Significant progress has recently been registered in the long road towards the adoption of a somewhat controversial law which is intended to enhance the rights of consumers across Europe. First proposed by the European Commission way back in 2008, the salient concern of most European consumer organisations is whether the law which will eventually see the light of day, would be capable of providing adequate protection to all European consumers, irrespective of how they purchase or from where they purchase their goods.

Consumer rights are currently safeguarded by four separate laws, dealing with unfair contract terms, sales and guarantees, distance selling and doorstep selling. These laws set out certain minimum requirements, leaving member states free to introduce more stringent legislation. The result has been that EU consumer contract law may be said to be a patchwork of 27 sets of differing rules creating legal uncertainty for businesses and consumers alike when effecting transactions across borders.

The objective of the draft law as proposed by the Commission was to merge these four distinct laws into one set of fully harmonised rules in order to simplify matters for both consumers and business alike. Due to the divergent views of member states and hence the difficult task of attaining consensus, when taking its vote, the Council of Ministers took the stance of narrowing the scope of the new directive and ensuring full harmonisation upon the aspects agreed upon.

On the other hand, the Consumers Affairs Committee of the European Parliament took a mixed approach, seeking full harmonisation in certain areas such as information requirements, delivery deadlines and a right of withdrawal for distance and off-premises sales while leaving member states free to retain higher standards in other areas, such as in relation to the available remedies when the goods are not as described in the contract of sale.

The revised text of the proposed directive harmonises a number of issues such as the aspect of information requirements and the right of withdrawal in the case of distance and off-premises contracts. This means that, for example, in so far as the requisite to give pre-contractual information is concerned, all European traders selling over the net would be obliged to provide consumers with a clear set of information so that consumers can make an informed choice. Similarly, a clear rule on the passing of the risk was also introduced for contracts in which traders send goods to consumers. In such situations, a merchant would bear the risk for any damage to goods in transport until a consumer takes possession of the good.

In so far as cooling off periods in the case of distance and off-premises sales, a standard withdrawal form has also been introduced to make it easier for consumers to withdraw from a contract. Consumers are obliged to send back the goods within 14 calendar days after a withdrawal and shall only bear the direct costs of returning the goods. Consumers may also withdraw from services contracts even after the service has started. If they do so, however, they will have to pay for services provided until the withdrawal occurs.

Despite recent progress on the proposed directive, the new law cannot be considered as yet a fait accompli. The ball will be thrown once more into Parliament’s court next month for its vote in the plenary session with a subsequent inter-institutional deal in May 2011.

Whether the final version of the proposed directive to gain the approval of all and sundry would still be the proper medium whereby consumer confidence is enhanced and a level playing field for industry secured, is still to be seen.

mariosa@vellacardona.com

Dr Vella Cardona is a practising lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is also a member of the National Commission for the Promotion of Equality.