Distance Selling and E Commerce directives

John ordered a number of small items from e-Toys4U.hk for his child’s birthday. The items included a games console together with several games, a tricycle, music CDs, an e-book (compatible with his e-book reader), an iPod engraved with his child's name and a selection box of chocolates. Some items arrived a month before his child's birthday. Other items did not arrive at all. John doesn't have a telephone number to contact e-Toys4U.hk, and it is taking a few days to get a response to e-mails which he has sent demanding redress. Does John have any protection under existing rules, particularly those concerning distance contracts and/or the provision of information society services, and are there any proposals for this position to change in the future?

With the advent of the Internet came electronic transactions (E – contracts) which made it possible for more people to conclude transactions on – line rather than in store. The European Union being proactive had to create a legal framework that would regulate the buying and selling of goods and services at a distance. Directive 1997/7/EC [1] (Distance Selling Directive) was one such regulation to address the growing trend by harmonizing laws aimed at protecting consumers within the Member states thereby creating confidence and certainty in distance contracts. The directive set minimum harmonization thresholds for Member states to follow in transposing the directive into National law. The E-commerce Directive 2000/31/EC [2] was also adopted to provide a legal framework for the provision of Information Society Services [3] within the European Union.

The Distance Selling and E- Commerce directives have no doubt increased confidence and certainty in electronic transactions in domestic markets; it is however a fact that the above directives have not achieved their full potential in cross border transactions. [4] The minimum harmonization principle as well as some onerous provisions adopted by these directives has been blamed for the slow take off cross border transactions.

This Essay is going to look at the issue of the consumer protection in cross border distance sale and e- commerce. It will highlight the remedies available to the consumer ‘John’ under the existing Legal framework. It will also look into the reasons for the slow take off of cross border transactions within the European Union.

Lastly, this essay will evaluate the proposals in the new framework.

CONSUMER PROTECTION UNDER THE DISTANCE SELLING DIRECTIVE 97/7/EC

Directive 97/7/EC applicable law consumer distance contracts within EU Member State as well as European Economic Area (EEA). The directive aims at ensuring a high level of protection for consumers within the EU by providing certain rights and obligations between a supplier and consumer when transacting at a distance using “means of distance communication." [5] It provides the following the rights:

The supplier is bound to provide comprehensive information as provided in Article 4 of the Directive before the purchase (Prior Information);

The supplier has to confirm the prior information provided (Art 4) in a durable medium (such as written confirmation) as provided Art 5 of directive;

The supplier shall inform the consumer of his right to cancel the contract within a minimum of 7 working days without giving any reason and without penalty, except the cost of returning the goods (right of withdrawal) Art 6;

The consumer is entitled to a refund within 30 days of cancellation in the event the consumer cancels the contract; Art 6(2)

The supplier shall perform the service or deliver the goods within 30 days from the day the consumer placed his order or where the goods or service ordered is not available inform the consumer of any alternative at the same price or a refund as soon as possible or within 30 days Art 7;

Non validity of any waiver of the rights and obligations provided for under the directive, whether instigated by the consumer or the supplier. Art 12

The prior information requirement is the basis for the validity of a distance contract and must be complied with by a supplier.

Under the Directive the following prior information shall be furnished by the supplier to the consumer before conclusion and confirmed in durable medium [6] stating: “(a) The suppliers identity and address, where payment is made in advance (b) characteristics/nature of the goods or services sought by the consumer; (c) price of the goods or services including of taxes; (d) cost of delivery; (e) the arrangements for payment, delivery or performance;

(f) a right of withdrawal within at least 7 days without any reason adduced, subject to cases referred to in Article 6 (3) failing which the ‘right of withdrawal’ would be 3 months from the date the order was made; [7] 

(g) the cost of using the means of distance communication, where it is calculated other than at the basic rate; (h) the period for which the offer or the price remains valid;

(i) where appropriate, the minimum duration of the contract in the case of contracts for the supply of products or services to be performed permanently or recurrently." [8] (97/7/EC)

It is clear from the above stated that requirement of Article 4( 1) (a) (e) and (f), with regard to the suppliers ‘address’ ‘performance ‘ [9] and a ‘right of withdrawal’ was not complied with. Also the provision of Art 5 (1) which mandates the supplier to confirm the prior information in accordance with Art 4 in a durable medium (written confirmation) was not complied with.

It can rightly be deduced that if the requirement (Art 5(1)) was met John would not be having difficulty contacting the supplier seeking redress, because the ‘prior information’ in writing or a durable medium would have availed him of the ‘geographic address’ of the supplier , time for performance of the contract and his right of withdrawal.

With regard to the goods that were not delivered Art. 7( 1)(97/7/EC) provides that unless expressly agreed by the parties the supplier shall execute the order within a maximum of 30 days from the day the order was made; Art 7(2)(97/7/EC) provides that if the goods or service ordered is not available the supplier shall promptly inform the consumer of the unavailability of the good or service and shall refund payment as soon as possible or within 30 days; Art 7(3)(97/7/EC) further provides that an equivalent goods or service of the same quality and price may be supplied to the consumer if it was ‘agreed’ prior to contract or in the contract. The supplier is liable for cost of return under 7(3) in case where consumer exercises his right of withdrawal.

It is my view that John was in no time availed of the above information stated in Art 7(2) of the directive or even an equivalent as provided in 7 (3).

However in this case the contract is part performed and the issue arising is for non delivery of the some of the goods ordered. It is necessary to list the items that John purchased that fall under this directive.

Games Console

A tricycle

Music CD’s

An iPod

Box of Chocolates

CONSUMER RIGHTS UNDER THE E– COMMERCE DIRECTIVE 2000/31/EC

The E – Commerce directive (2000/31/EC) (‘the directive’’) applies to Information Society Services.

Art 2(a) of the directive makes reference to the definition of "information society services": within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; which provides defines an ‘ISS’ as

‘‘any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service;’’(Art. 1(2)98/48/EC)

The e – book rightly falls under ‘a service normally provided for remuneration, at a distance, by means of electronic equipment’ John’s computer being the ‘equipment’ that would receive the e – book and the service is provided at John’s(individual) request. We shall now proceed to know if e-Toys4U.hk meets the requirements for provision of an ISS.

Art. 5 (1) of the E- Commerce directive provides general information requirements that an ISS provider must provide to recipients’ of the service prior to the conclusion of the contract: An ISS “provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, information: (a) the name of the service provider;

(b) the geographic address at which the service provider is established;

(c) the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner;"(Art. 5(1)(a – c )2000/31/EC)

In John’s case a geographic address was not provided pursuant to Art. 5 (1) (b) an e – mail address was provided pursuant to Art. 5(1) (c) of the directive.

However in the German case of Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV V. deutsche internet versicherung AG [10] (‘’DIV Case’’) the courts held that

The provision of only an e – mail address as a sole means of contact does not comply with the provision of Art. 5(1) (c) of the directive

“…….in addition to its e - mail address other information which allows the service provider to be contacted rapidly….." [11] [Emphasis supplied]

In essence the supplier had to furnish other means of contact not necessarily a telephone number, some order additional information. The court’ was however of the view that web form if replied in 30 or 60 minutes will make for direct and effective communication.

The effect of the above decision is that the e – mail address of etoys4U.hk does not fully satisfy the provisions of Art. 5 (1) (c), because the intention of the legislature is for the ISS provider to ‘provide details’ ‘including’ [12] its e – mail address to achieve the purpose of rapid communication in a direct and effective manner.

In the light of the decision in the DIV case ‘e-toys 4U.hk’ does not fully satisfy the provision of Art 5(1) (c) as ‘other details’ required for a “rapid, direct and effective communication" is not provided, this is evident in the fact that they are ‘taking a few days’ to respond to John’s e – mail seeking redress. The purpose of Art 5 (1) (c) is the provision of rapid, direct and effective communication. The courts explained that the intention of the legislature is not to entirely rule out other forms of communication by specifying ‘e – mail ‘ where a recipient cannot access a network/ internet other offline means of communication can suffice either post or telephone. [13] 

In addition to information to be provided under Art 5 of the directive Art 10 of the directive provides further information that the supplier shall except where expressly agreed otherwise ;provide information in clearly, comprehensibly and unambiguously and prior to the order being placed by the recipient of the service ; ‘10 (1)(a) different technical steps to be taken for the conclusion of the contract (b)whether or not the service will be filed by the service provider and whether it would be accessible (c) technical steps to identify and correct input errors prior to placing the order (d) the languages offered; ‘

Art. 11 provides for an acknowledgement of the order without ‘undue delay’ by electronic means the acknowledgement deemed to have reached the recipient of service when he actually accesses it. In the instant case there is no statement to indicate that he was in fact provided with the information regarding the different technical steps he would take to conclude the contract or access the service requested , if that information ‘John’ would be better informed .

It can also be inferred that he was not provided information on how to identify and resolve input errors nor was language requirements provided.

The suppliers ‘e-toys4U.hk’ has not fulfilled the statutory duty to provide the requisite information for the conclusion of contract in accordance with the directive. There is also no evidence that an acknowledgment was sent to John in accordance with Art. 11. The basis of acknowledgement is to put the recipient on notice that his order has been accepted along with the terms and conditions.

REMEDIES AVAILABLE UNDER THE DIRECTIVES (97/7/EC & 2000/31/EC)

Under the Distance Selling Directive the consumer John can exercise his right of withdrawal pursuant to Article 6 of the directive and he is entitled to a refund of the payment price for the following as soon as possible or within 30 days he shall only bear the cost of return of the goods.

He can exercise his right of withdrawal for the

The Games Console

The Tricycle

However with regard to the music CD’s and games, he can only exercise his right of withdrawal if the goods have not been ‘unsealed.’

By virtue of Art. 6(3) of the directive once audio or video recordings or computer software are ‘unsealed’ by the consumer; he is precluded from exercising his right of withdrawal. It is however noteworthy that most items such as audio or video recordings or computer software in accordance to industry standards are ‘shrink – wrapped’ [14] on delivery, hence the consumer cannot access them unless they are unsealed.

With regard to the customized ‘iPod’ which has his sons name engraved on it, it also falls under the Art 6 (3) of the directive because it is made with a specification or is personalized with the engraving of the name of John’s son.

The box of chocolate also falls under Art 6(3) of the directive because it is liable to deteriorate or expire rapidly.

Etoys4U.hk is to execute the order/ deliver the goods or service within a maximum of 30 days from when the order was made, since the goods have not been fully delivered pursuant to Art 7(1) of the directive and no equivalent of the same quality and price offered him in a clear and comprehensible manner in the contract (Art. 7 (2), the supplier shall be liable to pay for the cost of return of the goods pursuant to Art. 7 (3) upon the consumer ‘John’ exercising his right of withdrawal.

Since there is no prior information providing for 7 days ‘cooling off period’ [15] for the consumer to exercise his right of withdrawal pursuant Art .6 John can withdraw from the contract within a period of 3 months depending on the EU member state he is domiciled in and any credit agreement cancelled without penalty.(Art 6(4))

Art.11 provides ‘John’ with judicial or administrative redress thus he can approach the courts in his country’s court or an administrative body responsible for consumer protection, to file necessary complaints depending on the procedure in his country.

Art. 12 Non validity of any waiver of the rights and obligations provided for under the directive, whether instigated by the consumer or the supplier. With regard to the choice of law the consumer shall be protected by the provisions of the directive, no act to waive such a right by either the consumer or supplier would suffice.

Art.17 for the establishment of a complaints system since litigation is rather onerous, owing to the small value of the transaction if the consumer’ member state has a consumer complaints system he can use it to press his claims.

The supplier is in clear breach of Articles 4, 5, 6 & 11 of the directive.

Under the E- Commerce directive (2000/31/EC) the consumer can maintain an action for a breach of duty to provide information prior to contract (Art 5) and did he state the different technical steps in concluding the contract or an acknowledgement of receipt of the information in when accessed or, the supplier is in breach of Art 11 [16] since the ISS provider did not provide him with requisite information prior to the conclusion of the contract. The requirements are important as provided in Articles. 5, 10 & 11 of the EC directive.

On the issue of exercising the right of withdrawal we refer to Recital 11 of the directive which provides that the E – commerce directive is subject to the protection in 97/7/EC with regards right of withdrawal under Art 6 97/7EC.

The e – book reader that John purchased, if he was able to access it, then it he would be precluded by Art 6(3) since by reason of its nature it cannot be returned. Digital products can easily be copied hence it occasion a loss or hardship to the supplier.

The directive provides for out of court settlement and court action in Articles 17 & 18 respectively.

The consumer can lay complaints through a consumer advocacy bureau such as the European Consumer Centres Network (ECC-Net) [17] or institute an action in court or find.

Art. 12 (2) of the 97/7/EC guarantee’ s the consumer the same protection provided in the Europe even when the country is a not member of the European Union but has a close connection with the territory of one or more EU member states. It is however worthy of note that the country code top-level domain (ccTLD or Internet TLD) ‘.hk’ [18] is for the South East Asian country, Hong Kong. ‘’E-toys4U.hk’’ if, based in Hong Kong raises issues of Jurisdiction/enforcement and applicable law which most buyers online do not want get involved with.

However, a consumer in Europe’s habitual domicile by virtue of Article 15(1) (c) of the Brussels I Regulation (44/2001) [19] shall have Jurisdiction to entertain suit a filed against the trader who ‘directs his activities’ towards the consumers country or to several other countries including country and the contract falls within the scope of those activities, similarly the applicable law shall be that of the consumer’s habitual domicile if it can be found that the trader also ‘directs his activities’ towards that country or several other countries including that country as provided for in Art. 6 (1) (c) of the Rome I Regulation EC (593/2008). [20] 

REASONS FOR THE SLOW TAKE OFF OF CROSS BORDER E - Commerce IN THE EU

Consumer Apprehension

While domestic e – Commerce is growing in leaps and bounds the same cannot be said about cross border e – Commerce. Most consumers in the EU are apprehensive of cross border e – Commerce their fears range from parting with their credit card details to an unknown merchant, language and cultural barrier, fraud (confidence in the e - merchant), delivery and performance, after sales service, returns and refund policy and a right of redress in often small value transactions (Jurisdiction/applicable law). [21] 

The issue of redress is the major constraint of cross border e – Commerce in the EU because in most cases the e – merchants do not deliver the goods requested. According to the ECC - Net [22] ‘73 % of the complaints that was received in 2008 was for non delivery’ [23] of the goods or services ordered, while 15 % of the complaints was for delayed delivery and 7% was for partial delivery [24] which is similar to the case of ‘John’ and e- toys4U.hk. This is due largely divergent consumer protection regimes in different Member states and non compliance of e – merchants with the directives.

Fragmentation of Consumer Protection in National Laws

The directives on consumer protection set minimum thresholds which Member states can adopt more stringent measures in the transposition into National Law. This minimum harmonization is majorly responsible as consumers are not certain of the redress mechanism when trading cross border, the fragmentation across Europe is evident in different regimes in member states. For instance the ‘right of withdrawal’ where the supplier fails to supply prior information has been transposed differently in the Member States in the UK 3 months while Sweden is 12months. The fragmentation makes it hard for consumers to understand their position in cross border e - commerce and vitiates the out of court settlement provisions in the directives. Mediation in this case will be onerous as the parties are not even aware of what is obtainable protection.

This fragmentation has left many consumers to buy at a distance from within their country as the right of redress is known to them particularly in small value transactions where the consumer is not in a position to undertake costly litigation in another Member state let alone a country outside of the EU or EEA. The proposal issue addresses the issue.

PROPOSAL’S IN THE NEW CONSUMER PROTECTION DIRECTIVE

The proposal is aimed at bridging the gaps in the rules by providing common rules and removing inconsistency owing to the fragmented transposition of the past Directives. A uniform set of consumer protection laws that will be applicable in all Member states; that is full harmonization (Uniformity) as against the minimum harmonization which sets a minimum threshold wherein Member states could make more stringent provisions.

It has common definitions for terms amongst member states thus ‘consumer’ will have the same meaning across all the member states.

It provides core information requirements to be furnished by traders prior to conclusion of all consumer contracts as well as an information obligation on intermediaries.

It has specific information requirements for distance and off premises contracts, proper regulation of the right of withdrawal by stipulating a certain period, how it can be exercised and effects of a withdrawal in addition it provides a withdrawal form in Annex 1(b). Merchants can also have a web form for withdrawals patterned after the standard form in Annex 1(b)

Under sale of consumer goods and associated guarantees it maintains that in a case where goods do not conform to the contract the trader is liable to the consumer for a period of two years. It also clarifies passing of risk, risk loss, or damage of goods is only transferred when the consumer or a third person appointed by him acquires material possession of the goods in question.

It defines unfair terms and provides two lists of unfair terms in Annex II& Annex III i.e a list of unfair terms and a list of terms ‘deemed’ unfair respectively, unless the contrary is proven by the trader, the list is applicable in all member states.

The provisions are without prejudice to Rome I applicable law in contractual obligations.

A new clearer definition of ‘distance contract’’ incorporating modern means of distance communication unlike the previous directive, it defines distance contracts as: “any contract sales and services are concluded using exclusively one or more means of distance communication (mail order, Internet, telephone or fax)" [25] in contrast to the terms used in the old directive ‘‘ an organized distance sales or service-provision scheme run by the supplier, who, for the purpose of the contract," [26] 

A wide construction of business premises to include market stalls, fairs stands even when used on a temporary basis, but hotels conferences centre’s should not be considered as such when let for a short time only by the trader where he is not established.

Sales contract any contract for sale of goods which includes mixed purpose contract (goods and services )

Art 4 provides for full harmonization, Member states cannot derogate from the provisions varying set limits on a particular law diverging provisions from those set out in the directive

Art 6 effect of not furnishing the prior information under Art 5, this provision deals with ‘’hidden charges’’ that most often crops up when we proceed to check out

Under Art 14 Member state shall not add any other formal requirements to the standard withdrawal form provided in Annex and acknowledgment of withdrawal is required from the trader by e- mail;

Art 16 empowers a trader to withhold a refund pending his receipt of the goods or when the consumer supplies an evidence of the dispatch of the goods.

Art. 17 creates an obligation, that the consumer shall return the goods before the expiration of the withdrawal period unless the trader has offered to collect the goods, only cost of returning the goods is borne by the consumer except where the trader agrees to bear the cost.

The consumer liable is for diminished value for his handling of the good, he shall not be liable if the trader did not provide for a right of withdrawal, for service contracts, consumer shall not bear any cost for services performed, in full or in part during the withdrawal period. (Art. 17) If the trader in the Pia Messner Case [27] had furnished information the case would have been decided differently if this provision was in force then.

Art 18 upon exercise of right of withdrawal any ancillary contracts shall be terminated.

A standard 14 day withdrawal period where the trader informs the consumer of his right, however where a trader fails to inform the consumer the period for withdrawal is set at 3 months. The time is fixed which member no states can derogate from

CONCLUSION

John the aggrieved consumer will benefit from the provisions of the Directives (97/7/EC) on distance selling; (2000/31/EC) on e – Commerce; Rome I regulation (593/2008) provides the applicable law which is that of the EU member state John is domiciled in the absence of any prior agreement between the parties and the Brussels I regulation (44/2001) provides for Jurisdiction and enforcement.

The EU’s paternalistic approach to consumer protection is very commendable protecting its citizens from unethical business practices. However, it is my humble opinion that ECC – Net should educate consumers across the EU on the dangers of transacting with off – shore on – line merchants especially for low value transactions. Alternatively a system of accreditation can be set up for off shore businesses interested in ‘‘directing their activities’’ to EU member states, the businesses shall undertake to adhere to EU codes. There is also a need for the ECC – Net With regard to Art. 6 (3) on exception of digital goods (DVD’s CDs Computer Software, e – books) from the list items that cannot be returned in exercise of consumers right of withdrawal. Owing to the volume and value of such transactions I suggest that where there is for instance a failed download or defect the consumer should be offered an alternative. The UK from this year has set up complaints register to address digital down load scams and other digital goods. [28] 

The European Commission’s effort in merging consumer protection legislation within the European Union is no doubt going to improve cross border e – commerce which has hitherto performed below its potential this is due largely to fragmentation of consumer protection legislation, lack of consumer confidence in cross border e – commerce and language and cultural barrier. Consumer’s would prefer to buy at distance on – line within their own country as cases of partial delivery, delayed delivery and most often non delivery of goods or service by the trader which is a major problem of cross border e – commerce [29] can be effectively handled in a consumers country in relatively small value transactions.

The minimum harmonization principle is an ‘utter fiasco’ as it makes for the fragmentation in consumer protection legislation across the member states. The attainment of the ‘single market’ is indeed a mirage as domestic e – commerce is burgeoning [30] while cross border e – commerce is performing below expectation. Goods and services cannot move freely within the internal market as envisaged since consumers and businesses are apprehensive and uncertain of what rights and protection another member state would offer. The several consumer protection directives, different definition of terms, different legal regimes, as countries vary so does the protections vary. Big business responded by setting up shop in other member states while small and medium businesses remained within their National boundaries because of the high cost of complying with different national laws. The consumer was at gulf in seeking redress in small value transactions. Although some of the directives provided for out of court settlement the avenue cannot be fully explored because of fragmentation of national laws.

Full harmonization is however criticized by some scholars who opine that even though full harmonization looks good its practical effect might never be achieved, Jans M. Smits is of the view that “maximum harmonization can be useful in some specific areas. However, the undifferentiated approach of the Commission to fully harmonize the core areas of consumer law cannot be accepted." [31] Twigg-Flesner &Metcalfe: 2009 are of the view that

“A better solution at this stage might have been to propose adoption of the pCRD as a minimum harmonization measure to achieve a short-term improvement to the acquis, but then to spend more time considering whether a different approach – such as a cross-border-only optional instrument in an EU regulation – might not better serve consumers and traders seeking to utilize the internal market." [32] 

I am of the humble view that with full harmonization a consumer in the UK is certain that his rights are the same if he buys a product on – line at a distance from Germany or another member state. There is greater certainty for the consumer and the trader across border. Businesses will have a reduction in compliance cost [33] they will now be able to trade across the 27 EU member states using the same terms and conditions. The gap between the domestic cross border transaction will be closed internal market will gain the necessary impetus to actually be the single market envisaged by the Union. Full harmonization is uniformity, predictability and certainty towards the Single Market.