ON CROSSBORDER MAIL ORDER AND DISTANCE SELLING
(text adopted by the AGM on 27 March 2002, Paris)
The commercial activity called "distance selling" encompasses various marketing methods which, from the initial commercial proposal made by the company to the consumer until the execution of the order placed by the consumer, are carried out through a wide range of (interactive) means of communication and distribution of information at a distance, from written documents to the use of the most advanced communication technologies.
This Convention therefore includes all forms of on-line communications and commercial proposals through e-mail, internet website, interactive television, mobile communication or any other interactive means of communication.
All the above mentioned marketing techniques present the following features :
there is in principle no physical presence of both parties concerned together at the same time ;
the goods and services are presented by the company at a distance to the consumer through a wide range of communication media such as catalogues, mailings, advertisements, telephone, television, videotext, audiotext, CD ROM, Internet or any other (interactive) means of communication.
offering the consumer a multi-channel possibility to take notice of the information and the commercial proposals and to order by using one or more of the proposed communication media, off-line as well as on-line.
Benefits for the consumer
Mail order and distance selling provide the following benefits to the consumer :
he/she may consider the proposal made to him/her at home, freely and without any pressure ;
he/she may compare the various proposals made to him/her ;
the means of communication at a distance available enable him/her to be informed about the availability and delivery periods of the goods and/or services proposed ;
he/she may choose how to place an order, how to pay and where and when he/she wants the goods to be delivered or the service performed under the conditions specified by the company ;
he/she has a basic right to return the goods or refrain from the service ordered within the period and under the conditions specified by the company.
Consumers and database management
In order to meet actual and prospective customer's wishes, a permanent analysis as well as an accurate knowledge of their needs are vital.
This need for information to be able to respond to the consumer's needs and wishes and the lawful protection of the latter's privacy must be carefully balanced. Consumers have the right to know about the existence of files concerning them and to be able to seek information about the use of data regarding them and their right of access, of rectification and indeed of objection.
Satisfied or reimbursed
One golden rule is fundamental i the relation between consumer and companies: the one of "satisfied or reimbursed", meaning that the consumer, if he/she is not satisfied or whatever his/her motives are, is completely free to return the goods or refrain from the service, to exchange or to be reimbursed (if he/she has paid in advance) taking into account the conditions as indicated in the proposal of the company.
Need for a European Code of Conduct
Distance selling companies are convinced that they play an important part in creating an integrated European Market.
Within the limitations of the commercial proposal the consumer will be able to more easily purchase goods and services in countries other than his/her own.
This will be enhanced and furthered by the possibilities offered by the electronic means of communication in terms of more direct contact and dialogue.
The consumer has to be clearly informed about his/her rights and obligations, about the modalities of delivery and payment. It is essential that professional rules of conduct in addition to European and national regulations be laid down governing the (cross border) dealings between consumer and company.
Therefore, in addition to respecting international and European legislation, regulations and conventions as well as national legislation and deontological regulations the national Associations and their member companies pledge to abide by the following rules:
Article 1 : Basic principles
All commercial proposals and commercial communications should be:
legal, decent, honest and truthful ;
prepared with a due sense of social responsibility and conform to the principles of fair competition as generally accepted in business and to European and national legal and deontological provisions.
Any good or service together with a request for payment delivered without prior order or contract are considered to be unsolicited.
Article 2 : Contents of the commercial proposal
Commercial proposals must clearly indicate the company's and the consumer's mutual commitments. Prior to the conclusion of the contract the consumer must be provided with at least the following information :
the identity, the permanent address and other relevant information in such a way that the consumer is able to clearly identify the company;
the period for which the proposal remains valid;
the main characteristics of the goods and services proposed;
the existence and conditions of a right of withdrawal;
the cost of using the means of communication where it is calculated other than at the basic rate;
the financial terms : price including all taxes, possible participation in the costs of transportation, possible ancillary costs and credit conditions;
the arrangements for delivery, payment, exchange, return and reimbursement;
the general terms of the proposal and the restrictions, if any;
where appropriate, the minimum duration of the contract in the case of contracts for the supply of goods and /or services to be performed permanently or recurrently.
Article 3: Confirmation
In good time during the performance of the contract and at the latest at the moment of delivery the consumer must receive confirmation in writing or on another durable medium available and accessible to him/her of the information referred to in Article 2, unless such information has been already given to him/her prior to the conclusion of the contract.
In any event the following information should be provided :
the conditions for exercising the right of withdrawal;
how and to what address the consumer may address any complaints;
information on guarantees and after-sales service;
the conditions for cancelling the contract, where it is of unspecified duration or of a duration exceeding one year.
Article 4 : Execution of the order
Should the company be unable to dispatch the products ordered within 30 days or such delivery time convened with the consumer or as stated in the proposal, the consumer shall be informed, specifying the time the products will be made available and enabling him/her to cancel his/her order and to be reimbursed if he/she has already paid.
Article 5 : Substitute goods
Prior to the conclusion of the contract the consumer shall be clearly informed about the possibility to be provided with goods and services of at least equivalent quality and price, should the goods and services originally ordered be unavailable.
In this case, when the consumer exercises his/her right of withdrawal, the return costs will be borne by the company.
Article 6 : Information about (cross border) proposals
The company shall clearly and comprehensively inform the consumer about the validity and the applicability of the commercial proposal, specifically about certain restrictions such as geographical and to certain consumer groups.
Article 7 : Right of withdrawal
The consumer shall be entitled to return the goods or to refrain from the service ordered without any penalty and/or without giving any reason, within a period of at least seven working days, with the possibility to exchange or be reimbursed, if he/she has already paid.
This period shall start in the case of goods from the day the goods were received by the consumer and in the case of services from the day of conclusion of the contract.
If the obligations provided for in Article 3 have not been fulfilled the period to exercise the right of withdrawal shall be three months, the seven day period starting from the moment the obligations of Article 3 have been fulfilled.
Any possible restriction to this right of withdrawal allowed by European and national legal provisions and taking into account the specific characteristics of certain goods and /or services, shall be clearly pointed out in the commercial proposal.
The only charge that may be made to the consumer because of the exercise of his/her right of withdrawal is the direct cost of returning the goods.
Article 8 : Satisfied or reimbursed
In the case or reimbursement within the provisions of Articles 4, 5 and 7 companies will take care to reimburse clients within a maximum period of 30 days after receipt of the goods or, in the case of services, the notification that the consumer wants to refrain from the service ordered.
Article 9 : Data and Privacy protection
a) collecting, processing and use of data
Personal data to be subject to any form of automated processing shall
a) be obtained fairly and within the limitations set by European and national legal and deontological provisions ;
b) be stored for specified legitimate purposes within the scope of the company's business activities and not be used in any way incompatible with those purposes ;
c) be processed appropriate, relevant and with respect of the required confidentiality and specified wishes of consumers concerning the use of their personal data ;
d) be kept up to date and no longer than required within the company's commercial activities and according to administrative obligations.
b) right of information, access and rectification
Companies shall inform the consumer about the opportunity to be informed, to have access to and to rectify incorrect personal data concerning him/her.
c) right to refuse
The consumer will have the opportunity to object to the communication of data concerning him/her to third parties.
Companies shall respect the consumer's wish not to receive commercial proposals by mail, telephone, e-mail and the like, irrespective whether such a wish was directly expressed to the company or through a national Preference Service or equivalent body in the country of the consumer.
The use of automated calling systems without human intervention and fax for commercial proposals and messages is subject to the prior consent of the consumer.
Moreover, in the case of telephone communications the identity of the company and the commercial purpose of the call shall be made explicitly clear at the beginning of each conversation.
Article 10 : Cross-border transactions
In the case of cross-border transactions involving companies based in the countries governed by this Convention and selling to consumers within these countries, the company may select, in any part of its commercial proposal (brought to the prior attention of the consumer) the appropriate national law, either of the company or of the consumer,which shall apply to the transaction.
In the event that this indication is not shown, then the law of the country, where the consumer has his habitual residence, shall apply.
Article 11 : Processing of disputes
In the case of disputes the consumer must first contact the company by mail, email or any other means of communication outlining his/her complaint. Companies shall deal with such complaints within a period of 30 days after receipt.
If a solution cannot be found within that period, an acknowledgment must be forwarded to the consumer within an indication of the period it will take to handle the complaint.
If the consumer is not satisfied about the answer of the company he/she may put forward his/her complaint to the National Association involved or to a national body competent in the matter, if any.
In the case of cross border complaints the consumer may ask the National Distance Selling Association in his/her own country to conciliate, if he/she is not able to solve the dispute directly with the company involved.
In that case, the aforementioned National Association shall forward the complaint to the Association of the country of the company concerned, who shall process the complaint in accordance with its own proceedings or through the national body competent in the matter.
Article 12: Implementation
The provisions of the present Convention shall be implemented by the National Member Associations within their existing national deontological framework and by the companies according to the conditions specified by the National Associations.
Article 13 : Logo – Trust mark
Member companies of the National Associations shall be entitled to use the EMOTA logo (with the text: Member of EMOTA) alone or in combination with the logo of the National Association on all their business documents and their website, thereby showing their commitment to abide by the rules as laid down in this Convention.
Article 14 : Coming into force
The present Convention which replaces the original version signed by representatives of the National Associations in June 1992, was adopted at teh AGM 2002 in Paris and came into force on 1 January 2002.
This Convention was brought up to date in May 2005 and signed by the parties mentioned hereunder, represented by their presidents and secretaries general:
Björn H. Andreassen
Luis Llairo Canal
Pier Attilio Rubini
H. Mark Meier