keyboard_tab Clausole e vendite online Direttiva EU 2011/0083 EN

(5) The cross-border potential of distance selling, which should be one of the main tangible results of the internal market, is not fully exploited.

  Compared with the significant growth of domestic distance sales over the last few years, the growth in cross-border distance sales has been limited.

  This discrepancy is particularly significant for Internet sales for which the potential for further growth is high.

  The cross-border potential of contracts negotiated away from business_premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry.

  Compared with the growth of domestic direct selling over the last few years, in particular in the services sector, for instance utilities, the number of consumers using this channel for cross-border purchases has remained flat.

  Responding to increased business opportunities in many Member States, small and medium-sized enterprises (including individual traders) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions.

  Therefore the full harmonisation of consumer information and the right of withdrawal in distance and off-premises_contracts will contribute to a high level of consumer protection and a better functioning of the business-to- consumer internal market.

(6) Certain disparities create significant internal market barriers affecting traders and consumers.

  Those disparities increase compliance costs to traders wishing to engage in the cross-border sale of goods or provision of services.

  Disproportionate fragmentation also undermines consumer confidence in the internal market.

(7) Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders.

  Both consumers and traders should be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to- consumer contracts across the Union.

  The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area.

  Those barriers can only be eliminated by establishing uniform rules at Union level.

  Furthermore consumers should enjoy a high common level of protection across the Union.

(8) The regulatory aspects to be harmonised should only concern contracts concluded between traders and consumers.

  Therefore, this Directive should not affect national law in the area of contracts relating to employment, contracts relating to succession rights, contracts relating to family law and contracts relating to the incorporation and organisation of companies or partnership agreements.

(16) This Directive should not affect national laws on legal representation such as the rules relating to the person who is acting in the name of the trader or on his behalf (such as an agent or a trustee).

  Member States should remain competent in this area.

  This Directive should apply to all traders, whether public or private.

(24) A public_auction implies that traders and consumers attend or are given the possibility to attend the auction in person.

  The goods or services are offered by the trader to the consumer through a bidding procedure authorised by law in some Member States, to offer goods or services at public sale.

  The successful bidder is bound to purchase the goods or services.

  The use of online platforms for auction purposes which are at the disposal of consumers and traders should not be considered as a public_auction within the meaning of this Directive.

(28) In order to avoid administrative burden being placed on traders, Member States may decide not to apply this Directive where goods or services of a minor value are sold off-premises.

  The monetary threshold should be established at a sufficiently low level as to exclude only purchases of small significance.

  Member States should be allowed to define this value in their national legislation provided that it does not exceed EUR 50.

  Where two or more contracts with related subjects are concluded at the same time by the consumer, the total cost thereof should be taken into account for the purpose of applying this threshold.

(44) Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for traders selling cross-border.

  The introduction of a harmonised model withdrawal form that the consumer may use should simplify the withdrawal process and bring legal certainty.

  For these reasons, Member States should refrain from adding any presentational requirements to the Union-wide model form relating for example to the font size.

  However, the consumer should remain free to withdraw in his own words, provided that his statement setting out his decision to withdraw from the contract to the trader is unequivocal.

  A letter, a telephone call or returning the goods with a clear statement could meet this requirement, but the burden of proof of having withdrawn within the time limits fixed in the Directive should be on the consumer.

  For this reason, it is in the interest of the consumer to make use of a durable_medium when communicating his withdrawal to the trader.

(45) As experience shows that many consumers and traders prefer to communicate via the trader’s website, there should be a possibility for the trader to give the consumer the option of filling in a web-based withdrawal form.

  In this case the trader should provide an acknowledgement of receipt for instance by e-mail without delay.

(50) On the one hand, the consumer should benefit from his right of withdrawal even in case he has asked for the provision of services before the end of the withdrawal period.

  On the other hand, if the consumer exercises his right of withdrawal, the trader should be assured to be adequately paid for the service he has provided.

  The calculation of the proportionate amount should be based on the price agreed in the contract unless the consumer demonstrates that that total price is itself disproportionate, in which case the amount to be paid shall be calculated on the basis of the market value of the service provided.

  The market value should be defined by comparing the price of an equivalent service performed by other traders at the time of the conclusion of the contract.

  Therefore the consumer should request the performance of services before the end of the withdrawal period by making this request expressly and, in the case of off-premises_contracts, on a durable_medium.

  Similarly, the trader should inform the consumer on a durable_medium of any obligation to pay the proportionate costs for the services already provided.

  For contracts having as their object both goods and services, the rules provided for in this Directive on the return of goods should apply to the goods aspects and the compensation regime for services should apply to the services aspects.

(51) The main difficulties encountered by consumers and one of the main sources of disputes with traders concern delivery of goods, including goods getting lost or damaged during transport and late or partial delivery.

  Therefore it is appropriate to clarify and harmonise the national rules as to when delivery should occur.

  The place and modalities of delivery and the rules concerning the determination of the conditions for the transfer of the ownership of the goods and the moment at which such transfer takes place, should remain subject to national law and therefore should not be affected by this Directive.

  The rules on delivery laid down in this Directive should include the possibility for the consumer to allow a third party to acquire on his behalf the physical possession or control of the goods.

  The consumer should be considered to have control of the goods where he or a third party indicated by the consumer has access to the goods to use them as an owner, or the ability to resell the goods (for example, when he has received the keys or possession of the ownership documents).

(54) In accordance with Article 52(3) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market (12), Member States should be able to prohibit or limit traders’ right to request charges from consumers taking into account the need to encourage competition and promote the use of efficient payment instruments.

  In any event, traders should be prohibited from charging consumers fees that exceed the cost borne by the trader for the use of a certain means of payment.