Directive (EU) 2019/2161 on better enforcement and modernisation of EU consumer protection rules

It amends Directive 2011/83/EU. The amendments increase protection for EU consumers in several areas such as purchases through online marketplaces, transparency of price personalisation and ranking of online offers and consumer rights when using ‘free’ online services.

Directive 2011/83/EU has applied since 12 December 2011 and had to become law in the EU countries by 13 December 2013. It applies to contracts concluded after 13 June 2014.Amending Directive (EU) 2019/2161 has to become law in the EU countries by 28 November 2021 and applies from 28 May 2022.

With some exceptions such as package travel and holidays or financial services, such as consumer credit and insurance, Directive 2011/83/EU, as amended by Directive (EU) 2019/2161, covers a broad range of contracts concluded between traders and consumers, namely sales contracts*, service contracts*, contracts for online digital content and contracts for the supply of water, gas, electricity and district heating). It applies to contracts concluded in shops and to contracts concluded off-premises (e.g. at the consumer’s home) or at distance (e.g. online).

Amending Directive (EU) 2019/2161 extends the scope of Directive 2011/83/EU to cover contracts under which the trader supplies or undertakes to supply digital service* or digital content* to the consumer, and the consumer provides or undertakes to provide personal data*. It also clarifies the situation of products offered to consumers in online marketplaces*, where both the provider of the online marketplace and the third-party supplier are involved in providing the pre-contractual information required by Directive 2011/83/EU.

Directive (EU) 2019/771 repeals and replaces Directive 1999/44/EC (Consumer Sales and Guarantees Directive — CSGD) as of 1 January 2022.EU countries have to apply the rules from 1 January 2022.

Information obligations

Before concluding a contract, traders must provide to consumers, in clear, understandable language, information, such as:
their identity and contact details;
the product’s main characteristics; and
the conditions that apply, including payment terms, delivery time, performance and duration of the contract and termination conditions.

In shops, only information which is not already obvious must be provided.

Information requirements, particularly on the right of withdrawal, are more detailed for contracts concluded at distance (such as via post, telephone or online) and for contracts concluded off premises (e.g. where a trader visits a consumer’s home).
Amending Directive (EU) 2019/2161 includes a new article dealing with specific information requirements for contracts concluded on online marketplaces. Online marketplaces are required to inform consumers whether the third-party supplier is a trader or non-trader (a consumer), warn the consumer about the non-applicability of EU consumer-protection rules to contracts concluded with non-traders and explain who is responsible for the performance of the contract: the third-party trader or the online marketplace itself.
Also, amending Directive (EU) 2019/2161 requires traders to inform consumers whether the price was personalised on the basis of automated decision-making.

Right of withdrawal

Consumers can withdraw from distance and off-premises contracts within 14 days of the delivery of the goods* or the conclusion of the service contract, subject to certain exceptions, without any explanation or cost. A standard withdrawal form provided by the seller suffices. If the consumers are not made aware of their rights, the withdrawal period is extended by 12 months.
Exemptions apply in several circumstances, for example, for rapidly perishable goods, sealed goods opened by the consumer which cannot be returned for health or hygiene reasons, and hotel reservations or car rentals which are tied to specific dates. Exceptions also apply, under certain circumstances, for contracts for the supply of digital content which is not supplied on a tangible medium if the performance has begun.
When consumers withdraw from a contract, they must refrain from using the digital content or digital service and from making it available to third parties.

No unjustified payment costs or additional charges

Traders must not charge consumers fees that are more than the cost borne by the trader for the type of payment involved.
When phoning a trader to enquire or complain about the contract concluded, the consumer must not pay more than the basic telephone rate.
Traders must have a consumer’s express consent when offering additional paid-for services. Pre-ticked boxes on an order form may not be used for such payments.

Penalties

Amending Directive (EU) 2019/2161 requires EU countries to introduce effective, proportionate and dissuasive penalties to punish traders who break national rules transposing the directive.
The amending Directive (EU) 2019/2161 introduces a list of criteria to be applied when imposing the penalties. It also requires EU countries to provide for the possibility to impose fines up to at least 4% of a trader’s turnover, or €2 million where information about the trader’s turnover is unavailable when, working together, they identify major cross-border infringements affecting consumers in several EU countries.

Rules on contracts for the sale of goods between sellers and consumers

Directive (EU) 2019/771 on certain aspects concerning contracts for the sale of goods aims to ensure proper functioning of the internal market, while providing consumers with a high level of protection. It does so by laying down certain common rules on sales contracts between sellers and consumers.

These cover:

conformity of goods with the contract;
remedies if there is no conformity;
ways to exercise these remedies;
commercial guarantees.

KEY POINTS

The legislation applies to sales contracts between a consumer and a seller for the supply of goods.

The legislation does not apply to:

the supply of digital content* or digital services*, unless these are incorporated or inter-connected with the goods themselves, necessary for them to perform their functions and provided under the sales contract (goods with digital elements);
any physical medium used exclusively to carry digital content (e.g. CDs, DVDs, etc.).

Sellers must ensure goods delivered to the consumer conform with the sales contract by:

complying with what was contractually agreed, e.g. fit the description, type, quantity, quality and possessing the features required by the contract, being fit for the agreed purposes etc.; and
complying with objective conformity criteria, i.e.
be fit for the purposes for which similar goods are normally used
correspond to the sample or model shown to the consumer
be delivered with the accessories, instructions and packaging that the consumer can reasonably expect and
possess the qualities and features that the consumer may reasonably expect.

Sellers are liable for any lack of conformity which becomes apparent within 2 years of delivery. During the first year, the consumer does not have to prove that the defect existed at the time of delivery.

For goods with digital elements:

sellers must inform and supply the consumer with all updates needed to keep them in conformity for the duration that the consumer may reasonably expect, unless the digital element of the goods is supplied continuously, in which case updates should be provided throughout the period of supply;
sellers are liable for any lack of conformity which becomes apparent within 2 years of delivery, unless the digital element is to be supplied continuously for a longer period, in which case the seller is liable throughout the period of supply.

If goods are defective (‘lack of conformity’), consumers are entitled to the following remedies:

choice between repair and replacement of the goods, free of charge, within a reasonable time and without any major inconvenience. The seller can give the alternative remedy if the one chosen is impossible or involves disproportionate costs for the seller;
a proportionate reduction in price;
termination of the contract, except if the defect is only minor.

Commercial guarantees:

are binding on the guarantor under the conditions laid down in the guarantee statement and associated advertising, whichever is more advantageous to the consumer;
must be provided to the consumer in plain, intelligible language and a way that it is accessible for future reference;
include:
confirmation the consumer is entitled by law to remedies from the seller for any defects free of charge
name and address of the guarantor
the procedure for implementing, and the terms of, the guarantee.

EU countries may:

exclude from the legislation second-hand goods sold at public auction, and live animals;
regulate aspects of general contract law or the right to damages where these are not covered by the directive;
allow consumers to choose a specific remedy if the goods’ lack of conformity becomes apparent within 30 days of delivery, or maintain specific rules on guarantees for hidden defects.

EU countries:

must not apply measures, including more or less stringent consumer protection provisions, different from those in the directive;
are allowed to apply longer time limits for seller liability than those in the directive;
may stipulate that to benefit from consumer rights the customer must inform the seller within 2 months of detecting the defect;
ensure adequate and effective means exist to ensure compliance with the legislation;
inform consumers of their rights under the directive and how these may be enforced;
adopt and publish the measures set out in the legislation by 1 July 2021.

The European Commission submits a report to the European Parliament, the Council and the European Economic and Social Committee by 12 June 2024 on implementation of the directive.

BACKGROUND

The directive aims to strike a balance between a high level of consumer protection and increased business competitiveness, while respecting the principle of subsidiarity. It forms part of the digital single market strategy which provides a wide-ranging framework to encourage integration of the digital dimension into the internal market.
The legislation complements Directive (EU) 2019/770 which lays down rules on the supply of digital content and digital services, including digital content supplied on a physical medium (such as DVDs, CDs, USB sticks and memory cards).

KEY TERMS

Sales contract: a contract where the seller transfers ownership of goods to a consumer in exchange for a price.
Goods:
any physical movable items, including water, gas and electricity when sold in a limited volume or a set quantity;
any physical movable items that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions (‘goods with digital elements’).
Digital content: data produced and supplied in digital form.

Digital service:
a service that allows the consumer to create, process, store or access data in digital form, or
a service that allows the sharing of or other interaction with data in digital form uploaded or created by the consumer or other users of that service.

DOCUMENTS

Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ L 136, 22.5.2019, pp. 28-50)

Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (OJ L 136, 22.5.2019, pp. 1-27)

Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market (OJ L 168, 30.6.2017, pp. 1-11)

Successive amendments to Regulation (EU) 2017/1128 have been incorporated into the original document. This consolidated version is of documentary value only.

Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, 7.7.1999, pp. 12-16)