European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Directive No 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts  was aimed at facilitating cross-border sales, which constitute, for consumers, one of the main tangible results of the completion of the internal market, by approximating the national laws relating to consumer protection, the divergences of which have negative effects on competition. Directive No 2011 …

Pre-contract information and right of withdrawal

Directive No 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts  was aimed at facilitating cross-border sales, which constitute, for consumers, one of the main tangible results of the completion of the internal market, by approximating the national laws relating to consumer protection, the divergences of which have negative effects on competition. Directive No 2011/83 of 25 October 2011 which repeals and replaces it, however finds that this aim has not been reached and cross-border distance sales are limited by a number of factors, including national consumer protection rules imposed upon the industry. Thus, in the new directive, the European legislature has chosen full harmonization of the consumer information which should enable traders and consumers to rely on a single regulatory framework based on clearly defined legal concepts. 

The directive applies to off-premises  or distance contracts. We will study only the provisions relating to contract negotiated at a distance. The directive applies to “any contract concluded between the trader and the consumer under an organized 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” (Article 2(7)). The directive provides  only for total exemptions. Contracts for social services, healthcare, gambling, for financial services, a non-exhaustive list of which is given in Annex, for the creation, acquisition or transfer of immovable property or for the construction of new buildings, the substantial conversion of existing buildings or for rental of accommodation for residential purposes, or contracts concluded by means of automatic vending machines or automated commercial premises or concluded with telecommunications operators through the use of public payphones or concluded for the use of one single connection by telephone, internet or fax established by a consumer are thus fully excluded from its scope of application (Article 3(3)). Goods intended for current consumption supplied by regular roundsmen and contracts of tourism and transport are now fully excluded from the scope of application of the directive (Article 3(3)) . Transactions relating to small amounts (less than EUR 50) may also be excluded from the scope of the directive if the Member State so decides; it may also define a lower value. From minimum harmonization with Directive No 97/7 (Article 14) , the harmonization is now full. Article 4 of Directive No 2011/83 precludes Member States from maintaining or introducing, in their national law, provisions diverging from those laid down in the directive, including more or less stringent provisions. The directive lays down two major conditions for the validity of a distance contract: prior information of the consumer and the existence of a right of withdrawal.

1) Pre-contract information or distance contracts. We will study only the provisions relating to contract negotiated at a distance.

Under Article 6 of Directive No 2011/83, before the consumer is bound by a distance contract, it must receive the following information in a clear and comprehensible manner:

- the main characteristics of the goods or services, to the extent appropriate to the medium;

- their total prices inclusive of taxes, and where applicable, all additional freight, delivery or postal charges, as well as the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate;

- the arrangements for payment, delivery or performance, the time by which the trader undertakes to deliver the goods or to perform the services;

- whether a right of withdrawal exists or, where applicable, the circumstances under which the consumer loses this right, the cost of returning the goods in case of exercise of the withdrawal right;

- the existence of a legal guarantee of conformity for goods, and/or after sale customer assistance, and/or additional commercial guarantees, where applicable, as well as their implementation conditions;

- the existence of relevant codes of conduct;

- the duration of validity of the offer, the price and, where applicable, the minimum duration of the contract ;

- where applicable, the functionality of digital content, as well as any relevant interoperability with hardware and software;

- the identity of the trader (for example, his trading name) and his geographical address, telephone number, fax number and supplier's e-mail address; the Court of Justice has ruled that Directive No 2011/83 does not impose an obligation for traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them and requires that number, the fax number or their email address to be communicated only where those traders already have those means of communication with consumers . 

The information forms an integral part of the distance or off-premises contract and cannot be altered unless the parties expressly agree otherwise. It is for the trader to bring evidence that he has complied with his duty of information (Article 6(9)).

The directive imposes on the trader a number of formal requirements the content of which differs according to the method of distance communication used. Generally, the information must be provided or made available by the trader to the consumer in a way appropriate to the means of distance communication used in plain and intelligible language. The information must be legible when provided on a durable medium (Article 8(1)). The Court of Justice considers that although it may be provided to the consumer only in the general terms and conditions of the provision of services on the website of the  intermediary, actively approved by the consumer by ticking the box  provided for this purpose, this does not replace the provision to the consumer of the confirmation of the contract on a durable medium . Where the contract is concluded by electronic means and requires immediate payment, the consumer must be made aware in a clear and prominent manner, before placing his order, of the characteristics of the goods or services, the total price inclusive of taxes, the minimum duration of the contract and of his obligations. The consumer must also be able to recognize expressly his obligation to pay when placing his order. Delivery restrictions and means of payment accepted must also clearly appear at the beginning of the ordering process (Article 8(2) and (3)). Where the means of distance communication impose space or time limitations to display the information, the trader is subject to a minimum obligation of information (identity of the trader, characteristics of the goods or services, price, right of withdrawal, the duration of the contract, the conditions for terminating the contract where it is of indeterminate duration) (Article 8(4)). In order to comply, the trader must refer the consumer to another source of information, for instance by providing a toll free telephone number or a hypertext link to a webpage where the relevant information is directly available and easily accessible . In case of contact by telephone, the consumer must be informed at the beginning of the conversation of the identity of the person and the commercial purpose of the call. In this case, the trader may be required to confirm in writing the offer to the consumer who is bound only once he has signed or has accepted the offer in writing (Article 8(6)). 

In any case, the trader must provide the consumer with the confirmation of the contract concluded, on a durable medium and within a reasonable time after the conclusion of the distance contract, and at the latest at the time of the delivery of the goods or before the performance of the service begins. This confirmation must include all pre-contract information (identity, characteristics, prices, etc.), unless it has been provided on a durable medium prior to the conclusion of the contract (Article 8(7)). No other formal requirement may be imposed by a Member State.

The consumer benefits from a right of withdrawal which enables him, for a period of 14 working days, to withdraw from the contract without penalty and without giving any reason (Article 9). According to the Court of Justice, with respect to the right of withdrawal, a mattress may be equated with a garment and therefore the purchaser may, in the context of a distance sale, to try it on in order to establish its nature, characteristics and the functioning and, where necessary, after trying it, exercise his right of withdrawal by returning it to the trader . National rules cannot allow the supplier under a distance contract to charge the costs of delivering the goods to the consumer where the latter exercises his right of withdrawal . Additionally, the consumer must be able to exercise this right without having to pay any costs other than the direct costs for returning the goods, unless he has made use of the good in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment .

The period of exercise begins, in the case of services, from the day of conclusion of the contract and, in the case of sales contracts, from the day on which the consumer or a third party indicated by the consumer and other than the carrier acquires physical possession of the goods . If the trader has not provided the consumer with the information on the right of withdrawal, the withdrawal period expires 12 months from the end of the initial fourteen-day period (Article 10). Before the expiry of the withdrawal period, the consumer shall inform the trader of his decision to withdraw from the contract either by using the withdrawal form set out in Annex to the directive, or by making any other unequivocal statement setting out his decision. The trader may also give the option to the consumer to submit his right of withdrawal on line on the trader's website. It is for the consumer to bring evidence of the exercise of his right of withdrawal (Article 11). The exercise of the right of withdrawal results in the termination of the obligations of the parties. The trader must reimburse all payments received, except for supplementary costs if the consumer has expressly opted for a type of delivery other than the least expensive type of standard delivery. The reimbursement may be postponed until the trader has received the contract goods back (Article 13). The consumer must send back 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; he only bears the cost of returning the goods (Article 14). Where a contract is concluded through a means of distance communication which allows limited space or time to display the information, the trader is not required to provide the consumer with the model withdrawal form, as provided for in Annex I(B) of Directive No 2011/83 when using that means of communication but may provide it by another source in plain and intelligible language, insofar as such a model is not a circumstance that could influence the consumer's decision on whether or not to conclude a distance contract and an obligation to provide the consumer in all circumstances with that model is liable to impose on the trader a disproportionate burden, and in some cases, such as contracts concluded by telephone, an insupportable burden .  A professional seller or supplier who concludes a contract with a consumer via a website and who does not make use of the telephone for that purpose, while having a telephone line available for the purposes of managing other aspects of his business activity, is in principle not required to disclose the number allocated to that telephone line to that consumer when he decides to make use of the model instructions set out in Annex I(A) of Directive No 2011/83, which is intended to facilitate the exercise of the right of withdrawal by that consumer. On the other hand, where a professional's telephone number is displayed on his website in such a way that it suggests to a reasonably well-informed and reasonably observant and circumspect consumer that the trader uses that telephone number for the purposes of his contacts with consumers, that telephone number should be regarded as “available”, so that where that trader provides the consumer, before the consumer is bound by a distance or off-premises contract, with information on how to exercise the right of withdrawal, using the model instructions set out in point A of Annex I to Directive No 2011/83, the telephone number given in that information must be the same .

The withdrawal right includes exceptions set forth in Article 16 of Directive No 2011/83. Services contracts, where the service has been fully performed with the consumer's prior express consent , the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the supplier, the supply of goods made to the consumer's specifications or clearly personalized , the supply of goods which are liable to deteriorate or expire rapidly, the supply of sealed goods due to health protection or hygiene reasons , the supply of goods which are, after delivery, inseparably mixed with other items, the supply of a newspaper or magazine, contracts concluded at a public auction, or the provision of accommodation, are examples not subject to withdrawal rights.

The directive then sets forth the rules applicable to delivery (Article 18), which must take place not later than 30 days from the conclusion of the contract and whose non-compliance may be penalized by the termination of the contract, prohibits the charging to consumers of fees that exceed the cost borne by traders for the use of given means of payment (Article 19), settles the passing of the risk of loss or damage (Article 20), prohibits the use of telephone lines to contact the trader at a cost higher than the basic rate (Article 21)  and submits any extra payment in addition to the remuneration agreed upon in the main contract to the express consent of the consumer (Article 22). Lastly, the directive includes provisions in relation to enforcement (Article 23), to applicable penalties (Article 24) and prohibiting inertia selling (Article 27).

Directive No 97/7/EC of 20 May 1997 on the protection of consumers in respect of distance contracts, OJ L 144, 4.6.1997, 19.

Under Article 2(8) of the directive, off-premises contract is defined as “any contract between the trader and the consumer:(a) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; (b) for which an offer was made by the consumer in the same circumstances as referred to in point (a); (c) concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; or (d) concluded during an excursion organized by the trader with the aim or effect of promoting and selling goods or services to the consumer”. According to the Court of Justice in Case C-485/17 Verbraucherzentrale Berlin eV, Judgment of 7 August 2018, LawLex201800001206JBJ, a stand run by a trader at a trade fair, at which he carries out his activity for a few days each year, constitutes “business premises”  if, in the light, in particular, of the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out his activity there and will solicit him in order to conclude a contract.

Case C-489/07 Messner [2009] ECR I-7315, LawLex201100000388JBJ.

A specification is given by the directive for multiple goods and goods consisting of multiple lots or pieces. In such a case, the physical receipt of the last good or the last lot is the starting point of the period.

Case C-430/17 Walbusch Walter Busch GmbH & Co. KG, Judgment of 23 January 2019, LawLex201900000095JBJ.

Case C-266/19 EIS GmbH, Judgment of 14 May 2020, LawLex202300003393JBJ.

Case C-641/19 EU v PE Digital GmbH, Judgment of  8 October 2020, LawLex202100004252JBJ, holding that, where the consumer has expressly requested that the performance of the off-premises contract concluded begin during the withdrawal period and withdraws from that contract, the proportionate amount to be paid by the consumer to the trader pursuant to Article 14(3) of Directive No 2011/83 is calculated pro rata temporis taking into account the price agreed in the contract for the full coverage of the contract, unless the contract expressly provides that one or more of the services are to be provided in full from the beginning of the performance of the contract and separately, for a price which must be paid separately, in which case the full price for such a service should be taken into account in the calculation of the amount owed to the trader.

Case C-208/19 NK v MS, AS, Judgment of 14 May 2020, LawLex202100004982JBJ :  a contract between an architect and a consumer under which the former undertakes to draw up for the latter, in accordance with the latter's requirements and wishes, a plan for the construction of a detached house and, in that context, to draw up the plans does not constitute a contract for the supply of goods made to the consumer's specifications or clearly personalized within the meaning of Article 16 of Directive No 2011/83, which lists the exceptions to the right of withdrawal, since, even if such a contract involves the drawing up of construction plans supplied as documents in paper form or digital files which constitute tangible movable objects made by the architect on the basis of the consumer's indications and choices, the fact remains that the main subject-matter of the contract consists in the architect's intellectual service, the supply of the plans as goods being only of secondary importance; Case C-529/19 Möbel Kraft GmbH & Co. KG, Judgment of 21 October 2021, LawLex202100004276JBJ, the exception to the right of withdrawal may be relied on against a consumer without being conditional on the occurrence of an event occurring after the conclusion of the contract and irrespective of whether that contract has been  performed or whether it is being performed by the trader.

Case C-681/17 slewo - schlafen leben wohnen GmbH, Judgment of 27 March 2019, LawLex201900001284JBJ: the right of withdrawal can be exercised for a mattress from which the consumer has removed the protection after delivery, since it does not constitute “sealed goods” that cannot be returned for reasons of health protection or hygiene reasons within the meaning of Article 16 of the directive.

For an application see Case C-568/15 Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV, Judgment of 2 March 2017, LawLex201700000402JBJ, specifying that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader, is not to be bound to pay more than the basic rate referred to in Article 21 of Directive No 2011/83, i.e. the cost of a call to a standard geographic landline or mobile telephone line, regardless of whether or not the trader makes a profit through that telephone line; Case C-332/17 Starman As v Tarbijakaitseamet, Judgment of 13 September 2018, LawLex201800001291JBJ, the directive precludes a trader from charging a consumer who has already concluded a contract with him at a higher rate than the basic rate, when the consumer contacts the trader by telephone about that contract, regardless of the  format of the call numbers (speed dial numbers) offered by that trader.

Directive No 97/7/EC also provided for partial exemption now moved in the new provision with total exemptions.

Case C-336/03 easyCar [2005] ECR I-1947, LawLex200900000379JBJ: to justify that solution which is at first sight unfavorable to the interests of consumers, the court underlines that the directive is not only aimed at instituting protection for the interests of consumers, but also protection for the interests of suppliers of certain services, in order that they should not suffer the disproportionate consequences arising from the cancellation at no expense and with no explanation of services which have given rise to a booking at short notice before the date planned for the provision of that service.

Case C-322/01 Deutscher Apothekerverband [2003] ECR I-14887, LawLex200900000268JBJ.

Case C-649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände v Amazon EU Sàrl, Judgment of 10 July 2019, LawLex201900001282JBJ.

Case C-536/20 “Tiketa” UAB, Judgment of 24 February 2022, LawLex202200001189JBJ.

Case C-681/17 slewo - schlafen leben wohnen GmbH, Judgment of 27 March 2019, LawLex201900001284JBJ.

Case C-511/08 Heine [2010] ECR I-3047, LawLex201100000612JBJ.

European Business Law

222. Pre-contract information and right of withdrawal

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222. Pre-contract information and right of withdrawal

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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