The European Commission s proposed consumer rights directive will help simplify European rules and improve the functioning of the internal market. The Social and Economic Council's Committee for Consumer Affairs (CCA) agrees with much of the proposal, although it would like to see clarification of various points. Some aspects of the proposal fall short with respect to consumer protection, however, particularly when viewed from the vantage point of Dutch consumer legislation. These are the observations of the CCA in its advisory report Consumentenrechten in de interne markt
[Consumer rights in the internal market]. Full harmonisation
The proposed directive will replace four existing directives within the EU s Consumer Acquis. One new element is that the proposed directive would be based on full harmonisation. The European Commission expects full harmonisation to increase consumer and business confidence in the internal market and promote cross-border trade. Until now, minimum harmonisation has been the rule for consumer rights directives, whereby the Member States are free to step up consumer protection in their own territories.
The CCA endorses full harmonisation provided that the proposal offers a high level of consumer protection and does not lead to extra red tape for traders. Full harmonisation can result in more cross-border trade in this way, although the CCA does not have exaggerated expectations in that respect. Non-conformity
The advisory report proposes a different regime for non-conformity than that set out in the proposed directive. The term non-conformity refers to a product that does not comply with the contract under which it was sold. The CCA would like the rights and obligations of traders and consumers to be more evenly divided in such situations. The advisory report proposes the following inseparable elements: time limits and burden of proof, sanctions, duty to complain, and guarantees.
Traders will be legally liable for faulty products for a fixed two-year period; it will be up to the trader to demonstrate that the fault did not exist when the product was sold. It is then up to the consumer to provide evidence to the contrary, if necessary. To avoid situations where products are repeatedly returned for repair, the number of repairs should be limited and a guarantee issued on the repaired part.
The fixed two-year period will encourage traders to offer commercial guarantees. The new obligation to provide information will also force traders to provide clearer information on such guarantees. At the moment, consumers regularly purchase extra commercial guarantees because they are unaware of their existing statutory rights (See full text in annex). General Terms and Conditions
In the CCA s view, the proposed directive fails to offer a high level of consumer protection in some respects. That is the case for the General Terms and Conditions (GTC). The Netherlands has an extensive system of bilateral General Terms and Conditions and related dispute committees. The CCA is basically a proponent of EU-wide GTC, but the proposed directive will first have to be brought into line with existing Dutch legislation. If the new directive falls short in this respect, then the CCA believes that the need for existing national arrangements will persist. Contracts for services
The new directive will cover the sale of goods and services. The CCA applauds the fact that the directive prescribes information obligations for service contracts. This may encourage further quality standards for services and self-regulation of such standards. The CCA makes an exception for healthcare, however. Given the importance of healthcare and the differences between the Member States with respect to terminology and organisation, the CCA believes that healthcare services should be excluded from the directive. Fewer information rules
The advisory report supports the view that consumers need information in order to arrive at an informed choice about a contract. Nevertheless, the CCA would like to see fewer information rules, since not all of the proposed information is relevant for everyday, non-durable consumer purchases. The CCA is in favour of adding rules to the directive indicating how consumers and traders should proceed if the information provision is faulty. Cooling-off period
A fourteen-day cooling-off period will apply for both distance sales (for example via the Internet) and for off-premises contracts ( direct selling ). That is lengthier than the coolingoff period currently provided for under the existing directives. This is an advantage for the consumer, as he or she has a longer period of time to inspect the products. The CCA believes it is a good idea to make the cooling-off period for distance selling and direct selling the same, as it makes things clearer for both the trader and the consumer. The CCA also thinks that consumers who have decided to exercise their right of withdrawal should return the product faster, and that traders should then be quicker about refunding their money. More about the report
The CCA prepared the advisory report under the chairmanship of Crown member Yvonne van Rooy. The CCA is made up of representatives of the business associations VNO-NCW and MKB-Nederland, the Dutch Consumers Association [Consumentenbond
], and independent members. The advisory report is the CCA s response to the Dutch Government s request for advice of December 2008. The report will assist members of the Government in ongoing negotiations on the proposed directive in Brussels.
In the following annex you will find:
Translation: Balance Translations, Maastricht