EMOTA, the European E-commerce and Mail Order Trade Association, studied with great interest the proposed Directive on Consumer Rights, COM(2008) 614 final, submitted on 8 October 2008.

As the organisation which represents 23 national distance selling associations across Europe, EMOTA supports any initiative that removes uncertainty by simplifying and harmonising legislation in the European Single Market, that promotes consumer confidence by providing a proportionately high level of protection and prevents excessive burdens on distance sellers.

In our comments below we will focus on two key areas of the new proposal for a directive:

1. the full harmonisation approach and
2. the right of withdrawal.

1. Full Harmonisation

EMOTA strongly supports the principle of full harmonisation as laid down in Article 4.

From the beginning of the preparatory work for the new proposal for a Consumer Rights Directive, EMOTA has welcomed the orientation towards full harmonisation. Unified rules make it possible for distance selling companies to offer their products or services under similar conditions in all Member States, and for consumers to buy them under circumstances with which they are familiar. Full harmonisation of consumer rules would remove one of the important barriers to the development of cross-border trade.

Indeed, the minimum harmonisation approach followed so far with its options to Member States has led to a re-fragmentation of the national markets, making it difficult and costly for companies to operate cross-border. For example:

• The differences in the right of withdrawal period across Europe, as highlighted in Annex IV of the Communication on the implementation of the Distance Selling Directive [1];
• The obligation for the seller to bear the costs of return in Germany and Finland;
• Differences in information requirements and the way this information has to be given to consumers;
• Differences regarding the provisions on payments, such as the Belgian prohibition to ask for any payment before the expiration of the seven day withdrawal period foreseen in the national distance selling legislation;
• Disproportionate and excessive fines imposed by the data protection agency in Spain.

Member States should not in future be allowed to introduce further constraints than those which are foreseen in the European Directive, such as introducing free return for the consumer or prohibiting charged phone calls for after-sales-services.

Full harmonisation must however leave sufficient room for companies to develop their own commercial approach to develop offers, for the benefit of consumers by providing real choice.

2. The Right Of Withdrawal

a. Length and starting point of the withdrawal period (Article 12)

In this context, we should draw attention to a couple of important points:

• EMOTA requests that a clear choice is made for calendar days. Recital 24 states that all periods contained in the Directive should be understood to be expressed in calendar days.  Considering that recitals have no independent legal value, we would prefer to see this repeated in the corpus of the Directive.
  
• EMOTA does not agree with the suggested period of 14 days for withdrawal.

This is the more so as the text links it to another 14 days period within which the consumer can send back the goods. In practice, this could mean that the seller’s goods are out of his stock for a full month.

This can cause serious problems, particularly to small and medium-sized enterprises.

In terms of consumer protection –and this is what the consumer rights directive is supposed to aim for- seven calendar days seems a reasonable period in which to exercise the right of withdrawal and to send back the goods. If a company wishes to offer a longer period than those 7 days, it should be free to do so, but this must remain a marketing option.

In addition to logistical problems which companies face when goods are too long out of stock, we should also mention again distance sellers’ exposure to abuse, which well-intentioned consumer rules may encourage. EMOTA has already cited on several occasions practical examples of such abuse and we are happy to see that the European Commission has recognised this problem, as recital 31 states that “some consumers exercise their right of withdrawal after having used the goods to an extent more than necessary to ascertain the nature and functioning of the good”. Indeed, our members report that more and more often, irresponsible consumers order goods without a serious intention to buy them, but for using them for a particular (unique) purpose. 

b. Obligation of the trader in case of withdrawal (Article 16)

Article 16 states that the trader should reimburse any payment received from the consumer within thirty days from the day on which he receives the communication of withdrawal.

This provision does not take into account situations where consumers explicitly ask for (expensive) express delivery of the goods and/or product installation at home. In such cases, it is inappropriate to require companies to pay back the additional price difference between express and “standard” delivery, and for the installation. Traders must be allowed not to have to reimburse the costs for specifically requested product installation and supplements for special delivery modes.

c. Obligation of the consumer in case of withdrawal (Articles 17)

d. Exceptions from the right of withdrawal (Article 19)

The Commission opted for a list of contracts that do not give rise to the right of withdrawal.

EMOTA thinks that this list omits other important aspects which justify exclusion of the right of withdrawal:

- goods which cannot be returned for health, safety and/or hygiene reasons;

A non-exhaustive list of examples of such goods would include underwear, lipsticks, piercings, earrings, medical products or unwrapped mattresses which are not suited for return, as they could imply a health risk after having been tested.

- unsealed goods containing software elements;

Products which can be connected to the internet can clearly be permanently contaminated as a result.

In case of return of e.g. a laptop, it is difficult and costly to find out whether it has been in web-use and whether it has been contaminated by malicious programs etc. Traders would have to undertake expensive “cleaning”, or the cleaning may be simply impossible and as a result the trader will not be able to sell the product again to another consumer as new. Therefore, the unsealing as criterion for the return possibility of Art.19 (e) should be widened to cover all goods containing software elements.

- unsealed books;

To avoid opening doors to abuse, traders must be allowed not to accept returned books when they have been unsealed. People may, for instance, be tempted to copy those pages which are of interest to them and then return the books.

Therefore, also books should be included in the list of Art. 19 (e) of unsealed goods which cannot be returned.

- goods which are combined with particular services;

There are mixed products available nowadays which contain both elements of services and goods, such as broadband subscriptions with ADSL-modem delivery. In such cases, a consumer order generates an immediate internal service process at the operator’s process chain, i.e.: the service is started before the delivery of the goods which are part of the order.

In the same spirit in which Art. 19 (a) excludes services where performance has begun, with the consumer's prior express consent, before the end of the withdrawal period, this kind of mixed products should be excluded from the right of withdrawal as well.

Finally, EMOTA would like to stress that Article 19 should re-insert the provision which was a key part of the Distance Selling Directive (Article 6, paragraph 3, 3^rd indent), that withdrawal is not possible for “the supply of goods made to the consumer's specifications or clearly personalized or which, by reason of their nature, cannot be returned or are liable to deteriorate or expire rapidly.”

We are concerned that this important general criterion, the nature of the product, has been removed to recital 33 in the new proposal, where it has no independent legal value.

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