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2019/2161 2011/83 2005/29 1998/6 1993/13

2011/0083 EN cercato: 'days' . Output generated live by software developed by IusOnDemand srl




whereas days:


definitions:


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Article 3

Scope

1.   This Directive shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer. It shall also apply to contracts for the supply of water, gas, electricity or district heating, including by public providers, to the extent that these commodities are provided on a contractual basis.

2.   If any provision of this Directive conflicts with a provision of another Union act governing specific sectors, the provision of that other Union act shall prevail and shall apply to those specific sectors.

3.   This Directive shall not apply to contracts:

(a)

for social services, including social housing, childcare and support of families and persons permanently or temporarily in need, including long-term care;

(b)

for healthcare as defined in point (a) of Article 3 of Directive 2011/24/EU, whether or not they are provided via healthcare facilities;

(c)

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

(d)

for financial_services;

(e)

for the creation, acquisition or transfer of immovable property or of rights in immovable property;

(f)

for the construction of new buildings, the substantial conversion of existing buildings and for rental of accommodation for residential purposes;

(g)

which fall within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (18);

(h)

which fall within the scope of Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (19);

(i)

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

(j)

for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, and which are physically supplied by a trader on frequent and regular rounds to the consumer’s home, residence or workplace;

(k)

for passenger transport services, with the exception of Article 8(2) and Articles 19 and 22;

(l)

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

(m)

concluded with telecommunications operators through public payphones for their use or concluded for the use of one single connection by telephone, Internet or fax established by a consumer.

4.   Member States may decide not to apply this Directive or not to maintain or introduce corresponding national provisions to off-premises_contracts for which the payment to be made by the consumer does not exceed EUR 50. Member States may define a lower value in their national legislation.

5.   This Directive shall not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated in this Directive.

6.   This Directive shall not prevent traders from offering consumers contractual arrangements which go beyond the protection provided for in this Directive.

Article 9

Right of withdrawal

1.   Save where the exceptions provided for in 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 without incurring any costs other than those provided for in Article 13(2) and Article 14.

2.   Without prejudice to Article 10, the withdrawal period referred to in paragraph 1 of this Article shall expire after 14 days from:

(a)

in the case of service_contracts, the day of the conclusion of the contract;

(b)

in the case of sales_contracts, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the 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 physical possession of the last good;

(ii)

in the case of delivery of a good consisting of multiple lots or pieces, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last lot or piece;

(iii)

in the case of contracts for regular delivery of goods during defined period of time, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the first good;

(c)

in the case of contracts for 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 supplied on a tangible medium, the day of the conclusion of the contract.

3.   The Member States shall not prohibit the contracting parties from performing their contractual obligations during the withdrawal period. Nevertheless, in the case of off-premises_contracts, Member States may maintain existing national legislation prohibiting the trader from collecting the payment from the consumer during the given period after the conclusion of the contract.

Article 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 shall expire 12 months from the end of the initial withdrawal period, as determined in accordance with Article 9(2).

2.   If the trader has provided the consumer with the information provided for in paragraph 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 13

Obligations of the trader in the event of withdrawal

1.   The trader shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract in accordance with Article 11.

The trader shall carry out the reimbursement referred to in the first subparagraph using the same means of payment as the consumer used for the initial transaction, unless the consumer has expressly agreed otherwise and provided that the consumer does not incur any fees as a result of such reimbursement.

2.   Notwithstanding paragraph 1, the trader shall not be required to reimburse the supplementary costs, if the consumer has expressly opted for a type of delivery other than the least expensive type of standard delivery offered by the trader.

3.   Unless the trader has offered to collect the goods himself, with regard to sales_contracts, the trader may withhold the reimbursement until he has received the goods back, or until the consumer has supplied evidence of having sent back the goods, whichever is the earliest.

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 send back the goods or hand them over to the trader or to a person authorised by the trader to receive the goods, without undue delay and in any event not later than 14 days 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 shall be met if the consumer sends back the goods before the period of 14 days has expired.

The consumer shall only bear the direct cost of returning the goods unless the trader has agreed to bear them or the trader failed to inform the consumer that the consumer has to bear them.

In the case of off-premises_contracts where the goods have been delivered to the consumer’s home at the time of the conclusion of the contract, the trader shall at his own expense collect the goods if, by their nature, those goods cannot normally be returned by post.

2.   The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. The consumer shall in any event not be liable for diminished value of the goods where the trader has failed to provide notice of the right of withdrawal in accordance with point (h) of Article 6(1).

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 has been provided until the time the consumer has informed the trader of the exercise of 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 shall be calculated on the basis of the total price agreed in the contract. If the total price is excessive, the proportionate amount shall be 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 the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, in full or in part, during the withdrawal period, where:

(i)

the trader has failed to provide information 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 with Article 7(3) and Article 8(8); or

(b)

the supply, in full or in part, of digital_content which is not supplied on a tangible medium where:

(i)

the consumer has not given his prior express consent to the beginning of the performance before the end of the 14-day period referred to in Article 9;

(ii)

the consumer has not acknowledged that he loses his right of withdrawal when giving his consent; or

(iii)

the trader has failed to provide confirmation 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 not incur any liability as a consequence of the exercise of the right of withdrawal.

Article 16

Exceptions from the right of withdrawal

Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises_contracts as regards the following:

(a)

service_contracts after the service has been fully performed if the performance has begun with the consumer’s prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;

(b)

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

(c)

the supply of goods made to the consumer’s specifications or clearly personalised;

(d)

the supply of goods which are liable to deteriorate or expire rapidly;

(e)

the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;

(f)

the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items;

(g)

the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales_contract, the delivery of which can only take place after 30 days and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;

(h)

contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance. If, on the occasion of such visit, the trader provides services in addition to those specifically requested 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 sealed video recordings or sealed computer software which were unsealed after delivery;

(j)

the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;

(k)

contracts concluded at a public_auction;

(l)

the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance;

(m)

the supply of digital_content which is not supplied on a tangible medium if the performance has begun with the consumer’s prior express consent and his acknowledgment that he thereby loses his right of withdrawal.

CHAPTER IV

OTHER CONSUMER RIGHTS

Article 18

Delivery

1.   Unless the parties have agreed otherwise on the time of delivery, the trader shall deliver the goods by transferring the physical possession or control of the goods to the consumer without undue delay, but not later than 30 days from the conclusion of the contract.

2.   Where the trader has failed to fulfil his obligation to deliver the goods at the time agreed upon with the consumer or within the time limit set out in paragraph 1, the consumer shall call upon him to make the delivery within an additional period of time appropriate to the circumstances. If the trader fails to deliver the goods within that 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 where delivery within the agreed delivery period is essential taking into account all the circumstances attending the conclusion of the contract or where the consumer informs the trader, prior to the conclusion of the contract, that delivery by or on a specified date is essential. In those cases, if the trader fails to deliver the goods at the time agreed upon with the consumer or within the time limit set out in paragraph 1, the consumer shall be entitled to terminate 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.

Article 35

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 25 October 2011.

For the European Parliament

The President

J. BUZEK

For the Council

The President

M. DOWGIELEWICZ


(1)  OJ C 317, 23.12.2009, p. 54.

(2)  OJ C 200, 25.8.2009, p. 76.

(3)  Position of the European Parliament of 23 June 2011 (not yet published in the Official Journal) and decision of the Council of 10 October 2011.

(4)  OJ L 372, 31.12.1985, p. 31.

(5)  OJ L 144, 4.6.1997, p. 19.

(6)  OJ L 177, 4.7.2008, p. 6.

(7)  OJ L 376, 27.12.2006, p. 36.

(8)  OJ L 178, 17.7.2000, p. 1.

(9)  OJ L 88, 4.4.2011, p. 45.

(10)  OJ L 255, 30.9.2005, p. 22.

(11)  OJ L 124, 8.6.1971, p. 1.

(12)  OJ L 319, 5.12.2007, p. 1.

(13)  OJ L 149, 11.6.2005, p. 22.

(14)  OJ L 201, 31.7.2002, p. 37.

(15)  OJ L 95, 21.4.1993, p. 29.

(16)  OJ L 171, 7.7.1999, p. 12.

(17)  OJ C 321, 31.12.2003, p. 1.

(18)  OJ L 158, 23.6.1990, p. 59.

(19)  OJ L 33, 3.2.2009, p. 10.

(20)  OJ L 133, 22.5.2008, p. 66.

(21)  OJ L 271, 9.10.2002, p. 16.


ANNEX I

Information concerning the exercise of the right of withdrawal

A.   Model instructions on withdrawal

Right of withdrawal

You have the right to withdraw from this contract within 14 days without giving any reason.

The withdrawal period will expire after 14 days from the day .

To exercise the right of withdrawal, you must inform us () of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.

To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

Instructions for completion:

Insert one of the following texts between inverted commas:

(a)

in the case of a service_contract or a contract for 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 supplied on a tangible medium: ‘of the conclusion of the contract.’;

(b)

in the case of a sales_contract: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.’;

(c)

in the case of a contract relating to multiple goods ordered by the consumer in one order and delivered separately: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last good.’;

(d)

in the case of a contract relating to delivery of a good consisting of multiple lots or pieces: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last lot or piece.’;

(e)

in the case of a contract for regular delivery of goods during a defined period of time: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the first good.’.

Insert your name, geographical address and, where available, your telephone number, fax number and e-mail address.

If you give the option to the consumer to electronically fill in and submit information about his withdrawal from the contract on your website, insert the following: ‘You can also electronically fill in and submit the model withdrawal form or any other unequivocal statement on our website [insert Internet address]. If you use this option, we will communicate to you an acknowledgement of receipt of such a withdrawal on a durable_medium (e.g. by e-mail) without delay.’.

In the case of sales_contracts in which you have not offered to collect the goods in the event of withdrawal insert the following: ‘We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.’.

If the consumer has received goods in connection with the contract:

(a)

insert:

‘We will collect the goods.’; or,

‘You shall send back the goods or hand them over to us or … [insert the name and geographical address, where applicable, of the person authorised by you to receive the goods], without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.’

(b)

insert:

‘We will bear the cost of returning the goods.’,

‘You will have to bear the direct cost of returning the goods.’,

If, in a distance_contract, you do not offer to bear the cost of returning the goods and the goods, by their nature, cannot normally be returned by post: ‘You will have to bear the direct cost of returning the goods, … EUR [insert the amount].’; or if the cost of returning the goods cannot reasonably be calculated in advance: ‘You will have to bear the direct cost of returning the goods. The cost is estimated at a maximum of approximately … EUR [insert the amount].’; or

If, in an off-premises_contract, the goods, by their nature, cannot normally be returned by post and have been delivered to the consumer’s home at the time of the conclusion of the contract: ‘We will collect the goods at our own expense.’; and,

(c)

insert ‘You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.’

In the case of a contract for the provision of services or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, insert the following: ‘If you requested to begin the performance of services or the supply of water/gas/electricity/district heating [delete where inapplicable] during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.’.

B.   Model withdrawal form

To [here the trader’s name, geographical address and, where available, his fax number and e-mail address are to be inserted by the trader]:

I/We (1) hereby give notice that I/We (1) withdraw from my/our (1) contract of sale of the following goods (1)/for the provision of the following service (1),

Ordered on (1)/received on (1),

Name of consumer(s),

Address of consumer(s),

Signature of consumer(s) (only if this form is notified on paper),

Date


(1)  Delete as appropriate.


ANNEX II

Correlation table

Directive 85/577/EEC

Directive 97/7/EC

This Directive

Article 1

 

Article 3 read in conjunction with Article 2, points 8 and 9, and Article 16, point (h)

 

Article 1

Article 1 read in conjunction with Article 2, point 7

Article 2

 

Article 2, points 1 and 2

 

Article 2, point 1

Article 2, point 7

 

Article 2, point 2

Article 2, point 1

 

Article 2, point 3

Article 2, point 2

 

Article 2, point 4, first sentence

Article 2, point 7

 

Article 2, point 4, second sentence

 

Article 2, point 5

Article 3(1)

 

Article 3(4)

Article 3(2), point (a)

 

Article 3(3), points (e) and (f)

Article 3(2), point (b)

 

Article 3(3), point (j)

Article 3(2), point (c)

 

Article 3(2), point (d)

 

Article 3(3), point (d)

Article 3(2), point (e)

 

Article 3(3), point (d)

Article 3(3)

 

 

Article 3(1), first indent

Article 3(3), point (d)

 

Article 3(1), second indent

Article 3(3), point (l)

 

Article 3(1), third indent

Article 3(3), point (m)

 

Article 3(1), fourth indent

Article 3(3), points (e) and (f)

 

Article 3(1), fifth indent

Article 6(3) and Article 16, point (k) read in conjunction with Article 2, point 13

 

Article 3(2), first indent

Article 3(3), point (j)

 

Article 3(2), second indent

Article 3(3), point (f) (for rental of accommodation for residential purposes), point (g) (for package travel), point (h) (for timeshare), point (k) (for passenger transport with some exceptions) and Article 16, point (l) (exemption from the right of withdrawal)

Article 4, first sentence

 

Article 6(1), points (b), (c) and (h), and Article 7(1) and (2)

Article 4, second sentence

 

Article 6(1), point a and Article 7(1)

Article 4, third sentence

 

Article 6(1)

Article 4, fourth sentence

 

Article 10

 

Article 4(1), point (a)

Article 6(1), points (b) and (c)

 

Article 4(1), point (b)

Article 6(1), point (a)

 

Article 4(1), point (c)

Article 6(1), point (e)

 

Article 4(1), point (d)

Article 6(1), point (e)

 

Article 4(1), point (e)

Article 6(1), point (g)

 

Article 4(1), point (f)

Article 6(1), point (h)

 

Article 4(1), point (g)

Article 6(1), point (f)

 

Article 4(1), point (h)

 

Article 4(1), point (i)

Article 6(1), points (o) and (p)

 

Article 4(2)

Article 6(1) read in conjunction with Article 8(1), (2) and (4)

 

Article 4(3)

Article 8(5)

 

Article 5(1)

Article 8(7)

 

Article 5(2)

Article 3(3), point m

 

Article 6(1)

Article 9(1) and (2), Article 10, Article 13(2), Article 14

 

Article 6(2)

Article 13 and Article 14(1), second and third subparagraphs

 

Article 6(3), first indent

Article 16, point (a)

 

Article 6(3), second indent

Article 16, point (b)

 

Article 6(3), third indent

Article 16, point (c) and (d)

 

Article 6(3), fourth indent

Article 16, point (i)

 

Article 6(3), fifth indent

Article 16, point (j)

 

Article 6(3), sixth indent

Article 3(3), point (c)

 

Article 6(4)

Article 15

 

Article 7(1)

Article 18(1) (for sales_contracts)

 

Article 7(2)

Article 18(2), (3) and (4)

 

Article 7(3)

 

Article 8

 

Article 9

Article 27

 

Article 10

(but see Article 13 of Directive 2002/58/EC)

 

Article 11(1)

Article 23(1)

 

Article 11(2)

Article 23(2)

 

Article 11(3), point (a)

Article 6(9) for the burden of proof concerning pre-contractual information; for the rest: –

 

Article 11(3), point (b)

Article 24(1)

 

Article 11(4)

 

Article 12(1)

Article 25

 

Article 12(2)

 

Article 13

Article 3(2)

 

Article 14

Article 4

 

Article 15(1)

Article 28(1)

 

Article 15(2)

Article 28(1)

 

Article 15(3)

Article 28(1)

 

Article 15(4)

Article 30

 

Article 16

Article 26

 

Article 17

 

Article 18

Article 34

 

Article 19

Article 35

Article 5(1)

 

Articles 9 and 11

Article 5(2)

 

Article 12

Article 6

 

Article 25

Article 7

 

Articles 13, 14 and 15

Article 8

 

Article 4


Annex to Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (1)

To be construed as a reference to

Paragraphs 2 and 11

This Directive


(1)  OJ L 364, 9.12.2004, p. 1.


whereas









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