DIRECTIVE 2011/83/EU on consumer rights
European Parliament and Council, DIRECTIVE 2011/83/EU on consumer rights, 2011/83/EC, 25.11.2011
The Directive amends Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council.
Definition of "sales contract" and "service contract" within the meaning of this Directive:
- Art 2(5): ""sales contract" means any contract under which the trader transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services".
- Art. 2(6): ""service contract" means any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof".
- Recital 19: "contracts for digital content which is not supplied on a tangible medium should be classified, for the purpose of this Directive, neither as sales contracts nor as service contract".
Recital 19: digital content means data which are produced and supplied in digital form, such as computer programs, applications, games, music, videos or texts, irrespective of whether thay are accessed through downloading or streaming, from a tangible medium or through any other means; digital content not provided on a tangible medium is, for the purpose of this Directive, neither a sales contract nor a service contract; trader should inform the consumer about the functionality (the ways in which the digital content can be used, e.g. for the tracking of consumer behavior; the absence or presence of any technical restriction, e.g. DRM or region coding) and the relevant interoperability (information regarding the standard hardware and software environment with which the digital content is compatible, e.g. the operating system, the necessary version and certain hardware features) of digital content.
Recital 20: contracts negotiated and concluded through the Internet are distance contracts.
Recital 20: an organised distance sales or service-provision scheme should include those schemes offered by a third party other than the trader but used by the trader, such as an online platform.
Recital 24: the use of online platforms for auction purposes which are at the disposal of consumers and traders should not be considered as a public auction within the meaning of this Directive.
Recitals 29 and 30, Art, 3(3): this Directive doesn't apply to social services and to healthcare.
Recital 34: the trader should give the consumer clear and comprehensible information before the consumer is bound by a contract.
Recital 35: the information to be provided by the trader to the consumer should be mandatory and should not be altered (it is legal to say in the contract that terms and conditions may change and that if you continue to use the product you accept these conditions?)
Art. 1: purpose: the proper functioning of the internal market.
Art. 2: goods are any tangible movable items; sales contracts imply the transfer of ownership of goods, and they include any contract having as its object both goods and services; service contracts are the contracts other than sales contracts where we have a supply of service in exchange of price (so, if you supply me with the Mini car + the service for heated seats in a unique contract, it is a sales contract because we also have a transfer of ownership; however, according to recital 19, the heated seats service has to been provided on a tangible medium, e.g. already installed on the car, because, failing that, the provision of the heated seats service is a digital content not provided on a tangible medium and, thus, the contract - or the part of the contract - concerning it is neither a service contract nor a sales contract).
Art. 3: scope: any contract (so, both service and sales contracts) concluded between a trader and a consumer.
Art. 4: high level of harmonisation.
Art. 5: information requirements for contracts other than distance or off-premises contracts: before the conclusion of the contract, the trader has to provide the consumer with some information, in a clear and comprehensible manner, if it is not apparent from the context: among this information, we have the main characteristics of the goods or services (does it include the information about if there is or not a transfer of ownership?); the total price of the goods or services; the existence and the conditions of after-sales services; the duration of the contract, or, if it is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract (so, when I provide a service for heated seats on the Mini, I have to say that if the consumer resells the car the service doesn't last any more); the functionality and the relevant interoperability of digital content (see Recital 19).
Art. 6: information requirements for distance contracts and off-premises contracts: the same information stated in art. 5 has to be given; moreover, we have further information to give, considering the particular nature of these two categories of contracts.
Art. 8: formal requirements for distance contracts: the list of requirements set in this article is without prejudice of the provisions concerning the conclusion of e-contracts and the placing of e-orders of artt. 9 and 11 of the e-commerce Directive.
Artt. 9-16: right of withdrawal.
Art. 17: artt. 18 (delivery) and 20 (passing of risk) apply to sales contracts; artt. 19 (fees for the use of means of payment), 21 (communication by telephone) and 22 (additional payments) apply to both sales and service contracts (--> does that mean that these provisions don't apply to contracts concerning digital content supplied through intangible mediums? see Recital 19). Art. 32: amendment to Directive 93/13/EC on unfair terms in consumer contracts.
Art. 33: amendment to Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees.
See HELBERGER N., Digital Consumers and The Law. Towards a Cohesive European Framework, The Netherlands, Kluwer Law International, 2013.
See LOOS M., Digital Content Contracts for Consumers: it deals also with the service/good qualification issue regarding digital content.