keyboard_tab Clausole e vendite online Direttiva EU 2011/0083 EN

(1) Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business_premises (4) and Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance_contracts (5) lay down a number of contractual rights for consumers.

(2) Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules.

  That review has shown that it is appropriate to replace those two Directives by a single Directive.

  This Directive should therefore lay down standard rules for the common aspects of distance and off-premises_contracts, moving away from the minimum harmonisation approach in the former Directives whilst allowing Member States to maintain or adopt national rules in relation to certain aspects.

(4) In accordance with Article 26(2) TFEU, the internal market is to comprise an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured.

  The harmonisation of certain aspects of consumer distance and off-premises_contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity.

(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.

(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.

(9) This Directive establishes rules on information to be provided for distance_contracts, off-premises_contracts and contracts other than distance and off-premises_contracts.

  This Directive also regulates the right of withdrawal for distance and off-premises_contracts and harmonises certain provisions dealing with the performance and some other aspects of business-to- consumer contracts.

(13) Member States should remain competent, in accordance with Union law, to apply the provisions of this Directive to areas not falling within its scope.

  Member States may therefore maintain or introduce national legislation corresponding to the provisions of this Directive, or certain of its provisions, in relation to contracts that fall outside the scope of this Directive.

  For instance, Member States may decide to extend the application of the rules of this Directive to legal persons or to natural persons who are not consumers within the meaning of this Directive, such as non-governmental organisations, start-ups or small and medium-sized enterprises.

  Similarly, Member States may apply the provisions of this Directive to contracts that are not distance_contracts within the meaning of this Directive, for example because they are not concluded under an organised distance sales or service-provision scheme.

  Moreover, Member States may also maintain or introduce national provisions on issues not specifically addressed in this Directive, such as additional rules concerning sales_contracts, including in relation to the delivery of goods, or requirements for the provision of information during the existence of a contract.

(15) This Directive should not harmonise language requirements applicable to consumer contracts.

  Therefore, Member States may maintain or introduce in their national law language requirements regarding contractual information and contractual terms.

(17) The definition of consumer should cover natural persons who are acting outside their trade, business, craft or profession.

  However, in the case of dual purpose contracts, where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered as a consumer.

(19) Digital content means data which are produced and supplied in digital form, such as computer programs, applications, games, music, videos or texts, irrespective of whether they are accessed through downloading or streaming, from a tangible medium or through any other means.

  contracts for the supply of digital_content should fall within the scope of this Directive.

  If digital_content is supplied on a tangible medium, such as a CD or a DVD, it should be considered as goods within the meaning of this Directive.

  Similarly to contracts for 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, contracts for digital_content which is not supplied on a tangible medium should be classified, for the purpose of this Directive, neither as sales_contracts nor as service_contracts.

  For such contracts, the consumer should have a right of withdrawal unless he has consented to the beginning of the performance of the contract during the withdrawal period and has acknowledged that he will consequently lose the right to withdraw from the contract.

  In addition to the general information requirements, the trader should inform the consumer about the functionality and the relevant interoperability of digital_content.

  The notion of functionality should refer to the ways in which digital_content can be used, for instance for the tracking of consumer behaviour; it should also refer to the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding.

  The notion of relevant interoperability is meant to describe the information regarding the standard hardware and software environment with which the digital_content is compatible, for instance the operating system, the necessary version and certain hardware features.

  The Commission should examine the need for further harmonisation of provisions in respect of digital_content and submit, if necessary, a legislative proposal for addressing this matter.

(21) An off-premises_contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, in a place which is not the business_premises of the trader, for example at the consumer’s home or workplace.

  In an off-premises context, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit.

  The definition of an off-premises_contract should also include situations where the consumer is personally and individually addressed in an off-premises context but the contract is concluded immediately afterwards on the business_premises of the trader or through a means of distance communication.

  The definition of an off-premises_contract should not cover situations in which the trader first comes to the consumer’s home strictly with a view to taking measurements or giving an estimate without any commitment of the consumer and where the contract is then concluded only at a later point in time on the business_premises of the trader or via means of distance communication on the basis of the trader’s estimate.

  In those cases, the contract is not to be considered as having been concluded immediately after the trader has addressed the consumer if the consumer has had time to reflect upon the estimate of the trader before concluding the contract.

  Purchases made during an excursion organised by the trader during which the products acquired are promoted and offered for sale should be considered as off-premises_contracts.

(25) contracts related to district heating should be covered by this Directive, similarly to the contracts for the supply of water, gas or electricity.

  District heating refers to the supply of heat, inter alia, in the form of steam or hot water, from a central source of production through a transmission and distribution system to multiple buildings, for the purpose of heating.

(26) contracts related to the transfer of immovable property or of rights in immovable property or to the creation or acquisition of such immovable property or rights, contracts for the construction of new buildings or the substantial conversion of existing buildings as well as contracts for the rental of accommodation for residential purposes are already subject to a number of specific requirements in national legislation.

  Those contracts include for instance sales of immovable property still to be developed and hire-purchase.

  The provisions of this Directive are not appropriate to those contracts, which should be therefore excluded from its scope.

  A substantial conversion is a conversion comparable to the construction of a new building, for example where only the façade of an old building is retained.

  Service contracts in particular those related to the construction of annexes to buildings (for example a garage or a veranda) and those related to repair and renovation of buildings other than substantial conversion, should be included in the scope of this Directive, as well as contracts related to the services of a real estate agent and those related to the rental of accommodation for non-residential purposes.

(27) Transport services cover passenger transport and transport of goods.

  Passenger transport should be excluded from the scope of this Directive as it is already subject to other Union legislation or, in the case of public transport and taxis, to regulation at national level.

  However, the provisions of this Directive protecting consumers against excessive fees for the use of means of payment or against hidden costs should apply also to passenger transport contracts.

  In relation to transport of goods and car rental which are services, consumers should benefit from the protection afforded by this Directive, with the exception of the right of withdrawal.

(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.

(32) The existing Union legislation, inter alia, relating to consumer financial_services, package travel and timeshare contains numerous rules on consumer protection.

  For this reason, this Directive should not apply to contracts in those areas.

  With regard to financial_services, Member States should be encouraged to draw inspiration from existing Union legislation in that area when legislating in areas not regulated at Union level, in such a way that a level playing field for all consumers and all contracts relating to financial_services is ensured.

(36) In the case of distance_contracts, the information requirements should be adapted to take into account the technical constraints of certain media, such as the restrictions on the number of characters on certain mobile telephone screens or the time constraint on television sales spots.

  In such cases the trader should comply with a minimum set of information requirements and refer the consumer to another source of information, for instance by providing a toll free telephone number or a hypertext link to a webpage of the trader where the relevant information is directly available and easily accessible.

  As to the requirement to inform the consumer of the cost of returning goods which by their nature cannot normally be returned by post, it will be considered to have been met, for example, if the trader specifies one carrier (for instance the one he assigned for the delivery of the good) and one price concerning the cost of returning the goods.

  Where the cost of returning the goods cannot reasonably be calculated in advance by the trader, for example because the trader does not offer to arrange for the return of the goods himself, the trader should provide a statement that such a cost will be payable, and that this cost may be high, along with a reasonable estimation of the maximum cost, which could be based on the cost of delivery to the consumer.

(37) Since in the case of distance sales, the consumer is not able to see the goods before concluding the contract, he should have a right of withdrawal.

  For the same reason, the consumer should be allowed to test and inspect the goods he has bought to the extent necessary to establish the nature, characteristics and the functioning of the goods.

  Concerning off-premises_contracts, the consumer should have the right of withdrawal because of the potential surprise element and/or psychological pressure.

  Withdrawal from the contract should terminate the obligation of the contracting parties to perform the contract.

(39) It is important to ensure for distance_contracts concluded through websites that the consumer is able to fully read and understand the main elements of the contract before placing his order.

  To that end, provision should be made in this Directive for those elements to be displayed in the close vicinity of the confirmation requested for placing the order.

  It is also important to ensure that, in such situations, the consumer is able to determine the moment at which he assumes the obligation to pay the trader.

  Therefore, the consumer’s attention should specifically be drawn, through an unambiguous formulation, to the fact that placing the order entails the obligation to pay the trader.

(40) The current varying lengths of the withdrawal periods both between the Member States and for distance and off-premises_contracts cause legal uncertainty and compliance costs.

  The same withdrawal period should apply to all distance and off-premises_contracts.

  In the case of service_contracts, the withdrawal period should expire after 14 days from the conclusion of the contract.

  In the case of sales_contracts, the withdrawal period should expire after 14 days from 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.

  In addition the consumer should be able to exercise the right to withdraw before acquiring physical possession of the goods.

  Where multiple goods are ordered by the consumer in one order but are delivered separately, the withdrawal period should expire after 14 days from the day on which the consumer acquires physical possession of the last good.

  Where goods are delivered in multiple lots or pieces, the withdrawal period should expire after 14 days from the day on which the consumer acquires the physical possession of the last lot or piece.

(49) Certain exceptions from the right of withdrawal should exist, both for distance and off-premises_contracts.

  A right of withdrawal could be inappropriate for example given the nature of particular goods or services.

  That is the case for example with wine supplied a long time after the conclusion of a contract of a speculative nature where the value is dependent on fluctuations in the market (‘vin en primeur’).

  The right of withdrawal should neither apply to goods made to the consumer’s specifications or which are clearly personalised such as tailor-made curtains, nor to the supply of fuel, for example, which is a good, by nature inseparably mixed with other items after delivery.

  The granting of a right of withdrawal to the consumer could also be inappropriate in the case of certain services where the conclusion of the contract implies the setting aside of capacity which, if a right of withdrawal were exercised, the trader may find difficult to fill.

  This would for example be the case where reservations are made at hotels or concerning holiday cottages or cultural or sporting events.

(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.

(52) In the context of sales_contracts, the delivery of goods can take place in various ways, either immediately or at a later date.

  If the parties have not agreed on a specific delivery date, the trader should deliver the goods as soon as possible, but in any event not later than 30 days from the day of the conclusion of the contract.

  The rules regarding late delivery should also take into account goods to be manufactured or acquired specially for the consumer which cannot be reused by the trader without considerable loss.

  Therefore, a rule which grants an additional reasonable period of time to the trader in certain circumstances should be provided for in this Directive.

  When the trader has failed to deliver the goods within the period of time agreed with the consumer, before the consumer can terminate the contract, the consumer should call upon the trader to make the delivery within a reasonable additional period of time and be entitled to terminate the contract if the trader fails to deliver the goods even within that additional period of time.

  However, this rule should not apply when the trader has refused to deliver the goods in an unequivocal statement.

  Neither should it apply in certain circumstances where the delivery period is essential such as, for example, in the case of a wedding dress which should be delivered before the wedding.

  Nor should it apply in circumstances where the consumer informs the trader that delivery on a specified date is essential.

  For this purpose, the consumer may use the trader’s contact details given in accordance with this Directive.

  In these specific cases, if the trader fails to deliver the goods on time, the consumer should be entitled to terminate the contract immediately after the expiry of the delivery period initially agreed.

  This Directive should be without prejudice to national provisions on the way the consumer should notify the trader of his will to terminate the contract.

(55) Where the goods are dispatched by the trader to the consumer, disputes may arise, in the event of loss or damage, as to the moment at which the transfer of risk takes place.

  Therefore this Directive should provide that the consumer be protected against any risk of loss of or damage to the goods occurring before he has acquired the physical possession of the goods.

  The consumer should be protected during a transport arranged or carried out by the trader, even where the consumer has chosen a particular delivery method from a range of options offered by the trader.

  However, that provision should not apply to contracts where it is up to the consumer to take delivery of the goods himself or to ask a carrier to take delivery.

  Regarding the moment of the transfer of the risk, a consumer should be considered to have acquired the physical possession of the goods when he has received them.

(62) It is appropriate for the Commission to review this Directive if some barriers to the internal market are identified.

  In its review, the Commission should pay particular attention to the possibilities granted to Member States to maintain or introduce specific national provisions including in certain areas of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (15) and Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (16).

  That review could lead to a Commission proposal to amend this Directive; that proposal may include amendments to other consumer protection legislation reflecting the Commission’s Consumer Policy Strategy commitment to review the Union acquis in order to achieve a high, common level of consumer protection.