As part of the EU’s Digital Single Market initiative, on 9 December 2015 the European Commission published a draft Directive on the online sale of goods. The text of the draft Directive is here.
The Commission’s proposals, as contained in the draft Directive, on tangible goods are less radical than its initiatives on digital content and portability of content, which were published on the same day and which we discuss here and here. The proposals do not include the much mooted “Home Option”, which would have allowed businesses to rely on consumer laws in their home Member State.
For the UK, there is of course significant overlap with the existing provisions relating to goods in the recently implemented Consumer Rights Act 2015m (CRA). Whilst some of the provisions in the draft Directive are similar to the provision in the CRA, there are also suggested changes to the current regime on distance sales of goods. Points of difference from the status quo include:
Reversal of the burden of proof for two years
In the EU, it is already the case that for a certain period of time a consumer asking for a remedy for a defective product does not have to prove that the defect existed at the time of delivery; it is up to the seller to prove the opposite. Currently, the time period during which the seller has this burden of proof varies by Member State; now it will be extended to two years throughout the EU.
No notification duty
Consumers will not lose their rights if they do not inform the seller of a defect within a certain period of time, as is currently the case in some Member States.
If the seller is unable or fails to repair or replace a defective product, consumers will have the right to terminate the contract and be reimbursed in cases of minor defects.
For second-hand goods purchased online, consumers will now have the possibility of exercising their rights within a two-year period, as is the case with new goods, instead of the one-year period that currently applies in some Member States.
No short term right to reject
While the remedies available are similar to the CRA, there is no short term right to reject as under the CRA. Instead, the consumer moves straight to repair or replacement and can only terminate if repair or replacement is unsuccessful.
What happens next?
The draft Directive now enters the EU consultative legislative process. Once the text is consulted upon and agreed between the Parliament, Council and Commission – which is likely to be a lengthy process – the Directive will then need to be implemented into the national law of each Member State. So implementation is some years away, and of course the text of the draft Directive is likely to change, possibly substantially, as it progress through the relevant EU institutions.
The draft Directive (formally titled “Directive of the European Council and Parliament on certain aspects concerning contracts for the online and other distance sales of goods”) is part of the Commission’s Digital Single Market initiative, on which we have a dedicated hub here.