The New EU Proposal for Harmonised Rules for the Online Sales of Tangible Goods (COM (2015) 635): Conformity, Lack of Conformity and Remedies

Abstract

This paper was written upon request of the JURI-Committee of the European Parliament and deals with the European Commission's Proposal for a Directive on Contracts for the Online and other Distance Sales of Goods of 9 December 2015 (COM (2015) 635). The paper questions whether the proposed aim of reducing complexity of law is achieved. Its main findings are the following:

-- it must be doubted whether the current proposals will contribute to making the regulatory framework for consumer sales less complicated and costly. The result will rather be that an extra layer of fully harmonised rules for some topics will be added to the existing framework.

-- The proposals contain many clarifications of rights that were already part of the Consumer Sales Directive. These clarifications are highly useful, but should also become applicable to face-to-face sales under the current Consumer Sales Directive.

-- The two proposals adopt different standards for conformity. This is unfortunate. In addition, the proposed standards seem too much geared towards the subjective agreement of the parties instead of towards a more objective conformity standard.

-- Several of the proposed rules will lead to a higher level of protection of consumers in distance contracts. This is evident from the extension of the reversal of the burden of proof of a lack of conformity to two years, the possibility to terminate in case of minor defects and the abolition of the Member States’ discretion to oblige the consumer to notify the seller about a lack of conformity within two months after detecting the defect.

-- Turning the rights provided by the existing CSD into a regime of maximum harmonisation for distance and online sales will contribute to an overall higher level of protection in the EU as a whole, but will naturally oblige some Member States to reduce their existing protection. The consumer can no longer have a free choice of remedies and a direct right to terminate the contract will no longer be allowed. Consumers’ claims in case the defect manifests itself after more than two years in a case in which the consumer could expect the goods to have a longer durability are also no longer possible. These are unfortunate consequences of the Proposal.