The Distance Selling Directive Applies to Any Consumer Distance

John ordered a number of small items from the same online supplier for his child’s birthday. The items included a games console together with several games, a tricycle (his child had picked this toy when they visited a high street store), music CDs, an e-book (compatible with his e-book reader), an iPod engraved with his child’s name and a selection box of chocolates. Some items arrived a month before his child’s birthday. Other items did not arrive at all. John doesn’t have a telephone number to contact the supplier about the undelivered items, and it is taking a few days to get a response to e-mails which he has sent demanding redress. Ignoring issues of jurisdiction and applicable law, does John have any protection available to consumers under existing rules, particularly those concerning distance contracts and/or the provision of information society services, remedies available to John under the existing Legal framework, and are there any proposals for this position to change in the future?

1.0 INTRODUCTION

Recent advances in three areas — computer technology, telecommunications technology, and software and information technology — are changing lives in ways scarcely imagined less than two decades ago. These modern technologies are being combined, especially through the Internet, to link millions of people in every corner of the word, deals are struck, transactions completed, and decisions taken in a time-frame that would have seemed simply inconceivable a few years ago. [1]

Shopping has evolved with growth of technology which has made it possible for people to conclude on line rather in store and with this came the advent of electronic transactions (E-Contacts). Electronic commerce (EC or e-commerce) describes the process of buying, selling, transferring, or exchanging products, services, or information via computer networks, including the Internet [2] and a legal frame work that would regulate the buying and selling of goods at a distance has been created.

The aim of the European Union legislation in the field of distance selling is to put consumers who purchase goods or services through distance communication means in a similar position to consumers who buy goods or services in shops thereby creating confidence and certainty in distance contracts.

The Directive 1997/7/EC [3] (Distance Selling Directive) was put in place to address the growing trend and provides a number of fundamental legal rights for consumers in order to ensure a high level of consumer protection throughout the EU. The E-commerce Directive 2000/31/EC [4] was also adopted to provide a legal framework for the provision of Information Society Services [5] within the European Union.

In the words of the European Consumer Affairs Commissioner Meglena Kuneva [6] . “Consumers and retailers are beginning to embrace e-commerce at national level but internal market barriers still persist online. The potential of the online internal market to deliver

greater choice and lower price to consumers and new markets for retailers is considerable. We need to redouble our efforts to tackle the remaining borders.”

This essay is going to look at protection available to consumers under existing rules, particularly those concerning distance contracts and/or the provision of information society services, remedies available to John under the existing Legal framework, the challenges of cross border e – commerce in the EU and evaluate the proposals in the new framework.

2.0 THE DISTANCE SELLING DIRECTIVE 97/7/EC

The Distance Selling Directive applies to any consumer distance contract made under the law of an EU-Member State as well as the European Economic Area (EEA). [7] The directive ensuring the protection of consumers within the EU in respect of distance contract [8] using “means of distance communication” [9] has provided certain rights and obligations between a supplier and consumer.

Directive 97/7/EC applicable law consumer distance contracts within EU Member State as well as European Economic Area (EEA). The directive aims at ensuring a high level of protection for consumers within the EU by providing certain rights and obligations between a supplier and consumer when transacting at a distance using “means of distance communication.” [10] It provides the following the rights:

According to the Directive the following consumer rights among others need to be respected:

Article 4 of the Directive provides the provision of comprehensive information by the supplier before the purchase.

Article 5 provides that the confirmation of the information by the supplier in (Art 4) t0 be in a durable medium( such as written confirmation)

The Consumer’s right to cancel the contract within a minimum of 7 working days without giving any reason and without penalty, except the cost of returning the goods (right of withdrawal) is provided for by Article 6.

Article 6(2) provides the consumer’s right to a refund within 30 days of cancellation, in the event that where the consumer cancels the contract.

Article 7 provides that the delivery of the goods or performance of the service by the supplier shall be wi within 30 days of the day after the consumer placed his order or where the goods or service ordered is not available inform the consumer of any alternative at the same price or a refund as soon as possible or within 30 days.

Article 8 Provides Protection from fraudulent use of payment cards by allowing a consumer to request cancellation of a payment where fraudulent use has been made of his payment card in connection with distance contracts covered by this Directive.

Article 12 The strength of every distance contract rest upon the prior information requirement as provided by Article 4 and must be complied with. In accordance with

the directive the following prior information shall be furnished by the supplier to the consumer in good time prior to the conclusion of any distance contract [11] stating:

“(a) the identity of the supplier and, in the case of contracts requiring payment in advance, his address;

(b) the main characteristics of the goods or services;

(c) the price of the goods or services including all taxes;

(d) delivery costs, where appropriate;

(e) the arrangements for payment, delivery or performance;

(f) the existence of a right of withdrawal, except in the cases referred to in Article 6 (3);

(g) the cost of using the means of distance communication, where it is calculated other than at the basic rate;

(h) the period for which the offer or the price remains valid;

(i) where appropriate, the minimum duration of the contract in the case of contracts for the supply of products or services to be performed permanently or recurrently.” [12]

As regards John case it can be said that requirement of Article 4( 1) (a) (e) and (f), as stated above and that of ‘address’ ‘performance ‘ [13] and a ‘right of withdrawal’ was not complied with. And the provisions of Art 5(1) which provides that consumer must receive written confirmation or confirmation in another durable medium available and accessible to him of the information referred to in Article 4 (1) (a) to (f), in good time during the performance of the contract was not complied with.

It can be categorically said that if the provisions of (Art 5(1)) was met as required John would not be having difficulty contacting the supplier seeking redress, because the ‘prior information’ in writing or a durable medium would have availed him of the ‘geographic address’ of the supplier , time for performance of the contract and his right of withdrawal.

Also taking a look at Art 7( 1)(97/7/EC) which states that “unless the parties have agreed otherwise, the supplier must execute the order within a maximum of 30 days from the day following that on which the consumer forwarded his order to the supplier; and also Art 7(2)(97/7/EC) Where a supplier fails to perform his side of the contract on the grounds that the goods or services ordered are unavailable, the consumer must be informed of this situation and must be able to obtain a refund of any sums he has paid as soon as possible and

in any case within 30 days; and lastly Art7(3)(97/7/EC) which further states that hat the supplier may provide the consumer with goods or services of equivalent quality and price provided that this possibility was provided for prior to the conclusion of the contract or in the contract. With regards to the goods that were not delivered It can be said that John was not of the above information stated in Art 7(2) of the directive or even an equivalent as provided in 7 (3)

In the event that the contract is part performed and the issues of non delivery of the some of the goods ordered arises, items that John purchased which falls under the directive would be required to be listed.

Games Console

A tricycle

Music CD’s

An iPod

Box of Chocolates

3.0 THE E– COMMERCE DIRECTIVE 2000/31/EC

The E-Commerce Directive 2000/31/EC sets out principles and duties to reach a high standard of consumer protection. [14] The directive ensures “the free movement of “information society services” across the European Community and to encourage greater use of e-commerce by breaking down barriers across Europe and boost consumer confidence and trust by clarifying the rights and obligations of businesses and consumers” [15]

Remedies available to John under the provisions of this directive are going to be taken into considerations. Art 2(a) of the directive makes reference to the definition of “information society services”: within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; which provides defines an ‘ISS’ as

‘‘any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storageof data, and at the individual request of a recipient of a service;’’(Art. 1(2)98/48/EC) [16]

Considering the words ‘any service normally provided for remuneration, at a distance, by means of electronic equipment’ the e-book accurately falls under it as John’s computer being the ‘equipment’ that would receive the e – book and John been the recipient of the service.

Art. 5 (1) of the E- Commerce directive provides general information requirements that an ISS provider must provide to recipients’ of the service easily, directly and permanently prior to the conclusion of the contract: An ISS “provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, information: (a) the name of the service provider;

(b) the geographic address at which the service provider is established;

(c) the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner;”(Art. 5(1)(a – c )2000/31/EC) [17]

Taking a look at the provisions of Article 5(1) (a)-(c) the question now is if the online supplier meets the requirements for provision of an ISS. In John’s case a geographic address was not provided pursuant to Art. 5 (1) (b) an e – mail address was provided pursuant to Art. 5(1) (c) of the directive.

But considering the position of the court in the German case of Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV V. deutsche internet versicherung AG [18] (‘’DIV Case’’) It was held by the courts that providing only an e – mail address as a sole means of contact does not comply with the provision of Art. 5(1) (c) of the directive stating categorically that

“…….in addition to its e – mail address other information which allows the service provider to be contacted rapidly…..” [19] [Emphasis supplied]

That is it would be fundamental for other means of contact to be provided by the supplier. With regards to the decision of the court in the above case and the provisions of Article 5 (1)(c) the e – mail address of the online supplier cannot be said to fully comply with the provisions of Art. 5 (1) (c), This is because in the words of paragraph 17 of the Judgement “Thus, it is clear from the wording of Article 5(1)(c), and in particular the word ‘including’, that the Community legislature intended to require the service provider to supply recipients of

the service, in addition to its electronic mail address, with other information in order to achieve the result intended by that provision” [20] That is the ISS provider is to provide details including its e – mail address to achieve the purpose of rapid communication in a direct and effective manner.

Borrowing the decision in the above case,the provision of Art 5(1) (c) is not fully satisfied by the on line supplier as ‘details of the service provider ’ which allow him to be contacted rapidly and communicated with in a direct and effective manner” is not provided, as this is evident in the fact it is taking a few days to get a response to e-mails which John has sent demanding redress.

The court in paragraph 20 of the Judgement further said that “Accordingly, the mention of the ‘electronic mail address’ in Article 5 (1)(c) of the Directive reflects the Community legislature’s wish to ensure that information giving access to an electronic communication is to be supplied by the service provider to the recipients of the service, but does not mean that it intended to dispense with other types of non-electronic communication which may be used in addition to it” [21]

Further information is also provided for by Article 10 of the directive that except where expressly agreed otherwise at least the following information is given by the service provider clearly, comprehensibly and unambiguously and prior to the order being placed by the recipient of the service:

“(a) the different technical steps to follow to conclude the contract;

(b) whether or not the concluded contract will be filed by the service provider and whether it will be accessible;

(c) the technical means for identifying and correcting input errors prior to the placing of the order;

(d) the languages offered for the conclusion of the contract.” [22]

Article 11 further provides that except when otherwise agreed by parties who are not consumers, that in cases where the recipient of the service places his order through technological means, the following principles apply:“the service provider has to acknowledge the receipt of the recipient’s order without undue delay and by electronic means; and the order and the acknowledgement of receipt are deemed to be received when the parties to whom

they are addressed are able to access them” [23] In this circumstance there is no indication that any statement was in fact provided regarding the different technical steps John would take to conclude the contract or access the service requested , as John would be better informed. Information on how to identify and resolve input errors nor was language requirements also provided.

The statutory duty required by the directive to provide the requisite information for the conclusion of contract has not been fully complied with by the on line supplier. And also the acknowledgement of receipt as provided for by Article 11 was not sent to John.

The next question to ask is that are there any remedies available to John under the directives (97/7/ec & 2000/31/ec).

In accordance with the provisions of Article 6 under the distance selling directive the right of withdrawal can be exercised by John and where the right of withdrawal has been exercised the supplier shall be obliged to reimburse the sums paid by the consumer free of charge as soon as possible or within 30 days he shall only bear the cost of return of the goods.

Following the provisions of Art 6 John can exercise his right of withdrawal for the games console and tricycle. But by virtue of Art 6(3) which provides that “Unless the parties have agreed otherwise, the consumer may not exercise the right of withdrawal provided for in paragraph 1 in respect of contracts:

for the provision of services if performance has begun, with the consumer’s agreement, before the end of the seven working day period referred to in paragraph 1,

for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier,

for the supply of goods made to the consumer’s specifications or clearly personalized or which, by reason of their nature, cannot be returned or are liable to deteriorate or expire rapidly,

for the supply of audio or video recordings or computer software which were unsealed by the consumer,

for the supply of newspapers, periodicals and magazines,

for gaming and lottery services”

John can only exercise his right of withdrawal for the music CD’s and games, if the goods have not been ‘unsealed.’ The iPod engraved with his child’s name also falls under the Art 6(3) because it is made to John’s specifications and personalized with engraving of his son’s name. The box of chocolate cannot be returned as it is liable to deteriorate or expire rapidly.

Pursuant to Art 7(1) of the directive “unless the parties have agreed otherwise, the supplier must execute the order within a maximum of 30 days from the day following that on which the consumer forwarded his order to the supplier” and since the goods have not been fully delivered and no refund of any sums he has paid as soon as possible and in any case within 30 days as stated in Art 7(2) and that the “supplier may provide the consumer with goods or services of equivalent quality and price provided that this possibility was provided for prior to the conclusion of the contract or in the contract… the cost of returning the goods following exercise of the right of withdrawal (by John)shall, in this case, be borne by the supplier”Art7(3)

By the provisions of Art 6(4) John can withdraw from the contract within a period of 3 months depending on the EU member state he is domiciled in and any credit agreement cancelled without penalty as there is no prior information providing for 7 days ‘cooling off period’ [24]

Art.11 provides ‘John’ with judicial or administrative redress thus he can approach the courts in his country’s court or an administrative body responsible for consumer protection, to ensure that the national provisions for the implementation of this Directive are applied.

By the provisions of Art. 12 consumer may not waive the rights conferred on him by the transposition of this Directive.

An effective means to deal with consumers’ complaints in respect of distance selling shall also be established as provided for by Art 17

In this regard the supplier has breached the provisions of Articles 4, 5, 6 & 11 of the directive.

An action for a breach of duty under the E- Commerce directive (2000/31/EC) to provide information prior to contract can also be brought by the customer by the provisions of Art 5 as the supplier did not state the different technical means in concluding the contract or an acknowledgement of receipt of the information in when accessed or, hence the supplier is in breach of Art 11 [25] As the required information were not provided by the ISS prior to the conclusion of the contract. The requirements are important as provided in Articles. 5,10 & 11 of the EC directive.

On the issue of exercising the right of withdrawal we refer to Recital 11 of the directive which provides that the E – commerce directive is subject to the protection in 97/7/EC with regards right of withdrawal under Art 6 97/7EC.

Also by Art 6(3) the e – book reader purchased by John, if he was able to access it, would be precluded by Art 6(3) because due to its nature it cannot be returned.

Article 17 & 18 also provides for out of court settlement and court. Complaints can be lay by the consumer through a consumer advocacy bureau such as the European Consumer Centres Network (ECC-Net) [26]

The same protection is also provided for in Art. 12 (2) of the 97/7/EC which guarantee’ s the consumer in the Europe even when the country is a not member of the European Union but has a close connection with the territory of one or more EU member states. However, subject

to Article 15(1) (c) of the Brussels I Regulation (44/2001) [27] a consumer in Europe’s habitual domicile shall have Jurisdiction to entertain suit a filed against the trader who ‘directs his activities’ towards the consumers country or to several other countries including country and the contract falls within the scope of those activities, similarly the applicable law shall be that of the consumer’s habitual domicile if it can be found that the trader also ‘directs his activities’ towards that country or several other countries including that country as provided for in Art. 6 (1) (c) of the Rome I Regulation EC (593/2008). [28]

4.0 CROSSING THE LINES: THE CHALLENGE OF CROSS BORDER E – COMMERCE IN THE EU

A 2007 report by the Organization for Economic Co-operation and Development found consistent reasons “retailers don’t export everything from fear of fraud, concerns over logistics and payments, import laws and language barriers. Indeed, discussions about doing business globally and accepting international payments online sometimes conjure images of nightmarish complications — increased risk of fraudulent transactions, complex political or regulatory issues, and customs or taxation problems” [29]

The European Commission in March 2009 published a detailed report on cross-border e-commerce .The report revealed that the gap between domestic and cross-border e-commerce was widening. From 2006 to 2008, the share of EU consumers shopping online grew from 27% to 33% while cross border e-commerce remained more or less at the same level (6% to 7%). [30]

Potential for cross-border online trade is also failing to materialize . 51% of EU27 retailers sell via the internet, but only 21% are currently conducting cross-border transactions, down from 29% in 2006 (in the EU25). The same proportion (21%) advertises cross-border. And retailers who do trade cross-border usually only sell to very few Member States: only 4% of those retailers trade with 10 or more Member States, most trade with one or two other Member States.

The issue of redress is the major constraint of cross border e – Commerce in the EU because in most cases goods requested are not delivered by the e – merchants. According to the ECC – Net [31] ‘73 % of the complaints that was received in 2008 was for non delivery’ [32] of the goods

or services ordered, while 15 % of the complaints was for delayed delivery and 7% was for partial delivery [33] which is similar to the case of ‘John’ and e- toys4U.hk. This is due largely divergent consumer protection regimes in different Member states and non compliance of e – merchants with the directives.

For retailers in Europe, the fragmentation of consumer protection rules and other rules on VAT, recycling fees and levies are the main regulatory barriers to cross-border e-commerce. [34] The national implementation of these rules differs markedly from one Member State to another, giving rise to a business environment that is complex, costly and unpredictable. The adoption of proposals to tackle these obstacles is therefore central to changing the behaviour of retailers and, as a result, the opportunities for consumers. [35]

When trying to shop online consumers are faced with a number of problems in another country. Foreign online traders have severally refused to accept orders from consumers living in another country. As uncertainty about what to do or who to turn to should they experience a problem are experienced by consumers, especially if it comes to resolving a complaint with a foreign trader. [36]

The fragmentation in the existing legislative framework is believed by the European commission [37] not adequately protect consumers and creates internal market problems:

“The European Commission have cited the legal fragmentation of business-toconsumer rules as a barrier to the Internal Market and consumer confidence in crossborder shopping. Member States have different rules on distance and off-premises selling and these variations create unnecessary costs and disincentives for business when trading cross-border. In order to achieve a single set of European contract rules on consumer remedies, EU action is necessary to harmonise the legislative and regulatory framework across the 27 Member State” [38]

To build consumer confidence and to promote cross-border consumer purchases within the EU, a new consumer rights directive has recently been proposed by the European Commission. If implemented, the Directive will replace four existing consumer directives, namely the Doorstep Selling Directive (85/577/EEC), the Unfair Terms in Consumer Contracts Directive (93/13/EEC), the Distance Selling Directive (97/7/EC) and the Consumer Sales and Guarantees Directive (1999/44/EC). The effect would be one of full harmonisation across each of the 27 member states.

5.0 ISSUES PROPOSED IN THE NEW CONSUMER PROTECTION DIRECTIVES

A higher level of consumer protection is ensured, establishing a real retail internal market, making it easier and less costly for traders to sell cross border and providing consumers with a larger choice and competitive prices. [39]

The proposed Directive, specifically Articles 4 and 5, would establish minimum requirements for consumer protection. [40] It would put in place EU wide rules covering:

PRE-CONTRACTUAL INFORMATION : A contract prior to conclusion , the Directive would require before concluding a contract the Directive would require key information such as, the main characteristics of the product, geographical address and identity of the trader, the price inclusive of taxes, all additional freight, delivery or postal charges etc to be provided by the trader to the consumer. As this would enable the consumer to make an informed choice. [41]