On 8.10.2008, the Commission of the European Communities adopted the proposal for a Directive of the European Parliament and of the Council on consumer rights. Greater standardisation of consumer law is intended to strengthen consumer confidence in the internal market and promote the willingness of businesses to engage in cross-border trade.
"I welcome the goal of making European consumer law better and more uniform. However, this cannot be achieved with the proposal for a directive submitted by the Commission. The proposal does not lead to greater unification and coherence of consumer law and thus not to more legal certainty for consumers and businesses. Therefore, I will work intensively and sustainably during the negotiations in Brussels to ensure that the Commission's proposal is improved in the sense of high and uniform European standards and that the states can provide for supplementary regulations," explained Federal Minister of Justice Brigitte Zypries.
In the Commission's new proposal for a directive, four directives already in force in the field of consumer protection are revised and merged into one dossier (so-called "Doorstep Selling Directive" 85/577/EEC, so-called " Clauses Directive" 93/13/EEC, so-called "Distance Selling Directive" 97/77/EC and so-called "Consumer Sales Directive" 1999/44/EC). However, the four directives only cover a small part of the existing European consumer law. Consumers and businesses would only really benefit if the entire consumer protection law were harmonised as far as possible. To this end, all existing consumer directives should, as far as possible, contain the same provisions, e.g. rights of withdrawal for consumers and information obligations for businesses.
According to the Commission's will, uniform consumer law is to be achieved in particular through full harmonisation. This does not only mean the same minimum standard in all Member States. Fully harmonised regulations also remove the possibility for the Member States to maintain or introduce more far-reaching regulations for the protection of consumers.
"For Germany, the full harmonisation planned by the Commission would have the concrete consequence that tried and tested regulations of German law that protect consumers would have to be changed or even repealed. For example, our right of withdrawal for doorstep and distance sales (e.g. internet) would be restricted to the detriment of consumers. It would also be more difficult for consumers to assert their rights in the event of defects in a purchase contract," Zypries emphasised.
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In Germany, the consumer has an unlimited right of withdrawal in doorstep and distance selling transactions if the consumer has not been properly informed of his right of withdrawal. According to the proposal for a directive, the right of withdrawal should expire mandatorily after three months, as soon as the trader has completely fulfilled his contractual obligations, e.g. the ordered goods have been properly delivered.
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- For the assertion of warranty rights arising from a sales contract - for example, in the case of defective goods - the proposal for a directive would introduce an obligation for the consumer to give notice of defects, which has not existed in German law up to now. Consumers should only be able to effectively assert their warranty rights if they notify the seller of a defect within two months of discovering it. If he does not give notice in time, he will lose his warranty rights.
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In Germany, the consumer has an unlimited right of withdrawal in doorstep and distance selling transactions if the consumer has not been properly informed of his right of withdrawal. According to the proposal for a directive, the right of withdrawal should expire mandatorily after three months, as soon as the trader has completely fulfilled his contractual obligations, e.g. the ordered goods have been properly delivered.
- For the assertion of warranty rights arising from a sales contract - for example, in the case of defective goods - the proposal for a directive would introduce an obligation for the consumer to give notice of defects, which has not existed in German law up to now. Consumers should only be able to effectively assert their warranty rights if they notify the seller of a defect within two months of discovering it. If he does not give notice in time, he will lose his warranty rights.
"In the case of full harmonisation, the Member States will be deprived of the possibility to introduce additional consumer-protecting regulations desired by the national states. We would no longer be able to react quickly and flexibly to new national developments and adequately protect consumers. For example, the extension of the right of withdrawal for contracts concluded by telephone, as provided for in the draft law to combat unauthorised telephone advertising, would no longer be permissible. That would be very bad. I will therefore lobby in Brussels for a better and more coherent European consumer law that continues to leave the Member States the necessary scope for action in this area. I am confident that this will be achieved together with our European partners," said Zypries.
Source: Press release of the Press and Public Relations Department of the Federal Ministry of Justice of 8 October 2008, Responsible: Eva Schmierer; Editors: Dr. Henning Plöger, Dr. Isabel Jahn, Johannes Ferguson, Ulrich Staudigl, Mohrenstr. 37, 10117 Berlin, Phone 01888 580-9030, Fax 01888 580-9046, presse@bmj.bund.de
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
