A new mandatory withdrawal button is on the horizon

Background

On May 11, 2022, the European Commission submitted a proposal for a directive (“VRRL-E”)to amend Directive 2011/83/EU (Consumer Rights Directive; CRD) and repeal the Financial Services Directive 2002/65/EC, which is 20 years old. The main objective of the proposal is to protect consumers, particularly in relation to complex financial services that may be difficult to understand. To achieve this, the proposal recommends the inclusion of a withdrawal button in distance contracts for financial services. The European Council has now received the VRRL-E to extent the withdrawal button requirement to further contract types.

The VRRL-E has proposed supplementing the VRRL with a new Article 11a. Article 11a (1) VRRL-E will mandate the inclusion of a withdrawal button for all distant selling contracts “concluded by the means of an online interface”.

Specific proposal for implementation

"Article 11a Exercise of the right of withdrawal from distance contracts concluded by the means of an online interface

1. For distance contracts concluded by the means of an online interface, the trader shall ensure that the consumer can withdraw from the contract on that same online interface by using a button or a similar function. The button or a similar function shall be labelled in a legible manner and shall contain the words “withdraw from contract here” or a corresponding unambiguous formulation. The withdrawal button or a similar function shall be placed on the online interface in a prominent manner and be easily accessible to the consumer. […]“

The new proposal does not provide a definition of "online interfaces", but recital 25 of VRRL-E explicitly states that “websites and applications” as examples.

Information to be provided

In order to be able to make his declaration of withdrawal, the consumer should indicate his name, the name of the contract and information on the receipt of the confirmation of withdrawal. The recitals also mention the possibility of confirming the information necessary to identify the contract. For example, a consumer who has already identified himself - e.g. by logging in - could confirm which contract is to be withdrawn from without having to provide a name and the name of the contract.

Art. 11a

(2) Using the button or a similar function shall allow the consumer to make the withdrawal statement by providing or confirming the following information:

(a) name of the consumer;

(b) identification of the contract;

(c) details of the electronic means by which the confirmation of the withdrawal shall be sent to the consumer.

According to Art. 11a (3) VRRL-E, the final submission of the declaration of withdrawal shall also be made via a button, which in turn is marked with the words "withdraw now" or a corresponding unambiguous wording.

"(3) The withdrawal statement shall be submitted by using a confirmation button or a similar function. The confirmation button or a similar function shall be labelled in a legible manner with the words “withdraw now” or a corresponding unambiguous formulation.“

Confirmation of the withdrawal

If the consumer has declared the withdrawal via the withdrawal button, traders must confirm it without delay on a durable medium.

“(4) Once the consumer uses the confirmation button or a similar function, the consumer shall then automatically receive a confirmation that the withdrawal statement has been submitted, including the date and time of the submission.

“(5) The trader shall confirm to the consumer without undue delay the content of the withdrawal statement, including the date and time of its receipt, on a durable medium Information about the cancellation button.”

Amendments of withdrawal right instructions will be necessary

In addition, the current Art. 6 VRRL, which contains the information requirements for distance contracts, is to be expanded so that in the future information must also be provided about the cancellation button. For this purpose, Art. 6 (1) (h) VRRL shall be amended as follows:

“(1a) In Article 6 paragraph 1, point (h) is replaced by the following:

(h) where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with Article 11(1), as well as the model withdrawal form set out in Annex I(B), and, where applicable, information about the existence and placement of the withdrawal button or a similar function referred to in Article 11a;”

Outlook

Overall, if the new proposal is passed, it may improve consumer protection, but online traders will have new obligations to deal with in relation to the right of withdrawal. The new withdrawal button will cause technical implementation efforts and make changes in the process of handling withdrawal rights necessary. Further, changes to mandatory withdrawal right instructions may be necessary. In any event, the final version of the new law should be monitored closely.