The deadline has now expired for EU member states to transpose into national law the EU’s Consumer Rights Directive. Consumers have been endowed with reinforced rights particularly when they go shopping online.

Following the adoption of this directive at EU level in 2011, member states had a two-year period within which to transpose the directive into national legislation.

The rules found in the Directive seek to boost consumer confid-ence, particularly when shopping online, by affording consumers the utmost protection.

Thus, for example, a new rule now bans pre-ticked boxes on websites. It is quite a common occurrence for online shoppers to be offered additional services during the purchase process, such as travel insurance or car rental when purchasing a plane ticket. Such services are sometimes offered through pre-ticked boxes which consumers have to un-tick if they are not interested. Such pre-ticked boxes have now been banned across Europe so that consumers are fully aware of what they are purchasing.

The Directive also seeks to protect consumers against hidden charges and costs while ensuring price transparency. It is not the first time that consumers are tricked into paying for “free” services, such as horoscopes or recipes. The law now makes it clear that consumers must explicitly confirm that they understand that they would have to pay a price for obtaining such services. Traders are also obliged to disclose the total cost of a product or service as well as any extra fees. Online shoppers are not obliged to pay any charges or other costs if they were not properly informed about them before placing an order.

The period within which consumers can exercise their right of withdrawal and return the goods purchased for whatever reason has now been harmonised to 14 days across Europe. The right of withdrawal in the case of distance contracts was already enforced in all EU member states. However, the conditions for the exercise of this right in terms of the various national laws were fairly different, causing severe difficulties for cross-border trade.

This was particularly the case with regard to the period within which a consumer can exercise his/her right to withdraw from a contract. The uniform 14-day period now provided for by the Consumer Rights Directive therefore does much for legal certainty.

This right of withdrawal has been extended to online auctions, such as eBay. However, in such cases, the goods bought can be returned only when purchased from a professional seller.

The withdrawal period will start from the moment that the consumer receives the goods, rather than at the time of conclusion of the contract, which is currently the case. This right applies in the case of purchases effected over the internet, the phone and via mail order, as well as to sales outside shops, for example on the consumer’s doorstep, in the street, at a Tupperware party or during an excursion organised by the trader. Traders must refund consumers for the returned product within 14 days of the exercise of the right of withdrawal.

If a trader wants the consumer to bear the cost of returning the item purchased, he will have to clearly inform consumers about this beforehand or otherwise pay for the return of the item himself. The Consumer Rights Directive also makes provision for better consumer protection in relation to digital products. Information on digital content has to be clearer. For example, it is now obligatory for traders to disclose information about a product’s compatibility with hardware and software and the application of any technical protection measures, such as a limitation on a consumer’s right to make copies of the content. Consumers also have a right to withdraw from purchases of digital content, such as music or video downloads, but only up till the moment that the actual downloading process begins.

The Consumer Rights Directive has recently been transposed into Maltese law through the Consumer Rights Regulations. Being for most of its part a full harmonisation directive, there is little leeway left for member states to impose either more or less stringent provisions when transposing it. Such an approach ensures legal certainty for consumers and a level playing field for traders across Europe. Consumers can effect online purchases fully aware of what their rights are and irrespective of in which member state the trader is established, while traders can freely engage in cross-border trade fully aware of the rules of the game.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

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