For the rules on distance selling to apply at least two conditions must be met.
The first condition is that the contract for buying goods and/or services to be concluded between a consumer (individual person or group of individual persons buying goods and services for their own use and acting outside their commercial, artisan or liberal activity) and a professional.
The second condition is the contract to be concluded using distance communication means, meaning a way that does not imply the simultaneous presence of the parties. Be careful, the professional must use exclusively before and at the moment when the contract is concluded one or more distance communication means.
The contracts excluded from the rules on distance selling are:
- for social services, including social housing, childcare and support of families and persons permanently or temporarily in need, including long-term care;
- for healthcare, whether or not they are provided via healthcare facilities;
- for gambling, which involves wagering a stake with pecuniary value in games of chance, including lotteries, casino games and betting transactions;
- for the creation, acquisition or transfer of immovable property or of rights in immovable property;
- for the construction of new buildings, the substantial conversion of existing buildings and for rental of accommodation for residential purposes;
- for package travel, package holidays and package tours;
- for timeshare, long-term holiday product, resale and exchange contracts;
- which, in accordance with the laws of Member States, are established by a public office-holder who has a statutory obligation to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope;
- for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, and which are physically supplied by a trader on frequent and regular rounds to the consumer’s home, residence or workplace;
- for passenger transport services;
- concluded by means of automatic vending machines or automated commercial premises;
- concluded with telecommunications operators through public payphones for their use or concluded for the use of one single connection by telephone, Internet or fax established by a consumer.
2. Before the conclusion of the distance contract
Before the consumer is bound by a distance contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:
- the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services;
- the identity of the trader, such as his trading name;
- the geographical address at which the trader is established and the trader’s telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently and, where applicable, the geographical address and identity of the trader on whose behalf he is acting;
- if different from the address provided in accordance with point (c), the geographical address of the place of business of the trader, and, where applicable, that of the trader on whose behalf he is acting, where the consumer can address any complaints;
- the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be reasonably calculated in advance, the manner in which the price is to be calculated shall be provided;
- the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate;
- the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the services and, where applicable, the trader’s complaint handling policy;
- where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right, as well as the model withdrawal form;
- where applicable, that the consumer will have to bear the cost of returning the goods in case of withdrawal and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;
- that, if the consumer exercises the right of withdrawal, the consumer shall be liable to pay the trader reasonable costs;
- where a right of withdrawal is not provided, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal;
- a reminder of the existence of a legal guarantee of conformity for goods;
- where applicable, the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees;
- the existence of relevant codes of conduct and how copies of them can be obtained, where applicable;
- the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
- where applicable, the minimum duration of the consumer’s obligations under the contract;
- where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;
- where applicable, the functionality, including applicable technical protection measures, of digital content;
- where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of;
- where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it.
The information must be presented in a simple and easy to understand language. Depending on each distance communication technique, the way the information are provided differs. For example, a website will always give this information in written, but not due to the fact this is compulsory, but because this is the most adequate way to inform the consumer.
If the contract is concluded through a means of distance communication which allows limited space or time to display the information, the trader shall provide, on that particular means prior to the conclusion of such a contract, at least the pre-contractual information regarding the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and, if the contract is of indeterminate duration, the conditions for terminating the contract.
In the case of telephone communications, the identity of the supplier and the commercial purpose of the call shall be made explicitly clear at the beginning of any conversation with the consumer. Where a distance contract is to be concluded by telephone, the trader has to confirm the offer to the consumer who is bound only once he has signed the offer or has sent his written consent. Such confirmations have to be made on a durable medium.
3. Concluding the distance contract
The law establishes that the contract is concluded when the confirmation message reaches the consumer.
The trader shall provide the consumer with the confirmation of the contract concluded, on a durable medium within a reasonable time after the conclusion of the distance contract, and at the latest at the time of the delivery of the goods or before the performance of the service begins. That confirmation shall include all the information referred above unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
4. The withdrawal right
The consumer can withdraw from a distance contract, without penalties, other than those established by law, and without giving any reason.
The period in which the consumer can withdraw from the contract is 14 calendar days and it starts:
- in the case of service contracts, the day of the conclusion of the contract;
- in the case of sales contracts, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the goods or:
- in the case of multiple goods ordered by the consumer in one order and delivered separately, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last good;
- in the case of delivery of a good consisting of multiple lots or pieces, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last lot or piece;
- in the case of contracts for regular delivery of goods during defined period of time, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the first good;
- in the case of contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium, the day of the conclusion of the contract.
When the information on withdrawal rights has not been given on a durable medium, the withdrawal period is of 12 months and starts at the moments specified above.
Before the expiry of the withdrawal period, the consumer shall inform the trader of his decision to withdraw from the contract. For this purpose, the consumer may either:
- use the model withdrawal form; or
- make any other unequivocal statement setting out his decision to withdraw from the contract.
The consumer shall have exercised his right of withdrawal within the withdrawal period if the communication concerning the exercise of the right of withdrawal is sent by the consumer before that period has expired.
The trader may, in addition to the possibilities referred above, give the option to the consumer to electronically fill in and submit either the model withdrawal form or any other unequivocal statement on the trader’s website. In those cases the trader shall communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without delay.
The burden of proof of exercising the right of withdrawal shall be on the consumer.
The trader shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract.
The trader shall carry out the reimbursement using the same means of payment as the consumer used for the initial transaction, unless the consumer has expressly agreed otherwise and provided that the consumer does not incur any fees as a result of such reimbursement.
The trader shall not be required to reimburse the supplementary costs, if the consumer has expressly opted for a type of delivery other than the least expensive type of standard delivery offered by the trader.
Unless the trader has offered to collect the goods himself, with regard to sales contracts, the trader may withhold the reimbursement until he has received the goods back, or until the consumer has supplied evidence of having sent back the goods, whichever is the earliest.
Unless the trader has offered to collect the goods himself, the consumer shall send back the goods or hand them over to the trader or to a person authorised by the trader to receive the goods, without undue delay and in any event not later than 14 days from the day on which he has communicated his decision to withdraw from the contract to the trader. The deadline shall be met if the consumer sends back the goods before the period of 14 days has expired.
The consumer shall only bear the direct cost of returning the goods unless the trader has agreed to bear them or the trader failed to inform the consumer that the consumer has to bear them.
The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. The consumer shall in any event not be liable for diminished value of the goods where the trader has failed to provide notice of the right of withdrawal.
The trader must be able to prove the fact the value of the product has been diminished.
The consumer cannot withdraw from certain contracts:
- service contracts after the service has been fully performed if the performance has begun with the consumer’s prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;
- the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the withdrawal period;
- the supply of goods made to the consumer’s specifications or clearly personalised;
- the supply of goods which are liable to deteriorate or expire rapidly;
- the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
- the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items;
- the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place after 30 days and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;
- contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance. If, on the occasion of such visit, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in carrying out the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods;
- the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery;
- the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;
- contracts concluded at a public auction;
- the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance;
- the supply of digital content which is not supplied on a tangible medium if the performance has begun with the consumer’s prior express consent and his acknowledgment that he thereby loses his right of withdrawal.
5. Performance of the distance contract
The trader must execute the order in maximum 30 days from the moment the consumer sent the order.
The parties can agree for another delivery period.
Where the trader has failed to fulfil his obligation to deliver the goods at the time agreed upon with the consumer or within 30 days, the consumer shall call upon him to make the delivery within an additional period of time appropriate to the circumstances. If the trader fails to deliver the goods within that additional period of time, the consumer shall be entitled to terminate the contract.
Upon termination of the contract, the trader shall, without undue delay, reimburse all sums paid under the contract.
In contracts where the trader dispatches the goods to the consumer, the risk of loss of or damage to the goods shall pass to the consumer when he or a third party indicated by the consumer and other than the carrier has acquired the physical possession of the goods.
However, the risk shall pass to the consumer upon delivery to the carrier if the carrier was commissioned by the consumer to carry the goods and that choice was not offered by the trader, without prejudice to the rights of the consumer against the carrier.