Question F1: Should the length of the cooling-off periods be harmonized across the consumer acquis?
Option 1: There would be one cooling-off period for all cases when the consumer directives grant consumers a right to withdraw from the contract, e.g. 14 calendar days.
Option 2: Two categories of directives would be identified and to each of them a specific cooling-off period would be attached (e.g. 10 calendar days for door-to door and distance contracts as opposed to 14 calendar days for timeshare).
Option 3: Status quo: cooling-off periods would not be harmonised in the consumer acquis; they would be regulated in the sectoral legislation.

Response: Option 1
EMOTA fully supports the harmonisation of the right of withdrawal since the differences across Member States represent a disincentive to cross-border distance selling business. However, EMOTA does not agree with the suggested 14 days period. Actually, we wonder whether there is any evidence that a 7 day’s period as presently required by the Distance Selling Directive poses a real problem to consumers. Our members do even think that 7 calendar days is enough time for a consumer to examine an item and to see whether it is the one (s)he saw in the retailers’ catalogue, on its website or via another medium and whether it is fit for purpose. It can be supposed that parcels are opened as soon as they are in hands of the person who ordered them, and not put aside for inspection after several days. Too long of a period would also increase the risk of abuse by the consumer (see answer to question F2 below) and extends the period in which the consumer needs to take care that the products stay as new.
If there is a problem with the product, i.e. if it is defective, the consumer has adequate protection and rights under other legislation.
If a company wishes to offer a longer period than 7 days, it should be free to do so but this must remain a marketing option.

Question F2: How should the right of withdrawal be exercised?
Option 1: Status quo: Member States would be free to determine the form of the notice of withdrawal.
Option 2: One uniform procedure for the notice of withdrawal across the consumer acquis would be established.
Option 3: All formal requirements for the notification of withdrawal would be excluded. A consumer would then be able to withdraw from the contract by any means (including by returning the goods).

Response: Option 2
In the interest of legal certainty, the form of withdrawal should not be left up to Member States’ decision. Instead, it should be established a uniform rule asking for effective return of the items ordered within the withdrawal period.
EMOTA is proposing that in the case of goods, the right of withdrawal should be exercised by sending the goods back to the supplier before the expiry of the withdrawal period. Thus, situations in which the consumer has expressed his/her will to exercise the right of withdrawal but failed to send back the goods could be avoided.
Without any doubt, our members recognize the right of withdrawal as an essential right for consumers in distance selling. However, attention should be drawn to the fact that returns handling is a considerable and costly part of the business. Any look into a company’s return department would be self-explanatory to any outsider. Therefore, law must not unnecessarily increase the need for economic and human resources which returns management implies. Although it may be considered as “unbeseeming” to say it, but it should be mentioned anyhow: there are numerous cases of abuse of the right of withdrawal causing considerable unnecessary costs to distance selling companies. The list of examples is long, but we should limit ourselves to the classical example of the ball gown which is returned after the special (unique) event for which it was needed. We dare say no high-street retailer would accept taking back an article showing the slightest sign of use, so why should distance sellers be expected to do so.
Actually, it should also be said that those abuse cases are, at the end of the day, to the detriment of the whole consumer community as the resultant costs restrict   companies from offering goods at more attractive prices.

Question F3: Which costs should be imposed on consumers in the event of withdrawal?
Option 1: The current regulatory options would be removed - consumers would then not face any costs whatsoever when exercising their right of cancellation.
Option 2: The existing options would be generalised: consumers would then face the same costs when exercising the right to withdrawal irrespective of the type of contract.
Option 3: Status quo: The current regulatory options would be maintained.

Response: Option 3
EMOTA would favour option 3, but the costs need to be looked at. Return costs may differ depending on the product; they may vary between low postage fees and, for larger items, the cost of a van collection organised by the supplier.
Having said that, it should be clear that we do not consider options 1 and 2 as a solution. Option 2 ignores that the costs for withdrawal are not comparable across the directives; they range from defraying expenses for legal formalities and costs for returning goods.

Question G1: Should the horizontal instrument provide for general contractual remedies available to consumers?
Option 1: Status quo: the existing law provides for remedies limited to the particular types of contracts (i.e. sales). The general contractual remedies would be regulated by national law.
Option 2: A set of general contractual remedies available to consumers in the case of a breach of any consumer contract would be provided. These remedies would include: the right of a consumer to terminate the contract, to ask for a reduction of the price and to withhold performance.

Response: Option 1
We disagree with the Commission’s statement that “the absence of general remedies at EU level creates a deficit in consumer protection”. This is the more so as the European Commission set up some years ago out-of-court complaints systems (EEJ-Net, Fin-Net) to which consumers can appeal. These systems were intended to facilitate solutions to cross-border consumer disputes.
In addition, it must be said that most distance sellers are members of their national distance selling Traders' Association who will offer to help resolve complaints as well.

Question G2: Should the horizontal instrument grant consumers a general right to damages for breach of contract?
Option 1: Status quo: the issue of contractual damages would be governed by national laws, except when provided for in the Community acquis (e.g. package travel).
Option 2: A general right to damages for consumers would be foreseen – they would be able to claim damages for all breaches, irrespective of the type of breach and the nature of the contract. It would remain up to the Member States to decide what types of damages could be compensated.
Option 3: A general right to damages for consumers would be foreseen and it would be provided that these damages should at least cover purely economic (material) damages that the consumer has suffered as a result of the breach.
Member States would then be free to regulate non-economic loss (e.g. moral damages).
Option 4: A general right to damages for consumers would be introduced and it would be provided that these damages should cover both the purely economic (material) damage and moral losses.

Response: Option 1
EMOTA strictly opposes the introduction of a general right to damages for consumers, as suggested in option 2. One can hardly imagine a European country where there is no right to damages justifying such a provision.

Question H1: Should the rules on consumer sales cover additional types of contracts under which goods are supplied or digital content services are provided to consumers?
Option 1: Status quo: i.e. the scope of application would be limited to sales of consumer goods, with the only exception of goods which are still to be produced.
Option 2: The scope would be extended to additional types of contracts under which goods are supplied to consumers (e.g. car rental).
Option 3: The scope would be extended to additional types of contracts under which digital content services are provided to consumers (e.g. on-line music)
Option 4: Combination of Option 2 and 3

Response: Option 1
EMOTA is in favour of Member States’ competence to regulate this domain. There is no evidence that a lack of national legislation regulating this matter has been observed.

Question H2: Should the rules on consumer sales apply to second-hand goods sold at public auctions?
Option 1: Yes.
Option 2: No, they would be excluded from the scope of Community rules.

Response: Option 2
The point in this context is not to focus on the nature of goods, but on the type of auctions and on the sellers. There ought to be a provision asking people to declare in what capacity they are selling. In the interest of fair competition, companies using auction platforms to sell their products should not be exempted from legal rules to be respected by merchants selling via other channels (e.g. the Distance Selling Directive). The same applies to fixed price sale transactions.

Response: Option 2
A clear definition of delivery in line with option 2 makes sense.

Question I2: How should the passing of the risk in consumer sales be regulated?
Option 1: The passing of the risk would be regulated at Community level and be linked to the moment of delivery.
Option 2: Status quo: the passing of risk would be regulated by the Member States, with the consequence of divergent solutions.

Response: Option 1
The risk should, uniformly, be passed to the consumer when he/she receives the good(s).


Question J1: Should the horizontal instrument extend the time limits applying to lack of conformity for the period during which remedies were performed?
Option 1: Status quo: no changes would be made.
Option 2: Yes. The horizontal instrument would provide that the duration of the legal guarantee is extended for a period during which the consumer was not able to use the goods due to remedies being performed.

Response: Option 1
Any extension of the 2 years’ period would unfairly extent the risk for defects falling in the sphere of the producer. Indeed, option 2 risks to lead to a never-ending debate.

Question J2: Should the guarantee be automatically extended in case of repair of the goods to cover recurring defects?
Option 1: Status quo: The guarantee would not be extended.
Option 2: The duration of the legal guarantee would be extended for a period to be specified after the repair to cover the future re-emergence of the same defect.

Response: Option 1
It should be left to the company to find the most preferable way to compensate the consumer in such case.

Question J3: Should specific rules exist for second hand-goods?
Option 1: A horizontal instrument would not include any derogation for second hand goods: the seller and consumer would not be able to agree on a shorter period of liability for defects in second hand goods.
Option 2: A horizontal instrument would contain specific rules for second hand goods: the seller and the consumer may agree on a shorter period of liability for defects in second hand goods (but not less than one year).

Response: Option 2
As the risk that a product becomes defective is higher with regard to second-hand products, it is well-justified that a shorter period of liability can be agreed on.

Question J4: Who should bear the burden to prove that the defects existed already at the time of delivery?
Option 1: Status quo: During the first six months it would be up to the professional to prove that the defect did not exist at the time of delivery.
Option 2: It would be up to the professional to prove that the defect did not exist at the time of delivery for the entire duration of the legal guarantee, as long as this would be compatible with the nature of the goods and the defects.

Response: Option 1
The current provision in the Guarantee directive which states that in the first six months the burden of proof is on the seller, is satisfactory. After six months, the presumption that a good had no defect at its delivery is rather realistic, so it is justified to pass the burden of proof on to the buyer after this period. Further, it should be said that obviously, the seller has no knowledge of the way in which the sold item is used. The longer an item is misused, the higher the likelihood that it becomes defect.
We would further like to bring to the attention of the Commission the fact that in certain countries, like Spain, the guarantee law varies even from region to region. The Commission should seek to erase such fragmentation at national level.

Question K1: Should the consumer be free to choose any of the available remedies?
Option 1: Status quo: consumers would be obliged to request repair/replacement first, and ask for a price reduction or termination of contract only if the other remedies are unavailable.
Option 2: Consumers would be able to choose any of the available remedies from the start. However, termination of the contract would only be possible under specific conditions.
Option 3: Consumers would be obliged to request repair, replacement or reduction of price first, and would be able to ask for termination of contract only if these remedies are unavailable.

Response: Option 1
Whereas option 1 seems a just and reasonable solution for both parties, option 2 would lead to considerable uncertainty to the sellers of products.

Question K2: Should consumers have to notify the seller of the lack of conformity?
Option 1: A duty to notify the seller of any defect would be introduced.
Option 2: A duty to notify in certain circumstances would be introduced (e.g. when the seller acted contrary to the requirement of good faith or was grossly negligent).
Option 3: The duty to notify within a certain period would be eliminated.

Response: Option 1
EMOTA would clearly favour option 1 as a uniform duty to notify the seller of any defect would provide legal certainty for merchants.

Question L: Should the horizontal instrument introduce direct liability of producers for non-conformity?
Option 1: Status quo: no rules on direct liability of producers would be introduced at EU level.
Option 2: A direct liability for producers would be introduced under the conditions described above.

The Green Paper does not give any indication about how such direct liability of producers should be shaped. This applies in particular to the relationship between the sellers’ and the producers’ liability; but also to the impact which contractual agreements such as warranties or product descriptions provided by the seller could have on the producer in case a claim is addressed directly to the producer. There are many questions to be considered first before any option can be favoured.

Question M1: Should a horizontal instrument provide for a default content of a commercial guarantee?
Option 1: Status quo: the horizontal instrument would contain no default rules.
Option 2: Default rules for commercial guarantees would be introduced.

Response: Option 1
The voluntary nature of commercial guarantees must not be challenged.

Question M2: Should a horizontal instrument regulate the transferability of the commercial guarantee?
Option 1: Status quo: the possibility to transfer a commercial guarantee would not be regulated by Community rules.
Option 2: A mandatory rule that the guarantee is automatically transferred to the subsequent buyers would be introduced.
Option 3: The horizontal instrument would provide for the transferability as a default rule, i.e. a guarantor would be able to exclude or limit the possibility to transfer a commercial guarantee.

Such questions of civil law should not be part of this consumer acquis review.

Question M3: Should the horizontal instrument regulate commercial guarantees limited to a specific part?
Option 1: Status quo: the possibility to provide commercial guarantee limited to specific parts would not be regulated by the horizontal instrument.
Option 2: The horizontal instrument would only provide for the information obligation.
Option 3: The horizontal instrument would include an information obligation and would provide that, by default, a guarantee covers the entire contract goods.

The question needs to be clarified before EMOTA can give a clear answer.