comparison acquis proposal

8/12/2019 Comparison Acquis Proposal

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Comparative Tablebetween the existing acquis provisionsand the corresponding provisions of the proposal on a

Common European Sales Law

Table I: Consumer Rights Directive (CRD): mainly full harmonisation directive + options for MS

Existing acquis provision

- underlined text does not have an equivalent

in the CESL, most often because of the

differences in scope

Corresponding provisions of the draft proposal:

the Regulation (CESLR) and the Annex I

(CESL)

- underlined text does not have an equivalent in

the acquis, most often because it provides for

higher levels of consumer protection

Level of protection

in the CESL

compared to the

acquis(+ or =) and

other comments:

Scope rules and

options left to

the Member

States by the

ConsumerRights Directive

Article 2 CRD

(5) "sales contract" means any contract under

which the trader transfers or undertakes to

transfer the ownership of goods to the

consumer and the consumer pays or undertakesto pay the price thereof, including any contract

having as its object both goods and services;

(4) "goods made to the consumer's

specifications" means non-prefabricated goods

made on the basis of an individual choice of ordecision by the consumer;

Article 2(k) CESLR

'sales contract': means any contract under which

the trader ('the seller')

transfers or undertakes to transfer the ownership of

goods to another person('the buyer'), and the buyer pays or undertakes to

pay the price thereof; it

includes a contract for the supply of goods to be

manufactured or produced and excludes contracts

for the sale on execution or otherwise involving theexercise of public authority;

(=) The proposal

uses the broader

concept of "goods to

be manufactured or

produced" instead of"goods made to the

consumer's

specification" (in

line with Directive

99/44). The wordingof "goods made to

the consumer'sspecifications is

used in Chapter 4 on

Right of

Withdrawal.

(6) "service contract" means any contract

other than a sales contract under which thetrader supplies or undertakes to supply a

service to the consumer and the consumer pays

(m) "related service"means any service related to

goods or digital content, such as installation,maintenance, repair or any other processing,

CESL does not

cover servicecontracts as such,

but only a few


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or undertakes to pay the price thereof; provided by the seller of the goods or the supplier

of the digital content under the sales contract, thecontract for the supply of digital content or a

separate related service contract which wasconcluded at the same time as the sales contract or

the contract for the supply of digital content; itexcludes: (i) transport services, (ii) training

services, (iii) telecommunications support services;and (iv) financial services;

related services

which fulfil thecriteria in this

definition.

(11) "digital content" means data which are

produced and supplied in digital form;

(j) digital contentmeans data which is produced

and supplied in digital form,whether or not according to the consumer's

specifications; it excludes digital content pertaining

to:

(a) financial services including online banking

services;(b) legal or financial advice provided in electronic

form

(c) electronic healthcare services;(d) electronic communications services and

networks, and associatedfacilities and services;(e) gambling;

(f) the provision of social networking services; and(g) the creation of new digital content and the

amendment of existing digital

content by consumers or any other interaction withthe creations of other users;

Changes are due to

the largersubstantive scope of

CESL: only those

digital content

products for which

the sales remediesfit are covered bythe CESL.

(12) "financial service" means any service of a

banking, credit, insurance, personal pension,

investment or payment nature;

Financial services are excluded from the scope, see

Article 2(m)(iv) CESLR. However, a specific

definition was not considered to be necessary.

(=) financial

services are also

excluded from the

scope of the CRD,


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see Art 3.3 (d).

Definitions Art. 2(1) "consumer": means any natural person

who, in contracts covered by this Directive, isacting for purposes which are outside his trade,

business, craft or profession.

(2) "trader" means any natural person or any

legal person, irrespective of whether privately

or publicly owned, who is acting, includingthrough any other person acting in his name or

on his behalf, for purposes relating to his trade,

business, craft or profession in relation to

contracts covered by this Directive;

Art. 2 CESLR

(f) 'consumer': means any natural person who is

acting for purposes which are outside that person'strade, business, craft, or profession;

(e) 'trader': means any natural person or any legal

person who is acting for

purposes relating to that persons trade, business,craft, or profession;

(=)

(=) CESL does not

regulate

representation anddid not want to give

that impression by

including criteria

which are used in

national legal ordersto determine

representation.Therefore, in order

to achieve the sameresult, where

relevant, a referenceis made in therespective

provisions to "thetrader or, in case the

trader is a legal

person, a naturalperson representingthe trader" (for

instance Article2(p)).


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(3) "goods" means any tangible movable items,

with the exception of items sold by way ofexecution or otherwise by authority of law;

water, gas and electricity shall be considered asgoods within the meaning of this Directive

where they are put up for sale in a limitedvolume or a set quantity;

(7) "distance contract" means any contract

concluded between the trader and the consumerunder an organised 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;

(8) "off-premises contract" means any

contract between the trader and the consumer:

(h) 'goods' means any tangible movable items; it

excludes:(i) electricity and natural gas; and

(ii) water and other types of gas unless they are putup for sale in a limited volume or set quantity;

(p) 'distance contract'means any contract between

the trader and the consumer under an organiseddistance sales scheme concluded without the

simultaneous physical presence of the trader or, in

case the trader is a legal person, a natural person

representing 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;

(q) 'off-premises contract'means any contract

between a trader and a consumer:

(=) the proposal

does not coverelectricity and

natural gas put upfor sale in a limited

volume or quantitysince these do not

have a cross-borderrelevance.The definition of

"sales contracts"excludes items sold

by way of executionor authority of law.

(=)

See explanation

under definition of

"trader".

(=)


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(a) concluded in the simultaneous physical

presence of the trader and the consumer, in aplace which is not the business premises of the

trader;(b) for which an offer was made by the

consumer in the same circumstances, asreferred to in point (a);

(c) concluded on the business premises ofthe trader or through any means of distancecommunication immediately after the consumer

was personally and individually addressed in aplace which is not the business premises of the

trader in the simultaneous physical presence ofthe trader and the consumer; or

(d) concluded during an excursionorganised by the trader with the aim or effect of

promoting and selling goods or services to theconsumer;

(9) "business premises" means:

(a) any immovable retail premises where

the trader carries out his activity on a

permanent basis; or

(i) concluded in the simultaneous physical presence

of the trader or, in case the trader is a legal person,the natural person representing the trader and the

consumer in a place which is not the trader'sbusiness premises, or

concluded on the basis of an offer made by theconsumer in the same

circumstances; or(ii) concluded on the trader's business premises orthrough any means of

distance communication immediately after theconsumer was personally

and individually addressed in a place which is notthe trader's business

premises in the simultaneous physical presence ofthe trader or, in case

the trader is a legal person, a natural personrepresenting the trader and

the consumer; or

(iii) concluded during an excursion organised by thetrader or, in case the

trader is a legal person, the natural person

representing the trader with the

aim or effect of promoting and selling goods or

supplying digital content or services to the

consumer;

(r) 'business premises'means:

(i) any immovable retail premises where a trader

carries out activity on a

permanent basis, or

See explanation

under definition of"trader".

(=)


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in the guarantee statement or in the relevant

advertising available at the time of, or beforethe conclusion of the contract;

(15) "ancillary contract" means a contract by

which the consumer acquires goods or servicesrelated to a distance contract or an off-premises

contract and where those goods are supplied orthose services are provided by the trader or by athird party on the basis of an arrangement

between that third party and the trader.

statement or in the relevant advertising available at

the time of, or before the conclusion of the contract;

Art. 46, paragraph 1, 2nd

sentence CESL:

an ancillary contract means a contract by whicha consumer acquires goods, digital content or

related services in connexion to a distance contractor an off-premises contract and these goods, digitalcontent or related services are provided by the

trader or a third party on the basis of anarrangement between that third party and the trader.

(=)

Information

requirements for

distance and off-premises

contracts

Art. 6(1)-(6) Information requirements for

distance and off-premises contracts

1. Before the consumer is bound by adistance or off-premises contract, or anycorresponding offer, the trader shall

provide the consumer with the followinginformation in a clear and comprehensible

manner:

(a) the main characteristics of the goods orservices, to the extent appropriate to the

medium and to the goods or services;

(b) the identity of the trader, such as his

trading name;

(c) the geographical address at which the

trader is established and the traderstelephone number, fax number and e-mailaddress, where available, to enable the

consumer to contact the trader quickly and

Art. 13 Duty to provide information when

concluding a distance or off-premises contract

1. A trader concluding a distance contract or off-

premises contract has a duty to provide thefollowing information to the consumer, in a clearand comprehensible manner before the contract is

concluded or the consumer is bound by any offer:

(a) the main characteristics of the goods,digital content or related services tobe supplied, to an extent appropriate

to the medium of communication and

to the goods, digital content or

related services;

(b) the total price and additional chargesand costs, in accordance with Article

14;

(c) the identity and address of the trader,

(=)

The substance of the

informationrequirements is the

same in both CESLand CRD. The

drafting and thepresentation of the

informationrequirements havebeen adapted in

order to ensure thedirect applicability

and user-friendlinessof the provisions of

a Regulation for theintended users of

this instrument. Inthis sense, the CRDrequirements have


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communicate with him efficiently and,

where applicable, the geographical addressand identity of the trader on whose behalf

he is acting;

(d) if different from the address provided

in accordance with point (c), thegeographical address of the place of

business of the trader, and, whereapplicable, that of the trader on whose

behalf he is acting, where the consumer

can address any complaints;

(e) the total price of the goods or servicesinclusive of taxes, or where the nature of

the goods or services is such that the pricecannot reasonably be calculated in

advance, the manner in which the price isto be calculated, as well as, where

applicable, all additional freight, deliveryor postal charges and any other costs or,where those charges cannot reasonably be

calculated in advance, the fact that suchadditional charges may be payable. In the

case of a contract of indeterminateduration or a contract containing a

subscription, the total price shall includethe total costs per billing period. Where

such contracts are charged at a fixed rate,the total price shall also mean the total

monthly costs. Where the total costs

cannot be reasonably calculated inadvance, the manner in which the price is

in accordance with Article 15;

(d) the contract terms, in accordancewith Article 16;

(e)

the rights of withdrawal, inaccordance with Article 17;

(f) where applicable, the existence andthe conditions of the trader's after-

sale customer assistance, after-saleservices, commercial guarantees andcomplaints handling policy;

(g) where applicable, the possibility ofhaving recourse to an Alternative

Dispute Resolution mechanism towhich the trader is subject and the

methods for having access to it;

(h) where applicable, the functionality,including applicable technicalprotection measures, of digital

content; and

(i) where applicable, any relevantinteroperability of digital content

with hardware and software whichthe trader is aware of or can be

expected to have been aware of.

2. The information provided, except for the

addresses required by point (c) of paragraph 1,

been

"contractualised" inthe CESL.


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to be calculated shall be provided;

(f) the cost of using the means of distance

communication for the conclusion of thecontract where that cost is calculated otherthan at the basic rate;

(g) the arrangements for payment,delivery, performance, the time by whichthe trader undertakes to deliver the goods

or to perform the services and, whereapplicable, the traders complaint handling

policy;

(h) where a right of withdrawal exists, the

conditions, time limit and procedures forexercising that right in accordance with

Article 11(1), as well as the modelwithdrawal form set out in Annex I(B);

(i) where applicable, that the consumerwill have to bear the cost of returning the

goods in case of withdrawal and, fordistance contracts, if the goods, by their

nature, cannot normally be returned by

post, the cost of returning the goods;

(j) that, if the consumer exercises the rightof withdrawal after having made a request

in accordance with Article 7(3) or Article8(8), the consumer shall be liable to paythe trader reasonable costs in accordance

with Article 14(3);

(k) where a right of withdrawal is not

forms an integral part of the contract and shall not

be altered unless the parties expressly agreeotherwise.

Article 14Information about price and additional charges

and costs

1. The information to be provided under point (b) of

Article 13 (1) must include:

(a) the total price of the goods, digitalcontent or related services, inclusive of

taxes, or where the nature of the goods,digital content or related services is such

that the price cannot reasonably becalculated in advance, the manner in which

the price is to be calculated; and

(b) where applicable, any additional

freight, delivery or postal charges and anyother costs or, where these cannot

reasonably be calculated in advance, thefact that such additional charges and costsmay be payable.

2. In the case of a contract of indeterminate durationor a contract containing a subscription, the total

price must include the total price per billing period.Where such contracts are charged at a fixed rate, the

total price must include the total monthly price.Where the total price cannot be reasonably


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provided for in accordance with Article 16,

the information that the consumer will notbenefit from a right of withdrawal or,

where applicable, the circumstances underwhich the consumer loses his right of

withdrawal;(l) a reminder of the existence of a legal

guarantee of conformity for goods;

(m) where applicable, the existence andthe conditions of after sale customer

assistance, after-sales services and

commercial guarantees;

(n) the existence of relevant codes ofconduct, as defined in point (f) of Article 2

of Directive 2005/29/EC, and how copiesof them can be obtained, where applicable;

(o) the duration of the contract, whereapplicable, or, if the contract is of

indeterminate duration or is to be extendedautomatically, the conditions for

terminating the contract;

(p) where applicable, the minimum

duration of the consumers obligationsunder the contract;

(q) where applicable, the existence and the

conditions of deposits or other financial

guarantees to be paid or provided by the

consumer at the request of the trader;

(r) where applicable, the functionality,

calculated in advance, the manner in which the

price is to be calculated must be provided.

3. Where applicable, the trader must inform the

consumer of the cost of using the means of distance

communication for the conclusion of the contractwhere that cost is calculated other than at the basicrate.

Article 15Information about the identity and address of the

trader

The information to be provided under point (c) ofArticle 13 (1) must include:

(a) the identity of the trader, such as its tradingname;

(b) the geographical address at which thetrader is established;

(c) the telephone number, fax number and e-mail address of the trader, where available,

to enable the consumer to contact thetrader quickly and communicate with the

trader efficiently;

(d) where applicable, the identity andgeographical address of any other trader on

whose behalf the trader is acting; and

(e) where different from the address given


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including applicable technical protection

measures, of digital content;

(s) where applicable, any relevantinteroperability of digital content withhardware and software that the trader is

aware of or can reasonably be expected tohave been aware of;

(t) where applicable, the possibility of

having recourse to an out-of-courtcomplaint and redress mechanism, to

which the trader is subject, and the

methods for having access to it.

2. Paragraph 1 shall also apply to contractsfor the supply of water, gas or electricity,

where they are not put up for sale in alimited volume or set quantity, of districtheating or of digital content which is not

supplied on a tangible medium.

3. In the case of a public auction, theinformation referred to in points (b), (c)

and (d) of paragraph 1 may be replaced by

the equivalent details for the auctioneer.

4. The information referred to in points(h), (i) and (j) of paragraph 1 may be

provided by means of the modelinstructions on withdrawal set out inAnnex I(A). The trader shall have fulfilled

the information requirements laid down inpoints (h), (i) and (j) of paragraph 1 if he

has supplied these instructions to the

pursuant to points (b) and (d) of this

Article, the geographical address of thetrader, and where applicable that of the

trader on whose behalf it is acting, wherethe consumer can address any complaints.

Article 16

Information about the contract terms

The information to be provided under point (d) of

Article 13 (1) must include:

(a) the arrangements for payment, delivery of

the goods, supply of the digital content orperformance of the related services and the

time by which the trader undertakes to

deliver the goods, to supply the digitalcontent or to perform the related services;

(b) where applicable, the duration of the

contract, the minimum duration of theconsumer's obligations or, if the contract is

of indeterminate duration or is to be

extended automatically, the conditions forterminating the contract; and

(c) where applicable, the existence and

conditions for deposits or other financialguarantees to be paid or provided by theconsumer at the request of the trader;

(d) where applicable, the existence of relevantcodes of conduct and how copies of them


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consumer, correctly filled in.

5. The information referred to in paragraph

1 shall form an integral part of the distanceor off-premises contract and shall not bealtered unless the contracting parties

expressly agree otherwise.

can be obtained.

Article 17Information about rights of withdrawal when

concluding a distance or off-premises contract

1. Where the consumer has a right of withdrawal

under Chapter 4, the information to be providedunder point (e) of Article 13 (1) must include the

conditions, time limit and procedures for exercisingthat right in accordance with Appendix 1, as well asthe model withdrawal form set out in Appendix 2.

2. Where applicable, the information to be providedunder point (e) of Article 13(1) must include the

fact that the consumer will have to bear the cost ofreturning the goods in case of withdrawal and, for

distance contracts, that the consumer will have tobear the cost of returning the goods in the event of

withdrawal if the goods by their nature cannot benormally returned by post.

3. Where the consumer can exercise the right ofwithdrawal after having made a request for theprovision of related services to begin during the

withdrawal period, the information to be provided

under point (e) of Article 13(1) must include thefact that the consumer would be liable to pay thetrader the amount referred to in Article 45 (5).

4. The duty to provide the information required byparagraphs 1, 2 and 3 may be fulfilled by supplying


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the Model instructions on withdrawal set out in

Appendix 1 to the consumer. The trader will bedeemed to have fulfilled these information

requirements if he has supplied these instructions tothe consumer correctly filled in.

5. Where a right of withdrawal is not provided forin accordance with points (c) to (i) of Article 40 (2)

and paragraph 3 of that Article, the information tobe provided under point (e) of Article 13 (1) must

include a statement that the consumer will not

benefit from a right of withdrawal or, whereapplicable, the circumstances under which the

consumer loses the right of withdrawal.

Annex II Standard Information Notice: contains

the requirement that traders give consumers areminder of the legal guarantee as well as other coreconsumer rights.

Formal

requirements for

off-premisescontracts

Art. 7 Formal requirements for off-premises

contracts

1. With respect to off-premises contracts,the trader shall give the informationprovided for in Article 6(1) to the

consumer on paper or, if the consumer

agrees, on another durable medium. That

information shall be legible and in plain,intelligible language.

2. The trader shall provide the consumerwith a copy of the signed contract or theconfirmation of the contract on paper or, if

Art. 13 (4)

For an off-premises contract, the information

required by this Article must:

(a) be given on paper or, if the consumeragrees, on another durable medium; and

(b) be legible and in plain, intelligiblelanguage.

Art. 18

(=)


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the consumer agrees, on another durable

medium, including, where applicable, theconfirmation of the consumers prior

express consent and acknowledgement inaccordance with point (m) of Article 16.

3. Where a consumer wants theperformance of services or the supply of

water, gas or electricity, where they are notput up for sale in a limited volume or set

quantity, or of district heating to begin

during the withdrawal period provided for

in Article 9(2), the trader shall require that

the consumer makes such an express

request on a durable medium.

4. With respect to off-premises contracts

where the consumer has explicitlyrequested the services of the trader for the

purpose of carrying out repairs ormaintenance for which the trader and theconsumer immediately perform their

contractual obligations and where thepayment to be made by the consumer does

not exceed EUR 200:

(a) the trader shall provide the consumer

with the information referred to in points

(b) and (c) of Article 6(1) and informationabout the price or the manner in which the

price is to be calculated together with an

estimate of the total price, on paper or, if

the consumer agrees, on another durable

medium. The trader shall provide the

Off-premises contracts: additional information

requirements and confirmation

1. The trader must provide the consumer witha copy of the signed contract or theconfirmation of the contract, including

where applicable, the confirmation of theconsumer's consent and acknowledgment

as provided for in point (d) of Article 40(3)

on paper or, if the consumer agrees, on adifferent durable medium.

2. Where the consumer wants the provision ofrelated services to begin during the

withdrawal period provided for in Article

42(2), the trader must require that theconsumer makes such an express requeston a durable medium.

Electricity and

natural gas, as wellas water and other

types of gas whichare not put up forsale in a limited

volume or setquantity are outside

the scope of theproposal.

Art. 7(4) CRD setsup an option for the

MS which has not

been exercised inthe CESL.


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information referred to in points (a), (h)

and (k) of Article 6(1), but may choose notto provide it on paper or another durable

medium if the consumer expressly agrees;

(b) the confirmation of the contract

provided in accordance with paragraph 2of this Article shall contain the information

provided for in Article 6(1).

Member States may decide not to applythis paragraph.

Formal

requirements for

distancecontracts

Art. 8

Formal requirements for distance

contracts

1. With respect to distance contracts, the

trader shall give the information providedfor in Article 6(1) or make that

information available to the consumer in away appropriate to the means of distance

communication used in plain andintelligible language. In so far as that

information is provided on a durable

medium, it shall be legible.

2. If a distance contract to be concluded by

electronic means places the consumer

under an obligation to pay, the trader shallmake the consumer aware in a clear and

prominent manner, and directly before the

consumer places his order, of the

information provided for in points (a), (e),

Art. 13(3)

For a distance contract, the information required by

this Article must:

(a) be given or made available to the consumer in away that is appropriate to the means of distancecommunication used;

(b) be in plain and intelligible language; and

(c) insofar as it is provided on a durable medium, be

legible.

Article 19

Distance contracts: additional information and

other requirements

1. When a trader makes a telephone call to aconsumer, with a view to concluding a distancecontract, the trader must, at the beginning of the

conversation with the consumer, disclose its identity

(=)


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(o) and (p) of Article 6(1).

The trader shall ensure that the consumer,

when placing his order, explicitlyacknowledges that the order implies anobligation to pay. If placing an order

entails activating a button or a similarfunction, the button or similar function

shall be labelled in an easily legiblemanner only with the words "order with

obligation to pay" or a corresponding

unambiguous formulation indicating that

placing the order entails an obligation to

pay the trader. If the trader has not

complied with this subparagraph, theconsumer shall not be bound by the

contract or order.

3. Trading websites shall indicate clearly

and legibly at the latest at the beginning ofthe ordering process whether any deliveryrestrictions apply and which means of

payment are accepted.

4. If the contract is concluded through a

means of distance communication which

allows limited space or time to display the

information, the trader shall provide, on

that particular means prior to theconclusion of such a contract, at least the

pre-contractual information regarding the

main characteristics of the goods or

services, the identity of the trader, the total

price, the right of withdrawal, the duration

and, where applicable, the identity of the person on

whose behalf it is making the call and thecommercial purpose of the call.

2. If the distance contract is concluded through a

means of distance communication which allows

limited space or time to display the information, thetrader must provide at least the information referred

to in paragraph 3 of this Article on that particularmeans prior to the conclusion of such a contract.

The other information referred to in Article 13 shall

be provided by the trader to the consumer in anappropriate way in accordance with Article 13(3).

3. The information required under paragraph 2 is:

(a) the main characteristics of the goods,

digital content or related services, as

required by point (a) of Article 13 (1);

(b) the identity of the trader, as required bypoint (a) of Article 15;

(c) the total price, including all itemsreferred to in point (b) of Article 13 (1) andArticle 14(1) and (2);

(d) the right of withdrawal; and

(e) where relevant, the duration of the

contract, and if the contract is for an

indefinite period, the requirements for

terminating the contract, referred to in


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of the contract and, if the contract is of

indeterminate duration, the conditions forterminating the contract, as referred to in

points (a), (b), (e), (h) and (o) of Article6(1). The other information referred to in

Article 6(1) shall be provided by the traderto the consumer in an appropriate way in

accordance with paragraph 1 of thisArticle.

5. Without prejudice to paragraph 4, if the

trader makes a telephone call to the

consumer with a view to concluding a

distance contract, he shall, at the beginning

of the conversation with the consumer,disclose his identity and, where applicable,

the identity of the person on whose behalf

he makes that call, and the commercial

purpose of the call.

6. Where a distance contract is to beconcluded by telephone, Member States

may provide that the trader has to confirmthe offer to the consumer who is bound

only once he has signed the offer or hassent his written consent. Member States

may also provide that such confirmationshave to be made on a durable medium.

7. The trader shall provide the consumer

with the confirmation of the contract

concluded, on a durable medium within a

reasonable time after the conclusion of the

distance contract, and at the latest at the

point (b) of Article 16.

4. A distance contract concluded by telephone is

valid only if the consumer has signed the offer or

has sent his written consent indicating the

agreement to conclude a contract. The trader must

provide the consumer with a confirmation of thatagreement on a durable medium.

5. The trader must give the consumer a

confirmation of the contract concluded, includingwhere applicable, of the consent and

acknowledgement of the consumer referred to in

point (d) of Article 40(3), and all the information

referred to in Article 13 on a durable medium. The

trader must give that information in reasonable time

after the conclusion of the distance contract, and atthe latest at the time of the delivery of the goods or

before the supply of digital content or the provisionof the related service begins, unless the information

has already been given to the consumer prior to theconclusion of the distance contract on a durablemedium.

6. Where the consumer wants the provision of

related services to begin during the withdrawal

period provided for in Article 42(2), the trader must

require that the consumer makes an express requestto that effect on a durable medium.

Article 25

Additional requirements in distance contracts


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time of the delivery of the goods or before

the performance of the service begins.That confirmation shall include:

(a) all the information referred to in Article6(1) unless the trader has already provided

that information to the consumer on adurable medium prior to the conclusion of

the distance contract; and

(b) where applicable, the confirmation ofthe consumers prior express consent and

acknowledgment in accordance with point

(m) of Article 16.

8. Where a consumer wants theperformance of services, or the supply ofwater, gas or electricity, where they are not

put up for sale in a limited volume or setquantity, or of district heating, to begin

during the withdrawal period provided forin Article 9(2), the trader shall require that

the consumer make an express request.

9. This Article shall be without prejudiceto the provisions on the conclusion of e-

contracts and the placing of e-orders set

out in Articles 9 and 11 of Directive2000/31/EC.

10. Member States shall not impose anyfurther formal pre-contractual information

requirements for the fulfilment of theinformation obligations laid down in this

concluded by electronic means

1. Where a distance contract which is concluded by

electronic means would oblige the consumer to

make a payment, the trader must make the

consumer aware in a clear and prominent manner,

and immediately before the consumer places theorder, of the information required by point (a) of

Article 13 (1), Article 14(1) and (2), and point (b)of Article 16.

2. The trader must ensure that the consumer, when

placing the order, explicitly acknowledges that the

order implies an obligation to pay. Where placing

an order entails activating a button or a similar

function, the button or similar function must be

labelled in an easily legible manner only with thewords "order with obligation to pay" or similar

unambiguous wording indicating that placing theorder entails an obligation to make a payment to the

trader. Where the trader has not complied with thisparagraph, the consumer is not bound by thecontract or order.

3. The trader must indicate clearly and legibly on its

trading website at the latest at the beginning of the

ordering process whether any delivery restrictions

apply and what means of payment are accepted.


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Directive.

Information

requirements forcontracts other

than distance and

off-premisescontracts

Art. 5

Information requirements for contracts

other than distance or off-premises

contracts

1. Before the consumer is bound by a

contract other than a distance or an off-premises contract, or any corresponding

offer, the trader shall provide the consumerwith the following information in a clear

and comprehensible manner, if that

information is not already apparent fromthe context:

(a) the main characteristics of the goods or

services, to the extent appropriate to themedium and to the goods or services;

(b) the identity of the trader, such as histrading name, the geographical address at

which he is established and his telephonenumber;

(c) the total price of the goods or services

inclusive of taxes, or where the nature of

the goods or services is such that the price

cannot reasonably be calculated in

advance, the manner in which the price isto be calculated, as well as, where

applicable, all additional freight, delivery

or postal charges or, where those charges

cannot reasonably be calculated in

advance, the fact that such additional

Art. 20

Duty to provide information when concluding

contracts other than distance and off-premises

contracts

3. In contracts other than distance and off-premises contracts, a trader has a duty toprovide the following information to the

consumer, in a clear and comprehensiblemanner before the contract is concluded or

the consumer is bound by any offer, if thatinformation is not already apparent from

the context:

(j) the main characteristics of the goods,digital content or related services to

be supplied, to an extent appropriateto the medium of communication and

to the goods, digital content orrelated services;

(k) the total price and additional chargesand costs, in accordance with Article

14(1);

(l) the identity of the trader, such as thetrader's trading name, the

geographical address at which it is

established and its telephone number;

(=)


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charges may be payable;

(d) where applicable, the arrangements for

payment, delivery, performance, the timeby which the trader undertakes to deliverthe goods or to perform the service, and

the traders complaint handling policy;

(e) in addition to a reminder of theexistence of a legal guarantee of

conformity for goods, the existence andthe conditions of after-sales services and

commercial guarantees, where applicable;

(f) the duration of the contract, where

applicable, or, if the contract is ofindeterminate duration or is to be extendedautomatically, the conditions for

terminating the contract;

(g) where applicable, the functionality,including applicable technical protection

measures, of digital content;

(h) where applicable, any relevant

interoperability of digital content withhardware and software that the trader is

aware of or can reasonably be expected tohave been aware of.

2. Paragraph 1 shall also apply to contractsfor 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

(m) the contract terms in accordance withpoints (a) and (b) of Article 16;

(n) where applicable, the existence andthe conditions of the trader's after-

sale services, commercial guaranteesand complaints handling policy;

(o) where applicable, the functionality,including applicable technical

protection measures of digitalcontent; and

(p) where applicable, any relevantinteroperability of digital content

with hardware and software which

the trader is aware of or can beexpected to have been aware of.

4. This Article does not apply where thecontract involves a day-to-day transactionand is performed immediately at the time

of its conclusion.

Electricity and

natural gas, as well

as water and other


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supplied on a tangible medium.

3. Member States shall not be required to

apply paragraph 1 to contracts whichinvolve day-to-day transactions and whichare performed immediately at the time of

their conclusion.

4. Member States may adopt or maintainadditional pre-contractual information

requirements for contracts to which thisArticle applies.

types of gas which

are not put up forsale in a limited

volume or setquantity are outside

the scope of theproposal.

CESL does notallow MS to add

furtherrequirements.

Burden of proof Art. 6(9)

As regards compliance with the information

requirements laid down in this Chapter, theburden of proof shall be on the trader.

Art. 21

The trader bears the burden of proof that it has

provided the information required by this Section.

(+) The burden of

proof is on the trader

in both distance andoff-premises

contacts and incontracts other than

distance and off-premises, the latter

being regulated on aminimumharmonisation basis.

Breach of

information

duties

Art. 6( 6):

If the trader has not complied with the

information requirements on additional charges

or other costs as referred to in point (e) ofparagraph 1, or on the costs of returning the

goods as referred to in point (i) of paragraph 1,the consumer shall not bear those charges or

costs.

Art. 30 Remedies for breach of information duties

1. A party which has failed to comply with any duty

imposed by this Chapter is liable for any losscaused to the other party by such failure.

2. Where the trader has not complied with theinformation requirements relating to additional

charges or other costs as referred to in Article 14 oron the costs of returning the goods as referred to in

(+) concerning the

liability for breach,

which is not

harmonised in the

CRD


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Art. 10:

Omission of information on the right of

withdrawal

1. If the trader has not provided the consumerwith the information on the right of

withdrawal as required by point (h) of Article6(1), the withdrawal period shall expire 12

months from the end of the initial withdrawalperiod, as determined in accordance with

Article 9(2).

2. If the trader has provided the consumer

with the information provided for inparagraph 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 17(2) the consumer is not liable to pay the

additional charges and other costs.

3. The remedies provided under this Article are

without prejudice to any remedy which may be

available under Article 42 (2), Article 48 or Article

49.

4. In relations between a trader and a consumer the

parties may not, to the detriment of the consumer,

exclude the application of this Article or derogatefrom or vary its effects.

Art. 42( 2):

Where the trader has not provided the consumer

with the information referred to in Article 17 (1),

the withdrawal period expires:

(a) after one year from the end of the initialwithdrawal period, as determined in

accordance with paragraph 1; or

(b) where the trader provides the consumerwith the information required within one

year from the end of the withdrawal periodas determined in accordance with

paragraph 1, after fourteen days from theday the consumer receives the information.

(=)


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Right of

withdrawal

Art. 9

Right of withdrawal

1. Save where the exceptions provided forin 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 withoutincurring any costs other than those

provided for in Article 13(2) and Article

14.

3. The Member States shall not prohibitthe contracting parties from performing

their contractual obligations during thewithdrawal period. Nevertheless, in the

case of off-premises contracts, Member

States may maintain existing nationallegislation prohibiting the trader fromcollecting the payment from the consumer

during the given period after theconclusion of the contract.

Article 40(1) Right to withdraw

1. During the period provided for in Article 42, theconsumer has a right to withdraw from the contract

without giving any reason, and at no cost to theconsumer except as provided in Article 45, from:

(a) a distance contract;

(b) an off-premises contract, provided that

the price or, where multiple contracts wereconcluded at the same time, the total price

of the contracts exceeds EUR 50 or the

equivalent sum in the currency agreed forthe contract price at the time of the

conclusion of the contract.

See alsoArticle 42(1) Withdrawal period

(=)

In some cases Art.9(3) CRD leaves

MS an option whichhas not been

exercised in the

CESL.

Exceptions Article 16 Exceptions from the right ofwithdrawal

Member States shall not provide for the

right of withdrawal set out in Articles 9 to15 in respect of distance and off-premises

contracts as regards the following:

(a) service contracts after the service hasbeen fully performed if the performance

Article 40

2. Paragraph 1 does not apply to:

(a) a contract concluded by means of anautomatic vending machine or automated

commercial premises;

(b) a contract for the supply of foodstuffs,beverages or other goods which are

(=)


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has begun with the consumers prior

express consent, and with theacknowledgement that he will lose his

right of withdrawal once the contract hasbeen fully performed by the trader;

(b) the supply of goods or services forwhich the price is dependent on

fluctuations in the financial market whichcannot be controlled by the trader and

which may occur within the withdrawal

period;

(c) the supply of goods made to theconsumers specifications or clearly

personalised;

(d) the supply of goods which are liable to

deteriorate or expire rapidly;

(e) the supply of sealed goods which arenot suitable for return due to health

protection or hygiene reasons and wereunsealed after delivery;

(f) the supply of goods which are, afterdelivery, according to their nature,

inseparably mixed with other items;

(g) the supply of alcoholic beverages, the

price of which has been agreed upon at thetime 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

intended for current consumption in the

household and which are physicallysupplied by the trader on frequent and

regular rounds to the consumer's home,residence or workplace;

(c) a contract for the supply of goods orrelated services for which the price

depends on fluctuations in the financialmarket which cannot be controlled by the

trader and which may occur within the

withdrawal period;

(d) a contract for the supply of goods or

digital content which are made to the

consumers specifications, or are clearly

personalised;

(e) a contract for the supply of goods

which are liable to deteriorate or expire

rapidly;

(f) a contract for the supply of alcoholic

beverages, the price of which has beenagreed upon at the time of the conclusion

of the sales contract, the delivery of whichcan only take place after 30 days from the

time of conclusion of the contract and theactual value of which is dependent on

fluctuations in the market which cannot be

controlled by the trader;

(g) a contract for the sale of a newspaper,


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fluctuations in the market which cannot be

controlled by the trader;

(h) contracts where the consumer hasspecifically requested a visit from thetrader for the purpose of carrying out

urgent repairs or maintenance. If, on theoccasion of such visit, the trader provides

services in addition to those specificallyrequested 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 sealedvideo recordings or sealed computer

software which were unsealed afterdelivery;

(j) the supply of a newspaper, periodical ormagazine with the exception of

subscription contracts for the supply of

such publications;

(k) contracts concluded at a public auction;

(l) the provision of accommodation otherthan for residential purpose, transport of

goods, car rental services, catering orservices related to leisure activities if thecontract provides for a specific date or

period of performance;

(m) the supply of digital content which is

periodical or magazine with the exception

of subscription contracts for the supply ofsuch publications;

(h) a contract concluded at a public

auction; and

(i) a contract for catering or services

related to leisure activities which provides

for a specific date or period of

performance.

3. Paragraph 1 does not apply in the following

situations:

(a) where the goods supplied were sealed,

have been unsealed by the consumer and

are not then suitable for return due tohealth protection or hygiene reasons;

(b) where the goods supplied have,

according to their nature, been inseparablymixed with other items after delivery;

(c) where the goods supplied were sealedaudio or video recordings or computer

software and have been unsealed after

delivery;

(d) where the supply of digital content

which is not supplied on a tangible

medium has begun with the consumer's

prior express consent and with the


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not supplied on a tangible medium if the

performance has begun with theconsumers prior express consent and his

acknowledgment that he thereby loses hisright of withdrawal.

Art. 3, 3. (k): Directive does not apply tocontracts for the supply of foodstuffs,

beverages or other goods intended for currentconsumption in the household, and which are

physically supplied by a trader on frequent and

regular rounds to the consumer's home,residence or workplace;

Art. 3, 3. (l): Directive does not apply to

contracts concluded by means of automatic

vending machines or automated commercialpremises

acknowledgement by the consumer of

losing the right to withdraw;

(e) the consumer has specifically requested

a visit from the trader for the purpose of

carrying out urgent repairs or maintenance.

Where on the occasion of such a visit thetrader provides related services in addition

to those specifically requested by theconsumer or goods other than replacement

parts necessarily used in performing the

maintenance or in making the repairs, theright of withdrawal applies to those

additional related services or goods.

4. Where the consumer has made an offer which, if

accepted, would lead to the conclusion of a contractfrom which there would be a right to withdraw

under this Chapter, the consumer may withdraw theoffer even if it would otherwise be irrevocable.

Omission of

informationArticle 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 shallexpire 12 months from the end of theinitial withdrawal period, as determined in

accordance with Article 9(2).

2. If the trader has provided the consumer

Article 42(2)

Where the trader has not provided the consumerwith the information referred to in Article 17 (1),the withdrawal period expires:

(a) after one year from the end of the initialwithdrawal period, as determined in

accordance with paragraph 1; or

(b) where the trader provides the consumer

with the information required within one

(=)


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with the information provided for in

paragraph 1 of this Article within 12months from the day referred to in Article

9(2), the withdrawal period shall expire 14days after the day upon which the

consumer receives that information.

year from the end of the withdrawal period

as determined in accordance withparagraph 1, after fourteen days from the

day the consumer receives the information.

Exercise right of

withdrawal

Art. 11 Exercise of the right of withdrawal

1. Before the expiry of the withdrawalperiod, the consumer shall inform the

trader of his decision to withdraw from thecontract. For this purpose, the consumer

may either:

(a) use the model withdrawal form as set

out in Annex I(B); or

(b) make any other unequivocal statement

setting out his decision to withdraw fromthe contract.

Member States shall not provide for any

formal requirements applicable to themodel withdrawal form other than those

set out in Annex I(B).

2. The consumer shall have exercised hisright of withdrawal within the withdrawal

period referred to in Article 9(2) and

Article 10 if the communicationconcerning the exercise of the right of

withdrawal is sent by the consumer before

that period has expired.

3. The trader may, in addition to the

Art. 41 Exercise of right to withdraw

1. The consumer may exercise the right to withdraw

at any time before the end of the period of

withdrawal provided for in Article 42.

2. The consumer exercises the right to withdraw by

notice to the trader. For this purpose, the consumer

may use either the Model withdrawal form set out

in Appendix 2 or any other unequivocal statementsetting out the decision to withdraw.

3. Where the trader gives the consumer the optionto withdraw electronically on its trading website,

and the consumer does so, the trader has a duty tocommunicate to the consumer an acknowledgement

of receipt of such a withdrawal on a durable

medium without delay. The trader is liable for any

loss caused to the other party by a breach of this

duty.

4. A communication of withdrawal is timely if sent

before the end of the withdrawal period.

5. The consumer bears the burden of proof that the

right of withdrawal has been exercised inaccordance with this Article.

(=)


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possibilities referred to in paragraph 1,

give the option to the consumer toelectronically fill in and submit either the

model withdrawal form set out in AnnexI(B) or any other unequivocal statement on

the traders website. In those cases the

trader shall communicate to the consumeran acknowledgement of receipt of such awithdrawal on a durable medium withoutdelay.

4. The burden of proof of exercising theright of withdrawal in accordance with this

Article shall be on the consumer.

Withdrawal

period

Art. 9(2)

Without prejudice to Article 10, the

withdrawal period referred to in paragraph1 of this Article shall expire after 14 days

from:

(a) in the case of service contracts, the dayof the conclusion of the contract;

(b) in the case of sales contracts, the day

on which the consumer or a third partyother than the carrier and indicated by the

consumer acquires physical possession ofthe 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

Art. 42 Withdrawal period

1.The withdrawal period expires after fourteen days

from:

(a) the day on which the consumer hastaken delivery of the goods in the case of asales contract, including a sales contract

under which the seller also agrees toprovide related services;

(b) the day on which the consumer has

taken delivery of the last item in the case

of a contract for the sale of multiple goods

ordered by the consumer in one order anddelivered separately, including a contractunder which the seller also agrees to

provide related services;

(=)

The CESL uses asthe starting point of

the withdrawal

period the momentwhen the consumer

"takes delivery ofthe goods", which is

defined in Article

129 as the moment

where the buyer

does all the acts

which could be

expected in order toenable to seller toperform the

obligation to deliver

and takes over the


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physical possession of the last good;

(ii) in the case of delivery of a good

consisting of multiple lots or pieces, theday on which the consumer or a third partyother than the carrier and indicated by the

consumer acquires physical possession ofthe last lot or piece;

(iii) in the case of contracts for regular

delivery of goods during defined period oftime, the day on which the consumer or a

third party other than the carrier and

indicated by the consumer acquiresphysical possession of the first good;

(c) in the case of contracts for the supplyof water, gas or electricity, where they are

not put up for sale in a limited volume orset quantity, of district heating or of digital

content which is not supplied on a tangiblemedium, the day of the conclusion of the

contract.

(c) the day on which the consumer has

taken delivery of the last lot or piece in the

case of a contract where the goods consist

of multiple lots or pieces, including acontract under which the seller also agrees

to provide related services;

(d) the day on which the consumer has

taken delivery of the first item where thecontract is for regular delivery of goods

during a defined period of time, including a

contract under which the seller also agrees

to provide related services;

(e) the day of the conclusion of the contract

in the case of a contract for related services

concluded after the goods have beendelivered;

(f) the day when the consumer has taken

delivery of the tangible medium in

accordance with point (a) in the case of a

contract for the supply of digital contentwhere the digital content is supplied on a

tangible medium;

(g) the day of the conclusion of the

contract in the case of a contract where thedigital content is not supplied on a tangible

medium.

goods or the

documentsrepresenting the

goods or digitalcontent, as required

by the contract.

Effects of

withdrawal

Art. 12 Art. 43 Effects of withdrawal (=)


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Effects of withdrawal

The exercise of the right of withdrawalshall terminate the obligations of the

parties:

(a) to perform the distance or off-premisescontract; or

(b) to conclude the distance or off-premises contract, in cases where an offerwas made by the consumer.

Withdrawal terminates the obligations of both

parties under the contract:

(a) to perform the contract; or

(b) to conclude the contract in cases where anoffer was made by the consumer.

Obligation of thetrader in case of

withdrawal

Art. 13

Obligations of the trader in the event of

withdrawal

1. The trader shall reimburse all paymentsreceived from the consumer, including, if

applicable, the costs of delivery without

undue delay and in any event not later than14 days from the day on which he is

informed of the consumers decision to

withdraw from the contract in accordance

with Article 11.

The trader shall carry out the

reimbursement referred to in the firstsubparagraph using the same means ofpayment as the consumer used for the

initial transaction, unless the consumer hasexpressly agreed otherwise and provided

that the consumer does not incur any fees

Art. 44 Obligations of the trader in the event of

withdrawal

1. The trader must reimburse all payments receivedfrom the consumer, including, where applicable, the

costs of delivery without undue delay and in anyevent not later than fourteen days from the day on

which the trader is informed of the consumer'sdecision to withdraw from the contract in

accordance with Article 41. The trader must carryout such reimbursement using the same means of

payment as the consumer used for the initialtransaction, unless the consumer has expresslyagreed otherwise and provided that the consumer

does not incur any fees as a result of suchreimbursement.

2. Notwithstanding paragraph 1, the trader is notrequired to reimburse the supplementary costs, if

the consumer has expressly opted for a type ofdelivery other than the least expensive type of

(=)


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as a result of such reimbursement.

2. Notwithstanding paragraph 1, the trader

shall not be required to reimburse thesupplementary costs, if the consumer hasexpressly opted for a type of delivery other

than the least expensive type of standarddelivery offered by the trader.

3. Unless the trader has offered to collect

the goods himself, with regard to salescontracts, the trader may withhold the

reimbursement until he has received the

goods back, or until the consumer hassupplied evidence of having sent back the

goods, whichever is the earliest.

standard delivery offered by the trader.

3. In the case of a contract for the sale of goods, the

trader may withhold the reimbursement until it has

received the goods back, or the consumer has

supplied evidence of having sent back the goods,

whichever is earlier, unless the trader has offered tocollect the goods.

Obligation of the

consumer in caseof withdrawal

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 sendback the goods or hand them over to the

trader or to a person authorised by thetrader to receive the goods, without undue

delay and in any event not later than 14days 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

Article 45 Obligations of the consumer in the

event of withdrawal

1. The consumer must send back the goods or hand

them over to the trader or to a person authorised bythe trader without undue delay and in any event not

later than fourteen days from the day on which theconsumer communicates the decision to withdraw

from the contract to the trader in accordance with

Article 41, unless the trader has offered to collectthe goods. This deadline is met if the consumer

sends back the goods before the period of fourteendays has expired.

2. The consumer must bear the direct costs of

(=)


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shall be met if the consumer sends back

the goods before the period of 14 days hasexpired.

The consumer shall only bear the directcost of returning the goods unless the

trader has agreed to bear them or the traderfailed to inform the consumer that the

consumer has to bear them.

In off-premises contracts where the goodshave been delivered to the consumers

home at the time of the conclusion of the

contract, the trader shall at his ownexpense collect the goods if, by their

nature, those goods cannot normally bereturned by post.2. The consumer shall

only be liable for any diminished value ofthe goods resulting from the handling of

the goods other than what is necessary toestablish the nature, characteristics andfunctioning of the goods. The consumer

shall in any event not be liable fordiminished value of the goods where the

trader has failed to provide notice of theright of withdrawal in accordance with

point (h) of Article 6(1).(See Article 44(4)CESL).

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

returning the goods, unless the trader has agreed to

bear those costs or the trader failed to inform theconsumer that the consumer has to bear them.

3. The consumer is liable for any diminished value

of the goods only where that results from handling

of the goods in any way other than what isnecessary to establish the nature, characteristics and

functioning of the goods. The consumer is not liablefor diminished value where the trader has not

provided all the information about the right to

withdraw in accordance with Article 17 (1).

4. Without prejudice to paragraph 3, the consumer

is not liable to pay any compensation for the use of

the goods during the withdrawal period.

5. Where the consumer exercises the right ofwithdrawal after having made an express request for

the provision of related services to begin during the

withdrawal period, the consumer must pay to the

trader an amount which is in proportion to what hasbeen provided before the consumer exercised 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 must be

calculated on the basis of the total price agreed in

the contract. Where the total price is excessive, the

proportionate amount must be calculated on thebasis of the market value of what has been

provided.


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has been provided until the time the

consumer has informed the trader of theexercise of the right of withdrawal, in

comparison with the full coverage of thecontract. The proportionate amount to be

paid by the consumer to the trader shall be

calculated on the basis of the total priceagreed in the contract. If the total price isexcessive, the proportionate amount shallbe 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 thesupply of water, gas or electricity, wherethey are not put up for sale in a limited

volume or set quantity, or of districtheating, in full or in part, during the

withdrawal period, where:

(i) the trader has failed to provideinformation 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 withArticle 7(3) and Article 8(8); or

(b) the supply, in full or in part, of digitalcontent which is not supplied on a tangible

medium where:

(i) the consumer has not given his prior

6. The consumer is not liable for the cost for:

(a) the provision of related services, in fullor in part, during the withdrawal period,

where:

(i) the trader has failed to provide

information in accordance withArticle 17(1) and (3); or

(ii) the consumer has not expresslyrequested performance to beginduring the withdrawal period in

accordance with Article 18(2) andArticle 19(6);

(b) for the supply, in full or in part, ofdigital content which is not supplied on a

tangible medium where:

(i) the consumer has not given prior

express consent for the supply ofdigital content to begin before the

end of the period of withdrawalreferred to in Article 42(1);

(ii) the consumer has not

acknowledged losing the right of

withdrawal when giving the consent;

or

(iii) the trader has failed to provide

the confirmation in accordance with


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express consent to the beginning of the

performance before the end of the 14-dayperiod referred to in Article 9;

(ii) the consumer has not acknowledgedthat he loses his right of withdrawal when

giving his consent; or(iii) the trader has failed to provideconfirmation 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 notincur any liability as a consequence of the

exercise of the right of withdrawal.

Article 18(1) and Article 19(5).

Except as provided for in this Article, the consumer

does not incur any liability through the exercise of

the right of withdrawal.

Article 44(4)

In the case of an off-premises contract where the

goods have been delivered to the consumers home

at the time of the conclusion of the contract, thetrader must collect the goods at its own cost if the

goods by their nature cannot be normally returned

by post.

Ancillary

contracts

Art. 15 Effects of the exercise of the right of

withdrawal on ancillary contracts

1. Without prejudice to Article 15 ofDirective 2008/48/EC of the European

Parliament and of the Council of 23 April2008 on credit agreements for consumers

[20], if the consumer exercises his right of

withdrawal from a distance or an off-premises contract in accordance with

Articles 9 to 14 of this Directive, anyancillary contracts shall be automatically

terminated, without any costs for theconsumer, except as provided for in

Article 13(2) and in Article 14 of this

Directive.

2. The Member States shall lay down

Art. 46 Ancillary contracts

1. Where a consumer exercises the right ofwithdrawal from a distance or an off-premises

contract in accordance with Articles 41 to 45, anyancillary contracts are automatically terminated atno cost to the consumer except as provided in

paragraphs 2 and 3. []

2. The provisions of Articles 43, 44 and 45 apply

accordingly to ancillary contracts to the extent that

those contracts are governed by the Common

European Sales Law.

3. For ancillary contracts which are not governed by

the Common European Sales Law the applicable

law governs the obligations of the parties in the

(=)


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detailed rules on the termination of such

contracts.

event of withdrawal.

Time of Delivery Art. 18(1) Delivery

1. Unless the parties have agreed otherwise

on the time of delivery, the trader shalldeliver the goods by transferring the

physical possession or control of the goodsto the consumer without undue delay, but

not later than 30 days from the conclusionof the contract.

Article 96 Time of delivery

1. Where the time of delivery cannot be otherwise

determined, the goods or the digital content must bedelivered without undue delay after the conclusion

of the contract.

2. In contracts between a trader and a consumer,unless agreed otherwise by the parties, the trader

must deliver the goods or the digital content not

later than 30 days from the conclusion of the

contract.

(=)

A distinction

between B2B and

B2C contracts was

necessary, hence the

need for twoparagraphs.

Remedies forlate performance

Art. 18(2) Delivery

2. Where the trader has failed to fulfil hisobligation to deliver the goods at the timeagreed upon with the consumer or within

the time limit set out in paragraph 1, theconsumer shall call upon him to make the

delivery within an additional period oftime appropriate to the circumstances. If

the trader fails to deliver the goods withinthat 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

Article 115 Termination for delay in delivery after

notice fixing additional time for performance

A buyer may terminate the contract in a case of

delay in delivery which is not in itself fundamentalif the buyer gives notice fixing an additional period

of time of reasonable length for performance andthe seller does not perform within that period.

Article 114(1)Termination for non-performance

1. A buyer may terminate the contract within the

meaning of Article 8 if the sellers non-performance

(=)

(=)


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where delivery within the agreed delivery

period is essential taking into account allthe circumstances attending the conclusion

of the contract or where the consumerinforms the trader, prior to the conclusion

of the contract, that delivery by or on a

specified date is essential. In those cases, ifthe trader fails to deliver the goods at thetime agreed upon with the consumer orwithin the time limit set out in paragraph

1, the consumer shall be entitled toterminate 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.

under the contract is fundamental within the

meaning of Article 87 (2).

Article 87(2)Non-performance of an obligation by

one party is fundamental if:

(q) it substantially deprives the otherparty of what that party was entitledto expect under the contract, unless at

the time of conclusion of the contract

the non-performing party did notforesee and could not be expected to

have foreseen that result; or

(r) it is of such a nature as to make itclear that the non-performing partysfuture performance cannot be relied

on.

Article 116 Termination for anticipated non-performance

A buyer may terminate the contract beforeperformance is due if the seller has declared, or it is

otherwise clear, that there will be a non-

performance, and if the non-performance would besuch as to justify termination.

Article 172(1) Restitution on avoidance or

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1. Where a contractis avoided or terminated by

either party, each party is obliged to return what

that party (the recipient) has received from the

other party.

Art. 106Overview of buyer's remedies

1. In the case of non-performance of an obligationby the seller, the buyer may do any of the

following:

(a) require performance, which includesspecific performance, repair or

replacement of the goods or digital

content, under Section 3 of this Chapter;

(b) withhold the buyers own performanceunder Section 4 of this Chapter;

(c) terminate the contract under Section 5of this Chapter and claim the return of any

price already paid, under Chapter 17;

(d) reduce the price under Section 6 of this

Chapter; and

(e) claim damages under Chapter 16.

(+) Specifies the

other remedieswhich the consumer

can have recourseto.

Fees for means

of paymentArticle 19 Fees for the use of means of

payment

Member States shall prohibit traders from

Art. 124(4) Means of payment

In a contract between a trader and a consumer, the

consumer is not liable, in respect of the use of a

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charging consumers, in respect of the use

of a given means of payment, fees thatexceed the cost borne by the trader for the

use of such means.

given means of payment, for fees that exceed the

cost borne by the trader for the use of such means.

Passing of risk

Art 145

Art. 20 Passing of risk

In contracts where the trader dispatches thegoods to the consumer, the risk of loss of

or damage to the goods shall pass to theconsumer when he or a third party

indicated by the consumer and other thanthe carrier has acquired the physical

possession of the goods. However, the riskshall pass to the consumer upon delivery to

the carrier if the carrier was commissionedby the consumer to carry the goods and

that choice was not offered by the trader,

without prejudice to the rights of theconsumer against the carrier.

Art. 142 Passing of risk in a consumer sales

contract

1. In a consumer sales contract, the risk passes at

the time when the consumer or a third party

designated by the consumer, not being the carrier,

has acquired the physical possession of the goods or

the tangible medium on which the digital content issupplied.

2. In a contract for the supply of digital content not

supplied on a tangible medium, the risk passes atthe time when the consumer or a third party

designated by the consumer for this purpose hasobtained the control of the digital content.

3. Except where the contract is a distance or off-premises contract, paragraphs 1 and 2 do not apply

where the consumer fails to perform the obligation

to take over the goods or the digital content and the

non-performance is not excused under Article 88. In

this case, the risk passes at the time when theconsumer, or the third party designated by the

consumer, would have acquired the physical

possession of the goods or obtained the control ofthe digital content if the obligation to take them

over had been performed.

4. Where the consumer arranges the carriage of the

(+) It covers also

digital content

which is notsupplied on a

tangible medium.


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goods or the digital content supplied on a tangible

medium and that choice was not offered by thetrader, the risk passes when the goods or the digital

content supplied on a tangible medium are handedover to the carrier, without prejudice to the rights of

the consumer against the carrier.

5. The parties may not, to the detriment of the

consumer, exclude the application of this Article orderogate from or vary its effects.

Art. 141 Identification of goods or digital content

to contract

The risk does not pass to the buyer until the goodsor the digital content are clearly identified as the

goods or digital content to be supplied under the

contract, whether by the initial agreement, by noticegiven to the buyer or otherwise.

Article 21 Communication by telephone

Member States shall ensure that where thetrader operates a telephone line for the

purpose of contacting him by telephone inrelation to the contract concluded, the

consumer, when contacting the trader isnot bound to pay more than the basic rate.

The first subparagraph shall be withoutprejudice to the right of

telecommunication services providers to

charge for such calls.

This provision was

not implemented in

the CESL because itwas not considered

to be of a

contractual nature.


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Additional

paymentsArticle 22 Additional payments

Before the consumer is bound by thecontract or offer, the trader shall seek the

express consent of the consumer to any

extra payment in addition to the

remuneration agreed upon for the tradersmain contractual obligation. If the traderhas not obtained the consumers express

consent but has inferred it by using default

options which the consumer is required to

reject in order to avoid the additional

payment, the consumer shall be entitled to

reimbursement of this payment.

Article 71 Additional payments in contracts

between a trader and a consumer

1. In a contract between a trader and a consumer, a

contract term which obliges the consumer to make

any payment in addition to the remuneration stated

for the traders main contractual obligation, inparticular where it has been incorporated by the use

of default options which the consumer is required toreject in order to avoid the additional payment,

is not binding on the consumer unless, before the

consumer is bound by the contract, the consumerhas expressly consented to the additional payment.

If the consumer has made the additional payment,the consumer may recover it.

2. The parties may not, to the detriment of the

consumer, exclude the application of this Article orderogate from or vary its effects.

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Table II: Consumer Sales Directive 99/44/EC: minimum harmonisation directive

Existing acquis provision Corresponding provisions of the draft proposal

for a CESL

Level of protection

in the CESL

Scope Art. 1(2)(b) Scope and definition

"consumer goods": shall mean anytangible movable item, with the exception

of:

- goods sold by way of execution orotherwise by authority of law,

- water and gas where they are not put upfor sale in a limited volume or set quantity,

- electricity;

Art. 1(3) and (4)

3. Member States may provide that theexpression "consumer goods" does not

cover second-hand goods sold at publicauction where consumers have the

opportunity of attending the sale in person.

4. Contracts for the supply of consumer

goods to be manufactured or producedshall also be deemed contracts of sale for

the purpose of this Directive.

Article 2

(h)'goods': means any tangible movable items; it

excludes:(i) electricity and natural gas; and

(b) water and other types of gas unless they are put

up for sale in a limited volume or set quantity;

(k)'sales contract'means any contract under

which the trader ('the seller') transfers or undertakes

to transfer the ownership of goods to another person

('the buyer'), and the buyer pays or undertakes topay the price thereof; it includes a contract for the

supply of goods to be manufactured or produced

and excludes contracts for the sale on execution orotherwise involving the exercise of public authority;

Article 5 CESLR: Contracts for which the

Common European Sales Law can be used

The Common European Sales Law may be used for:

(a) sales contracts;

(b) contracts for the supply of digital contentwhether or not supplied on a tangiblemedium which can be stored, processed or

accessed, and re-used by the user,irrespective of whether the digital content

(+)Because of

extension of the

scope to digitalcontent whether

supplied on a

tangible medium ornot.

Article 1(3) of the

Consumer SalesDirective gives anoption to the

Member Stateswhich is notexercised in the

proposal


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is supplied in exchange for the payment of

a price.

Duty ofconformity with

the contract

Art. 2 (1)

The seller must deliver goods to the consumer

which are in conformity with the contract ofsale.

Art. 91(c)

Main obligations of the sellerThe seller of goods or the supplier of digital content(in this part referred to as 'the seller') must

(a) deliver the goods or supply the digitalcontent;

(b) transfer the ownership of the goods,

including the tangible medium on whichthe digital content is supplied;

(c) ensure that the goods or the digital contentare in conformity with the contract;

(d) ensure that the buyer has the right to usethe digital content in accordance with the

contract; and

(e) deliver such documents representing or

relating to the goods or documents relatingto the digital content as may be required by

the contract.

(+)

Test of

conformity

Art. 2(2)

Consumer goods are presumed to be in

conformity with the contract if they:Article 99

comparison acquis proposal

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