Online Salg Af Varer

DRAFT I

February 2016

CECRA’s Position Paper

concerning the proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods

I. Basic remarks

The objective of this proposal for a directive which is to eliminate the key contract law-related barriers hindering cross-border trade and thus to reduce the uncertainty faced by businesses and consumers due to the complexity of the legal framework is in principle to be welcomed.

In order to achieve these objectives, however, the interests of both businesses and consumers have to be equally taken into account and a balanced and normative relationship is to be created. Each privileging of any contracting party will result in a lack of broad acceptance of the new contract law rules for sales of goods sold at a distance and consequently not lead to the improvements expected by the European Commission for the Digital Single Market.

With this in mind, we see in numerous parts of the proposal need for changes.

At the same time, we are critical of the intention of the European Commission to prevent discrepancies between the rules on distance sales and the rules on face-to-face sales, meaning stationary retail, and thus to ensure that consumers and traders will indeed be able to rely on a coherent legal framework which is simple to apply everywhere in the EU. We are firmly convinced that such a harmonised legal framework cannot be assessed based on one single directive on distance sales but only based on its entirety. The present proposal for a directive may by no means create conditions the effects of which on the rules on face-to-face sales cannot yet be foreseen.

In addition the Directive should also include the right to redress for the retailer in case a consumer is compensated for a faulty product by the retailer. In such cases the retailer must have the binding legal right to redress his costs on his supplier. The retailer is not the producer and as such he does not have influence on the quality of the product.

II. In particular

Article 8 (2)

From our point of view there is no necessity to privilege the buyer of a good which needs to be installed by the buyer (consumer) in terms of the relevant time for establishing conformity in the form of a 30-day fiction. Due to the fact that it will regularly not be possible to determine in practice when the installation has actually been conducted by the consumer one will have to predominantly take the 30-day fiction into account. As a result, there is a de facto extension of the prescription period of claims of the consumer on the grounds of liability for material defects by further 30 days. An objectively justified need for protection of the consumer which justifies such an extension is unapparent.

The provisions of the directives that were recently introduced by the European Commission should instead be more strongly considered in order to simplify the application of law. The withdrawal period starts in the sample revocation policy for distance and off-premises contracts (Directive on consumer rights 2011/83/EU) for goods ordered at a distance from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires the material possession of the goods ordered. From that date, the consumer has 14 days - a sufficiently long period - to check the nature, characteristics and functioning of the ordered goods and to withdraw from the contract where necessary. Instead of introducing another deadline and thus unnecessarily complicating the application of law in practice, the proposal for a directive should also standardise a uniform deadline, in line with the sample revocation policy (see above). The currently proposed wording is to be rejected.

Article 8 (3)

We strongly reject the extension of the reversal of the burden of proof from six months to two years.

It is indeed incomprehensible why this obligation shall be imposed on Member States, whilst 25 Member States – the vast majority – committed themselves in accordance with Directive 1999/44/EC to a period of six months and only three Member States extended this deadline recently? The legal framework should be harmonised based on the legal framework which is successfully put into practice by the majority of the Member States. Disadvantages to consumers are not to be expected as the European Commission itself notes that there is very limited change in traders’ behaviour before or after the 6 months on this point. However, it does make a difference whether businesses act in a customer-oriented way – on a voluntary basis and in consideration of all relevant circumstances – or whether they are legally obliged to a certain handling. In any case, businesses would act far more restrictively in case of a legal obligation.

Furthermore, aligning the deadline of the reversal of the burden of proof with the two-year legal guarantee period causes a significant displacement of risk at the expense of the seller. This is particularly evident when selling used goods, such as used cars where the legal guarantee period is in practice predominantly reduced from 24 to 12 months. Due to the lack of differentiation between used and new goods, the consumer benefits from a six-month reversal of the burden of proof when buying a used car, i.e. half of the period of the reduced guarantee period. This provision privileges the buyer (consumer) of used goods already today disproportionately. An extension of the reversal of the burden of proof to 24 months, i.e. the entire period of the reduced guarantee period, would inevitably cause motor trade and repair companies – and in particular SME – to compensate the increased risk of furnishing proof by a significant increase in retail prices. This also applies for the sale of new goods where businesses would have to include the considerably increased risk of furnishing proof in the pricing. Consumers would thus have to adjust to increased prices when buying used and new goods online. It is highly questionable whether this result appears to be desirable – considering the customer-oriented practice determined by the European Commission (see above-mentioned remarks). Another inevitable consequence of the arising pricing pressure would be that small and medium-sized enterprises had to gradually withdraw from cross-border online trade.

At the same time, the extension of the reversal of the burden of proof would also lead to changed customer behaviour concerning defects. It is to be expected that customers will complain to the seller about each defect of a good and request subsequent improvement at no charge, even if this defect might be caused by improper use by the customer. It is the seller who carries the risk to proof the conformity of the goods at the relevant time after all. Businesses will inevitably have to take the increasing number of customer complaints into account when calculating prices.

Ultimately, the extension of the period of the reversal of the burden of proof diametrically opposes the intention of the European Commission to achieve a comprehensive reduction of retail prices and to generate advantages in terms of cost savings for small and medium-sized enterprises.

Article 9 (4)

Entitling the consumer to withhold the payment of the (entire) purchase price until the seller has brought the goods into conformity with the contract is absolutely disproportionate and therefore to be rejected.

Examples include the purchase of a high-pricedtop-of-the-range car which lacks a small plastic clip for the covering in the car boot. First of all, the seller has to reorder the clip. Thereupon, the customer complains about additional defects – from his point of view – of the vehicle and withholds the entire purchase price. Since the contracting parties do not reach an agreement, an arbitration process or a lawsuit have to be strived for. In this example, the seller had to carry the entire cost and liquidity risk throughout the entire conflict, despite the fact that he has predominantly delivered in accordance with the contract and that the customer disposes of legal remedies to eliminate such defects. Such a one-sided sharing of risks to the disadvantage of the seller is not acceptable.

Article 10 (3)

A harmonisation of the legal provisions should also include the consumer’s liability to pay for any use made of the replaced goods in the period prior to the replacement. If the consumer opts for a replacement delivery, he is not liable for the depreciation of the goods - regardless of whether he uses the goods beyond checking the nature, characteristics and functioning. In the motor trade and repair sector, such a use causes regularly a considerable depreciation of the vehicle. Therefore, the sample revocation policy introduced by the Directive on consumer rights provides in the above-mentioned case in the event of withdrawal consequently a consumer’s liability to pay for any use made of the replaced goods in the period prior to the replacement. The non-liability in case of a replacement delivery should therefore be provided with a practice-oriented limitation. This would prevent the customer from an extensive use of the goods and at the same time provide a legal standard of the customer’s duty to mitigate damages.

Article 13

The consumer shall have the right to terminate the contract even in case where the non-performance is minor. Turning away from the present provision under Directive 1999/44/EC is from our point of view not acceptable. Especially in the motor trades and repair sector it is due to the high level of technical complexity of the vehicles possible that smaller production-related series deviations occur time after time which cannot - or only when involving disproportionate efforts - be removed by the motor trades and repair company, i.e. the seller of the vehicle. Examples include slight deviations of a bonnet‘s gap dimensions. Constructing a consumer‘s right of withdrawal based on these deviations which are to be deemed acceptable to the consumer is certainly not appropriate and thus to be rejected.

Article 13 (1)

Exercising the right to terminate the contract by notice to the seller given by any means requires from our perspective modification. In order to avoid possible difficulties relating to evidence, a clear statement by the consumer should at least be required. Recourse can be made to the wording of the sample revocation policy of the Directive on consumer rights.

Article 13 (2)

The seller must have the possibility to withhold the repayment of the purchase price to the consumer as long as he has not received the goods or proof by the consumer about the return of the goods (see sample revocation policy of the Directive on consumer rights).

Article 14

A reduced guarantee period of 12 months has to remain possible for the sale of used goods. A limitation period of two years would result in a veritable cost explosion for used goods.

Source: ZDK

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