Directives 85/577/EEC on doorstep
selling and 97/7/EC on distance
selling – objectives and scope
Ieva Baldina-Bruklite
Consumer Rights Protection centre of Latvia
Content
Introduction
1. Directive 85/577/EEC on doorstep selling;
2. Objectives of Directive 85/577/EEC on doorstep selling;
3. Scope of Directive 85/577/EEC on doorstep selling;
4. Important consumer’s rights under the Directive 85/577/EEC
on doorstep selling;
5. Directive 97/7/EC on distance selling;
6. Objectives of Directive 97/7/EC on distance selling;
7. Scope of Directive 97/7/EC on distance selling;
8. Important consumer’s rights under the Directive 97/7/EC on
distance selling;
9. Proposal for a Directive of the European Parliament and of
the Council on consumer rights.
1. Directive 85/577/EEC on doorstep
selling
• The Doorstep (direct) selling directive:
• Indicates the contracts on which the Directive applies and
does not apply (Art.1,3);
• Includes the definitions of “consumer” and “trader” (Art. 2);
• Regulates information on cancellation rights and the process
of the usage of cancellation rights (Art. 4,5,7).
1. Directive 85/577/EEC on doorstep
selling
• The Doorstep (Direct) selling directive:
• Is minimum harmonisation directive. MS are allowed to adopt
more favourable provisions to protect consumers in the field
which it covers.
• Many MS have used these rights:
• on definition of consumer;
• on inclusion of situations other than those covered by Art. 3
of Doorstep selling directive or prohibiting doorstep selling of
specific goods in general;
• not making use of restrictions/exemptions provided for by
Doorstep selling directive;
• extending the time limits of usage of cancellation rights from
doorstep contract;
• determining other instruments (such as licensing, time
restrictions on doorstep selling a.o.).
1. Directive 85/577/EEC on doorstep
selling
•
•
•
•
Other relevant legislation in the field:
Directive 2005/29/EC on unfair commercial practices;
Directive 1993/13/EEC on unfair contract terms;
Directive 1999/44/EC concerning sale of consumer goods
and associated guarantees;
• a.o.
2. Objectives of Directive 85/577/EEC on
doorstep selling
• To prevent disparity between MS legislation in the field of
commercial practices used by traders in the doorstep (direct)
selling;
• To improve the functioning of the common market by
implementing common rules on doorstep selling;
• To protect consumers against unfair commercial practices in
respect of doorstep selling;
• To equal the status of consumer in conclusion the doorstep
contract with trader by giving consumer the cancellation
rights from the doorstep contract and determining trader’s
obligation to give the information to consumer about such
kind of rights.
3.Scope of Directive 85/577/EEC on
doorstep selling
• The Doorstep selling directive applies only to B2C
relationship.
• Definition of “consumer”:
• Consumer is “a natural person who (…) is acting for
purposes which can be regarded as outside his trade or
profession” (Art. 2);
• Consumer can be only a natural person;
• The purpose for conclusion of the contract should not be
linked with person’s trade or profession (not in present and
not in future) (ECJ case Benincasa, C-269/95, ECJ case Di
Pinto C-361/89);
• In case of conclusion of contract with “mixed purpose” the
purpose linked with person’s trade should be very negligible
in overall context of the contract (ECJ case Gruber, C464/01).
3.Scope of Directive 85/577/EEC on
doorstep selling
• Implementation of “consumer’s” definition:
• Many MS have introduced a common definition of
"consumer" applicable to several or all of their transposition
laws for the individual consumer protection directives;
• In some MS definition is broader (for example, including legal
persons).
3.Scope of Directive 85/577/EEC on
doorstep selling
• Definition of “trader”:
• A “trader” is a natural or legal person who, “for the
transaction in question, acts in his commercial or
professional capacity, and anyone acting in the name or on
behalf of a trader” (Art. 2).
• Many MS have implemented the broader concept of “trader”
(for example, non profit organisations, state institutions are
included in definition).
3.Scope of Directive 85/577/EEC on
doorstep selling
• The Directive’s provisions apply to “contracts under
which a trader supplies goods or services to a consumer
and which are concluded:
- during an excursion organised by the trader away from his
business premises, or
- during a visit by a trader:
(i) to the consumer’s home or to that of another consumer;
(ii) to the consumer’s place of work;
• where the visit does not take place at the express request of
the consumer” (Art. 1 para. 1).
3.Scope of Directive 85/577/EEC on
doorstep selling
• A contract concluded in a situation in which a trader has
invited a consumer to go in person to a specified place which
is different from the premises where the trader usually
carries on his business, in order to present to him the
products and services he is offering, must be considered to
have been concluded during an excursion organised by the
trader away from his business premises (ECJ case Travel
VAC, C-423/97);
• When a third party intervenes in the name or on behalf of a
trader to negotiate or conclude a contract, the application of
the Directive cannot be made subject to the condition that
the trader was, or should have been, aware that the contract
was concluded in a doorstep selling situation (ECJ case
Crailsheimer Volksbank, C-229/04).
3.Scope of Directive 85/577/EEC on
doorstep selling
• Meaning of “contracts under which a trader supplies
goods or services goods and services” in the Directive:
• A contract of guarantee concluded by a natural person who
is not acting in the course of his trade or profession does not
come within the scope of the directive where it guarantees
repayment of a debt contracted by another person who, for
his part, is acting within the course of his trade or profession
(ECJ case Bayerische Hypotheken- und Wechselbank, C45/96).
3.Scope of Directive 85/577/EEC on
doorstep selling
• The Directive applies to contracts for the supply of goods or
services other than those concerning which the consumer
requested the visit of the trader, provided that when he
requested the visit the consumer did not know, or could not
reasonably have known, that the supply of those other goods
or services formed part of the trader's commercial or
professional activities (Art. 1 para. 2).
3.Scope of Directive 85/577/EEC on
doorstep selling
• The Directive applies to contracts in respect of which an offer
was made by the consumer under conditions similar to those
described although the consumer was not bound by that
offer before its acceptance by the trader (Art. 1 para. 3).
• The Directive applies to offers made contractually by the
consumer under conditions similar to those described where
the consumer is bound by his offer (Art. 1 para. 4).
• That means that the consumer is able to withdraw from an
offer made in a doorstep situation, irrespective of whether
the offer is binding (as it usually is, e.g., under German law)
or not binding (as it usually is, e.g., under English law).
3.Scope of Directive 85/577/EEC on
doorstep selling
• Exemptions from the scope of the Directive:
• The MS may decide that the Directive shall apply only to
contracts for which the payment to be made by the consumer
exceeds a specified amount. This amount may not exceed
60 ECU (Art. 3 para. 1);
• MS may not apply the Directive to contracts for the supply of
goods or services having a direct connection with the goods
or services concerning which the consumer requested the
visit of the trader (Art. 3 para. 3).
3.Scope of Directive 85/577/EEC on
doorstep selling
• The Directive shall not apply to:
• contracts relating to immovable property;
• For example, sale of immovable property which is a
component of an investment scheme financed by a loan for
which the negotiations prior to the conclusion of the contract
were held in a doorstep-selling situation (ECJ case Deutsche
Bausparkasse Badenia AG, C-350/03).
• contracts for the supply of foodstuffs or beverages or other
goods intended for current consumption in the household
and supplied by regular roundsmen;
• certain contracts concluded on the basis of a trader's
catalogue;
• insurance contracts;
• contracts for securities.
4.Important consumer’s rights under the
Directive 85/577/EEC on doorstep selling
• Information notice about consumer’s cancellation rights;
• Cancellation rights (at 7 least days from the receipt of the
notice).
• A time-limit of one year from the conclusion of the contract,
where the consumer has not received the information about
the cancellation rights can not be detemined (ECJ case
Heininger, C-481/99) .
• MS is entitled to provide that the right of cancellation of the
Directive may be exercised no later than one month from the
time at which the contracting parties have performed in full
their obligations under a contract for long-term credit, where
the consumer has been given defective notice concerning
the exercise of that right (ECJ case Hamilton, C-412/06).
5. Directive 97/7/EC on distance selling
• The Distance selling directive:
• Includes the main definitions, such as “consumer”, “supplier”
(Art. 1);
• Indicates the contracts on which the Directive does not
apply/applies partially (Art. 3);
• Foresees prior information, that should be given to consumer
before conclusion of the distance contract (Art. 4);
• Foresees information, that should be given to consumer in
confirmation of the information (Art. 5);
• Regulates the conclusion of the contract of doorstep selling,
the usage of cancellation rights and exemptions from
cancellation rights (Art. 5,6);
• Regulates performance of the contract, restrictions on the
use of certain means of distance communication (Art. 7,10).
5. Directive 97/7/EC on distance selling
• The Distance selling directive:
• Is minimum harmonisation directive. MS are allowed to adopt
more favourable provisions to protect consumers in the field
which it covers.
• Many MS used these rights:
• on broadening the notion of consumer (e.g. legal persons);
• on broadening the notion of distance selling contract (e.g. no
organised distance selling scheme required);
• not making use of restrictions/exemptions provided for by the
Directive;
• extending the time limits of usage of cancellation rights from
distance contract.
5. Directive 97/7/EC on distance selling
•
•
•
•
Other relevant legislation in the field:
Directive 2000/31/EC on electronic commerce;
Directive 2005/29/EC on unfair commercial practices;
Directive 2002/65/EC on distance marketing of consumer
financial services;
• Directive
2002/58/EC
on
privacy
and
electronic
communications;
• Directive 2007/64/EC on payment services;
• a.o.
6.Objectives of Directive 97/7/EC on
distance selling
• To promote cross-border distance selling;
• To set common principles in all MS in the field of distance
selling;
• To protect consumers concluding the contracts by using
means of distance selling;
• To put consumers who purchase goods or services through
distance communication means in a similar position to
consumers who buy goods or services in shops.
7. Scope of Directive 97/7/EC on distance
selling
• Definition of “consumer”:
• Consumer is a “natural person who, in contracts covered by
this Directive, is acting for purposes which are outside his
trade, business or profession” (Art.1 para. 2).
• Definition of “supplier”:
• Supplier is “any natural or legal person who, in contracts
covered by this Directive, is acting in his commercial or
professional capacity” (Art.1 para. 3).
• Definition of "operator of a means of communication“:
• “any public or private natural or legal person whose trade,
business or profession involves making one or more means
of distance communication available to suppliers” (Art.1 para.
5).
7. Scope of Directive 97/7/EC on distance
selling
•
•
•
•
Definition of “distance contract”:
The “distance contract” is any contract:
concerning goods or services,
under an organised distance sales or service-provision
scheme run by the supplier,
• that, for the purpose of the contract, makes exclusive use of
one or more means of distance communication up to and
including the moment at which the contract is concluded (Art.
1 para.1).
7. Scope of Directive 97/7/EC on distance
selling
• Definition of "means of distance communication“:
• “Any means which, without the simultaneous physical
presence of the supplier and the consumer, may be used for
the conclusion of a contract between those parties” (Art.1
para. 4).
• Means of distance communication are :
• Unaddressed/Addressed printed matter;
• Press advertising with order form;
• Catalogue;
• Electronic mail;
• Facsimile machine (fax);
• Television (teleshopping);
• A.o. (Annex I of the Directive).
7. Scope of Directive 97/7/EC on distance
selling
• Exemptions from the scope of the Directive are
contracts:
• relating to financial services (for example, insurance and
reinsurance operations, banking services, operations relating
to dealings in futures or options);
• concluded by means of automatic vending machines or
automated commercial premises;
• concluded with telecommunications operators through the
use of public payphones;
• concluded for the construction and sale of immovable
property or relating to other immovable property rights,
except for rental;
• concluded at an auction (Art. 3 para. 1).
7. Scope of Directive 97/7/EC on distance
selling
• Partial exemptions :
• contracts for the supply of foodstuffs, beverages or other
goods intended for everyday consumption supplied to the
home of the consumer, to his residence or to his workplace
by regular roundsmen;
• contracts for the provision of accommodation, transport,
catering or leisure services, where the supplier undertakes,
when the contract is concluded, to provide these services on
a specific date or within a specific period;
• “Contracts for the provision of transport services” includes
contracts for the provision of car hire services (ECJ case
Easycar ,C-336/03);
• in the case of outdoor leisure events, the supplier can
reserve the right not to refund the money within 30 days to
consumer in specific circumstances (Art. 3 para. 2).
8. Important consumer’s rights under the
Directive 97/7/EC on distance selling
• Prior information in good time before conclusion of the
distance contract (suplier’s identity, contact details,
characheristics of the good or service, costs and the
performance of the contract, withdrawal rights where
applicable) (Art. 4);
• Written confirmation of the information in good time during
the performance of the contract (plus information on
procedures of usage of withdrawal rights, where to address
complaints, after-sales services and guarantees which exist,
the conclusion for cancelling the contract, where it is of
unspecified duration or a duration exceeding one year) and
consequences if this requirement is not fullfilled (prolongation
a withdrawal period) (Art. 5);
8. Important consumer’s rights under the
Directive 97/7/EC on distance selling
• Right of withdrawal (7 days from delivery of goods of from
conclusion of service contract) and supplier’s obligation to
reimburse the sums paid by the consumer free of charge (not
later than within 30 days) (Art.6);
• Suppliers are not allowed under a distance contract to charge
the costs of delivering the goods to the consumer where the
latter exercises his right of withdrawal (ECJ case Heinrich
Heine, C-511/08);
• Suppliers may not claim compensation for the value of the
use of the consumer goods acquired under a distance
contract in the case of withdrawal by a consumer within the
withdrawal period (ECJ case Messner, C-489/07).
8. Important consumer’s rights under the
Directive 97/7/EC on distance selling
• National rules which prohibit a supplier, in cross-border
distance selling, from requiring an advance or any payment
from a consumer before expiry of the withdrawal period can
be adopted, but a prohibition, under those rules, on
requesting, before expiry of that period, the number of the
consumer’s payment card can not be adopted (ECJ case
Santurel Inter BVBA, C-205/07).
8. Important consumer’s rights under the
Directive 97/7/EC on distance selling
• Other important issues:
• Supplier’s obligation to execute orders within 30 days (Art.7
para. 1);
• Supplier may provide the consumer with goods or services of
equivalent quality and price provided that this possibility was
provided for prior to the conclusion of the contract or in the
contract (Art.7 para. 3);
• Restrictions on the use of certain means of distance
communication without prior consent of consumer (automatic
calling machine, automatic fax) (Art. 10).
9.Proposal for a Directive of the European
Parliament and of the Council on
consumer rights
.
• Maximum harmonisation directive (allows MS to adopt
stricter rules only in concrete situations);
• Unifies Doorstep and Distance selling directives (definitions,
information requirements);
• Implements common time period for usage of withdrawal
rights (for both contracts 14 days);
• Establishes obligations for traders and consumers in case of
withdrawal;
• Determines rules for performace of the contract and passing
the risk.
Thank You for Your attention!