EC launches review Distance Selling Directive

20 November 2006

Louise Aspinwall

The European Commission's review of the transposition into national laws of the Distance Selling Directive is about to enter its second phase, with the ending of the consultation period on 21 November 2006.

The aim of the consultation is to identify any variations in the legislative instruments transposing the Directive into national law, arising from the ability of the Member States to introduce more stringent provisions than those contained in the Directive. The Commission wishes to determine whether divergences in national legislation have had an effect on the Internal Market, and business and consumer confidence in cross-border trade. Once the consulation and review are completed, the Commission will determine whether the Directive should be updated.

The minimum clause requirements mean that the Directive has been interpreted slightly differently in the Member States. For instance in the UK the so-called “cooling-off” period in which time a consumer may withdraw from a distance contract, is seven working days after the goods are delivered, but in Denmark it is fourteen days. This has led to a serious inconsistency and has caused confusion for consumers ordering goods from different countries within the EU.

The Commission also wishes to establish whether the various exemptions from the Directive remain appropriate, for example the exclusion of contracts concluded at an auction. The Commission has learned that in France the auction exemption has been limited to “public” auctions; while in Denmark the exemption applies only to auctions at which most of the bidders are physically present. The Commission reports that it has become aware of national caselaw regarding the status of websites such as eBay and whether they are auction houses and therefore exempt from the Directive. The need to investigate this area is particularly presssing in light of the increased business-to-consumer (“B2C”) nature of online auctions.

The Commission further notes in its consulation paper that it considers the current definition of “means of distance communication” to be flexible enough to cover new means of distance communication such as “m-commerce”, namely commerce undertaken by short message service “SMS”.

All interested parties are invited to respond to the Commission’s consulation paper by 21 November 2006.

The Commission is currently reviewing eight directives relating to the protection of consumers’ economic interests.


Source: Communication from the Commission to the Council, The European Parliament and the European Economic and Social Committee on the Implementation of Directive 1997/7/EC of the European Parliament and of the Council of 20 May 1997 on the Protection of Consumers in respect of Distance Contracts (COM(2006)514 final) available at http://ec.europa.eu