).
5. Except as provided for in Article 13(2)
and in this Article, the consumer shall notincur any liability as a consequence of the
exercise of the right of withdrawal.
Article 18(1) and Article 19(5).
Except as provided for in this Article, the consumer
does not incur any liability through the exercise of
the right of withdrawal.
Article 44(4)
In the case of an off-premises contract where the
goods have been delivered to the consumers home
at the time of the conclusion of the contract, thetrader must collect the goods at its own cost if the
goods by their nature cannot be normally returned
by post.
Ancillary
contracts
Art. 15 Effects of the exercise of the right of
withdrawal on ancillary contracts
1. Without prejudice to Article 15 ofDirective 2008/48/EC of the European
Parliament and of the Council of 23 April2008 on credit agreements for consumers
[20], if the consumer exercises his right of
withdrawal from a distance or an off-premises contract in accordance with
Articles 9 to 14 of this Directive, anyancillary contracts shall be automatically
terminated, without any costs for theconsumer, except as provided for in
Article 13(2) and in Article 14 of this
Directive.
2. The Member States shall lay down
Art. 46 Ancillary contracts
1. Where a consumer exercises the right ofwithdrawal from a distance or an off-premises
contract in accordance with Articles 41 to 45, anyancillary contracts are automatically terminated atno cost to the consumer except as provided in
paragraphs 2 and 3. []
2. The provisions of Articles 43, 44 and 45 apply
accordingly to ancillary contracts to the extent that
those contracts are governed by the Common
European Sales Law.
3. For ancillary contracts which are not governed by
the Common European Sales Law the applicable
law governs the obligations of the parties in the
(=)
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detailed rules on the termination of such
contracts.
event of withdrawal.
Time of Delivery Art. 18(1) Delivery
1. Unless the parties have agreed otherwise
on the time of delivery, the trader shalldeliver the goods by transferring the
physical possession or control of the goodsto the consumer without undue delay, but
not later than 30 days from the conclusionof the contract.
Article 96 Time of delivery
1. Where the time of delivery cannot be otherwise
determined, the goods or the digital content must bedelivered without undue delay after the conclusion
of the contract.
2. In contracts between a trader and a consumer,unless agreed otherwise by the parties, the trader
must deliver the goods or the digital content not
later than 30 days from the conclusion of the
contract.
(=)
A distinction
between B2B and
B2C contracts was
necessary, hence the
need for twoparagraphs.
Remedies forlate performance
Art. 18(2) Delivery
2. Where the trader has failed to fulfil hisobligation to deliver the goods at the timeagreed upon with the consumer or within
the time limit set out in paragraph 1, theconsumer shall call upon him to make the
delivery within an additional period oftime appropriate to the circumstances. If
the trader fails to deliver the goods withinthat additional period of time, the
consumer shall be entitled to terminate the
contract.
The first subparagraph shall not be
applicable to sales contracts where the
trader has refused to deliver the goods or
Article 115 Termination for delay in delivery after
notice fixing additional time for performance
A buyer may terminate the contract in a case of
delay in delivery which is not in itself fundamentalif the buyer gives notice fixing an additional period
of time of reasonable length for performance andthe seller does not perform within that period.
Article 114(1)Termination for non-performance
1. A buyer may terminate the contract within the
meaning of Article 8 if the sellers non-performance
(=)
(=)
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where delivery within the agreed delivery
period is essential taking into account allthe circumstances attending the conclusion
of the contract or where the consumerinforms the trader, prior to the conclusion
of the contract, that delivery by or on a
specified date is essential. In those cases, ifthe trader fails to deliver the goods at thetime agreed upon with the consumer orwithin the time limit set out in paragraph
1, the consumer shall be entitled toterminate the contract immediately.
3. Upon termination of the contract, the
trader shall, without undue delay,reimburse all sums paid under the contract.
4. In addition to the termination of the
contract in accordance with paragraph 2,the consumer may have recourse to other
remedies provided for by national law.
under the contract is fundamental within the
meaning of Article 87 (2).
Article 87(2)Non-performance of an obligation by
one party is fundamental if:
(q) it substantially deprives the otherparty of what that party was entitledto expect under the contract, unless at
the time of conclusion of the contract
the non-performing party did notforesee and could not be expected to
have foreseen that result; or
(r) it is of such a nature as to make itclear that the non-performing partysfuture performance cannot be relied
on.
Article 116 Termination for anticipated non-performance
A buyer may terminate the contract beforeperformance is due if the seller has declared, or it is
otherwise clear, that there will be a non-
performance, and if the non-performance would besuch as to justify termination.
Article 172(1) Restitution on avoidance or
termination (=)
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1. Where a contractis avoided or terminated by
either party, each party is obliged to return what
that party (the recipient) has received from the
other party.
Art. 106Overview of buyer's remedies
1. In the case of non-performance of an obligationby the seller, the buyer may do any of the
following:
(a) require performance, which includesspecific performance, repair or
replacement of the goods or digital
content, under Section 3 of this Chapter;
(b) withhold the buyers own performanceunder Section 4 of this Chapter;
(c) terminate the contract under Section 5of this Chapter and claim the return of any
price already paid, under Chapter 17;
(d) reduce the price under Section 6 of this
Chapter; and
(e) claim damages under Chapter 16.
(+) Specifies the
other remedieswhich the consumer
can have recourseto.
Fees for means
of paymentArticle 19 Fees for the use of means of
payment
Member States shall prohibit traders from
Art. 124(4) Means of payment
In a contract between a trader and a consumer, the
consumer is not liable, in respect of the use of a
(=)
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charging consumers, in respect of the use
of a given means of payment, fees thatexceed the cost borne by the trader for the
use of such means.
given means of payment, for fees that exceed the
cost borne by the trader for the use of such means.
Passing of risk
Art 145
Art. 20 Passing of risk
In contracts where the trader dispatches thegoods to the consumer, the risk of loss of
or damage to the goods shall pass to theconsumer when he or a third party
indicated by the consumer and other thanthe carrier has acquired the physical
possession of the goods. However, the riskshall pass to the consumer upon delivery to
the carrier if the carrier was commissionedby the consumer to carry the goods and
that choice was not offered by the trader,
without prejudice to the rights of theconsumer against the carrier.
Art. 142 Passing of risk in a consumer sales
contract
1. In a consumer sales contract, the risk passes at
the time when the consumer or a third party
designated by the consumer, not being the carrier,
has acquired the physical possession of the goods or
the tangible medium on which the digital content issupplied.
2. In a contract for the supply of digital content not
supplied on a tangible medium, the risk passes atthe time when the consumer or a third party
designated by the consumer for this purpose hasobtained the control of the digital content.
3. Except where the contract is a distance or off-premises contract, paragraphs 1 and 2 do not apply
where the consumer fails to perform the obligation
to take over the goods or the digital content and the
non-performance is not excused under Article 88. In
this case, the risk passes at the time when theconsumer, or the third party designated by the
consumer, would have acquired the physical
possession of the goods or obtained the control ofthe digital content if the obligation to take them
over had been performed.
4. Where the consumer arranges the carriage of the
(+) It covers also
digital content
which is notsupplied on a
tangible medium.
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goods or the digital content supplied on a tangible
medium and that choice was not offered by thetrader, the risk passes when the goods or the digital
content supplied on a tangible medium are handedover to the carrier, without prejudice to the rights of
the consumer against the carrier.
5. The parties may not, to the detriment of the
consumer, exclude the application of this Article orderogate from or vary its effects.
Art. 141 Identification of goods or digital content
to contract
The risk does not pass to the buyer until the goodsor the digital content are clearly identified as the
goods or digital content to be supplied under the
contract, whether by the initial agreement, by noticegiven to the buyer or otherwise.
Article 21 Communication by telephone
Member States shall ensure that where thetrader operates a telephone line for the
purpose of contacting him by telephone inrelation to the contract concluded, the
consumer, when contacting the trader isnot bound to pay more than the basic rate.
The first subparagraph shall be withoutprejudice to the right of
telecommunication services providers to
charge for such calls.
This provision was
not implemented in
the CESL because itwas not considered
to be of a
contractual nature.
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Additional
paymentsArticle 22 Additional payments
Before the consumer is bound by thecontract or offer, the trader shall seek the
express consent of the consumer to any
extra payment in addition to the
remuneration agreed upon for the tradersmain contractual obligation. If the traderhas not obtained the consumers express
consent but has inferred it by using default
options which the consumer is required to
reject in order to avoid the additional
payment, the consumer shall be entitled to
reimbursement of this payment.
Article 71 Additional payments in contracts
between a trader and a consumer
1. In a contract between a trader and a consumer, a
contract term which obliges the consumer to make
any payment in addition to the remuneration stated
for the traders main contractual obligation, inparticular where it has been incorporated by the use
of default options which the consumer is required toreject in order to avoid the additional payment,
is not binding on the consumer unless, before the
consumer is bound by the contract, the consumerhas expressly consented to the additional payment.
If the consumer has made the additional payment,the consumer may recover it.
2. The parties may not, to the detriment of the
consumer, exclude the application of this Article orderogate from or vary its effects.
(=)
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Table II: Consumer Sales Directive 99/44/EC: minimum harmonisation directive
Existing acquis provision Corresponding provisions of the draft proposal
for a CESL
Level of protection
in the CESL
Scope Art. 1(2)(b) Scope and definition
"consumer goods": shall mean anytangible movable item, with the exception
of:
- goods sold by way of execution orotherwise by authority of law,
- water and gas where they are not put upfor sale in a limited volume or set quantity,
- electricity;
Art. 1(3) and (4)
3. Member States may provide that theexpression "consumer goods" does not
cover second-hand goods sold at publicauction where consumers have the
opportunity of attending the sale in person.
4. Contracts for the supply of consumer
goods to be manufactured or producedshall also be deemed contracts of sale for
the purpose of this Directive.
Article 2
(h)'goods': means any tangible movable items; it
excludes:(i) electricity and natural gas; and
(b) water and other types of gas unless they are put
up for sale in a limited volume or set quantity;
(k)'sales contract'means any contract under
which the trader ('the seller') transfers or undertakes
to transfer the ownership of goods to another person
('the buyer'), and the buyer pays or undertakes topay the price thereof; it includes a contract for the
supply of goods to be manufactured or produced
and excludes contracts for the sale on execution orotherwise involving the exercise of public authority;
Article 5 CESLR: Contracts for which the
Common European Sales Law can be used
The Common European Sales Law may be used for:
(a) sales contracts;
(b) contracts for the supply of digital contentwhether or not supplied on a tangiblemedium which can be stored, processed or
accessed, and re-used by the user,irrespective of whether the digital content
(+)Because of
extension of the
scope to digitalcontent whether
supplied on a
tangible medium ornot.
Article 1(3) of the
Consumer SalesDirective gives anoption to the
Member Stateswhich is notexercised in the
proposal
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is supplied in exchange for the payment of
a price.
Duty ofconformity with
the contract
Art. 2 (1)
The seller must deliver goods to the consumer
which are in conformity with the contract ofsale.
Art. 91(c)
Main obligations of the sellerThe seller of goods or the supplier of digital content(in this part referred to as 'the seller') must
(a) deliver the goods or supply the digitalcontent;
(b) transfer the ownership of the goods,
including the tangible medium on whichthe digital content is supplied;
(c) ensure that the goods or the digital contentare in conformity with the contract;
(d) ensure that the buyer has the right to usethe digital content in accordance with the
contract; and
(e) deliver such documents representing or
relating to the goods or documents relatingto the digital content as may be required by
the contract.
(+)
Test of
conformity
Art. 2(2)
Consumer goods are presumed to be in
conformity with the contract if they:Article 99
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