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Directive (EU) 2019/2161 on better enforcement and modernisation of EU consumer protection rules
amends Directive 2011/83/EU. The amendments increase protection for EU consumers in several areas such as purchases through online marketplaces, transparency of price personalisation* and ranking of online offers and consumer rights when using ‘free’ online services.
Scope
With some exceptions such as package travel and holidays or financial services, such as consumer credit and insurance, Directive 2011/83/EU, as amended by Directive (EU) 2019/2161, covers a broad range of contracts concluded between traders and consumers, namely sales contracts*, service contracts*, contracts for online digital content and contracts for the supply of water, gas, electricity and district heating). It applies to contracts concluded in shops and to contracts concluded off-premises (e.g. at the consumer’s home) or at distance (e.g. online).
Amending Directive (EU) 2019/2161 extends the scope of Directive 2011/83/EU to cover contracts under which the trader supplies or undertakes to supply digital service* or digital content* to the consumer, and the consumer provides or undertakes to provide personal data*. It also clarifies the situation of products offered to consumers in online marketplaces*, where both the provider of the online marketplace and the third-party supplier are involved in providing the pre-contractual information required by Directive 2011/83/EU.
Information obligations
Before concluding a contract, traders must provide to consumers, in clear, understandable language, information, such as:
their identity and contact details;
the product’s main characteristics; and
the conditions that apply, including payment terms, delivery time, performance and duration of the contract and termination conditions.
In shops, only information which is not already obvious must be provided.
Information requirements, particularly on the right of withdrawal, are more detailed for contracts concluded at distance (such as via post, telephone or online) and for contracts concluded off premises (e.g. where a trader visits a consumer’s home).
Amending Directive (EU) 2019/2161 includes a new article dealing with specific information requirements for contracts concluded on online marketplaces. Online marketplaces are required to inform consumers whether the third-party supplier is a trader or non-trader (a consumer), warn the consumer about the non-applicability of EU consumer-protection rules to contracts concluded with non-traders and explain who is responsible for the performance of the contract: the third-party trader or the online marketplace itself.
Also, amending Directive (EU) 2019/2161 requires traders to inform consumers whether the price was personalised on the basis of automated decision-making.
Right of withdrawal
Consumers can withdraw from distance and off-premises contracts within 14 days of the delivery of the goods* or the conclusion of the service contract, subject to certain exceptions, without any explanation or cost. A standard withdrawal form provided by the seller suffices. If the consumers are not made aware of their rights, the withdrawal period is extended by 12 months.
Exemptions apply in several circumstances, for example, for rapidly perishable goods, sealed goods opened by the consumer which cannot be returned for health or hygiene reasons, and hotel reservations or car rentals which are tied to specific dates. Exceptions also apply, under certain circumstances, for contracts for the supply of digital content which is not supplied on a tangible medium if the performance has begun.
When consumers withdraw from a contract, they must refrain from using the digital content or digital service and from making it available to third parties.
No unjustified payment costs or additional charges
Traders must not charge consumers fees that are more than the cost borne by the trader for the type of payment involved.
When phoning a trader to enquire or complain about the contract concluded, the consumer must not pay more than the basic telephone rate.
Traders must have a consumer’s express consent when offering additional paid-for services. Pre-ticked boxes on an order form may not be used for such payments.
Penalties
Amending Directive (EU) 2019/2161 requires EU countries to introduce effective, proportionate and dissuasive penalties to punish traders who break national rules transposing the directive.
The amending Directive (EU) 2019/2161 introduces a list of criteria to be applied when imposing the penalties. It also requires EU countries to provide for the possibility to impose fines up to at least 4% of a trader’s turnover, or €2 million where information about the trader’s turnover is unavailable when, working together, they identify major cross-border infringements affecting consumers in several EU countries.
Application
Directive 2011/83/EU has applied since 12 December 2011 and had to become law in the EU countries by 13 December 2013. It applies to contracts concluded after 13 June 2014.
Amending Directive (EU) 2019/2161 has to become law in the EU countries by 28 November 2021 and applies from 28 May 2022.