Abstract
Chapter 3 is concerned with withdrawal rules. Another additional measure provided in the case of distance selling is a particular right of withdrawal, by virtue of which the consumer is entitled to extinguish the contract within a relatively short period. The consumer does not have to give any reason for withdrawing from the contract and no liability for non-performance arises for doing so. It aims to allow the consumer time for further consideration and to obtain information. The Consumer Rights Directive contains some rules on a particular right of withdrawal for distance and off-premises contracts (articles 9–16). Some aspects of the right of withdrawal as provided in this regulation, however, are controversial for tourism, e.g. the cooling-off period, or the effects of withdrawal. For that reason, it is examined whether there is room for a contractual right to withdraw, i.e. a cancellation clause, to be used by the tourism industry.
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Notes
- 1.
Most countries introduced a cooling-off period for doorstep selling in the 1960s and 1970s, some time before the right of withdrawal first emerged at European level with Directive 85/577/EEC of the Council of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises [1985] OJ L 372/31 (Doorstep Selling Directive).
- 2.
Vide ECJ Case C-423/97 Travel-Vac SL v Sanchis [1999] ECR I-2195, regarding timeshare at the doorstep.
- 3.
See Micklitz et al. (2010), p. 243.
- 4.
See art III.-1:109 of the Draft Common Frame of Reference comprising Principles, Definitions and Model Rules of European Private Law (DCFR).
- 5.
Art IV.C.-2:111(1) DCFR.
- 6.
With regard to art IV.C-2:111(1) DCFR, see Von Bar et al. (2009), pp. 1697–1698.
- 7.
It is basically the recognition of the fact that the consumer may no longer want the service to be performed, even though the service provider is adequately performing the obligations under the contract. Regarding art IV.C-2:111(1) DCFR, ibid, p. 1696.
- 8.
Ibid, pp. 346–347.
- 9.
See Sect. 1.2.1.
- 10.
Although there is an important difference between mandatory information rules and mandatory substantive rules, the right of withdrawal should be interpreted basically as an information right. In that sense, withdrawal rights would have a rather similar function to many pre-contractual EC law instruments. See Schulte-Nölke (2007), p. 337.
- 11.
Thus, Micklitz et al. (2010), p. 239.
- 12.
The emphasis on the information mechanism together with valorisation of the right to withdrawal would be a tool of ‘competitive contract law’ founded on the belief that a cooling-off period is an effective form of protection for the consumer. See Somma (2010), p. 16. In Spanish law, see Rebolledo Varela (2010), p. 17.
- 13.
See Micklitz et al. (2010), p. 240.
- 14.
The need for such protection differs from cases of doorstep selling and timeshare, long-term holiday products, resale and exchange contracts, where the aim is to protect the consumer from aggressive sales techniques.
- 15.
Hall (2007), pp. 684–685.
- 16.
In general, see Schulze (2010), p. 13.
- 17.
Ibid, p. 14.
- 18.
Arts 5 and 7 of the Doorstep Selling Directive.
- 19.
Art 35 of the Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance [2002] OJ L 345/1 (Life Assurance Directive).
- 20.
Arts 6–8 of the Directive 2008/122/EC of the European Parliament and the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange contracts [2009] OJ L 33/10 (new Timeshare Directive).
- 21.
Art 6 of the Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of Consumers in respect of distance Contracts [1997] OJ L 144/19 (Distance Selling Directive).
- 22.
Arts 6 and 7 of the Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC [2002] OJ L 271/16 (Distance Marketing of Financial Services Directive).
- 23.
Arts 14 and 15 of the Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC [2008] OJ L 133/66 (Consumer Credit Directive).
- 24.
Schulte-Nölke (2007), p. 336.
- 25.
See Sect. 1.2.1.
- 26.
See, for example, Canigou Cycling (2011).
- 27.
Art 5 of the Distance Selling Directive.
- 28.
See, for example, arts 68–79 of Spanish Royal Legislative Decree 1/2007 of 16 November 2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias (Consumer Protection Regulations). For a broader perspective, see Micklitz et al. (2010), p. 241.
- 29.
Arts 101, 102 and 160 of Spanish Royal Legislative Decree 1/2007 of 16 November 2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias.
- 30.
Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours [1990] OJ L 158/59 (Package Travel Directive).
- 31.
See Von Bar et al. (2009), p. 349.
- 32.
Arts 6 and art 12(1) of the Distance Marketing of Financial Services Directive.
- 33.
For these details, see Von Bar et al. (2009), p. 349.
- 34.
Default rules can be mandatory and derogative and, hence, the preferred criteria to be used should not be between default and mandatory rules, but between rules which can be derogated from (dispositive or derogative) and those which cannot (mandatory). See Watt and Sefton-Green (2010), pp. 211–213.
- 35.
See art 79 of Spanish Royal Legislative Decree 1/2007 of 16 November 2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias. On the contrary, in Spanish law Rebolledo Varela (2010), p. 55, considered some aspects, i.e. no penalties, formal requirements, minimum withdrawal period, restitution to the consumer, to be mandatory for a contractual right of withdrawal.
- 36.
This has made the application of the provisions more difficult and may lead to inconsistencies. See Schulze (2010), pp. 14–15.
- 37.
Green paper on the review of the consumer acquis, COM (2006) 744 final 12, pp. 20–22.
- 38.
[2011] OJ L 304/64. Recital (5) of the Consumer Rights Directive. Previously, recital (5) of the proposal from the Commission of 8 October 2008 for a Directive on consumer rights, COM(2008) 614 (pCRD), stated that the full harmonisation of the right of withdrawal in distance contracts would contribute to the better functioning of the business—to—consumer internal market: see European Commission (2008). Significantly, recital (5) pCRD as amended by the European Parliament and the Council on 24 March 2011 (COD/2008/0196, DOC A7-38/2011) established that ‘the full harmonisation of certain aspects of consumer information and of the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and better functioning of the business—to—consumer internal marked’ [emphasis added].http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2011-0116. Accessed 30 April 2011.
- 39.
See European Commission (2010).
- 40.
Regarding the pCRD of 8 October 2008, see Redaction Committee of the Acquis Group (2010), p. 174.
- 41.
Regarding the pCRD of 8 October 2008, see Schulze (2010), p. 16.
- 42.
Art 3(3), points (g), (h) and (k), and art 16, point (l), of the Consumer Rights Directive. Section 1.2.1.
- 43.
Art II.-I:102(2) DCFR.
- 44.
Art II.-5:101(2) DCFR.
- 45.
Arts II.-5:101 ff. DCFR.
- 46.
See Von Bar et al. (2009), pp. 345–346.
- 47.
Ibid.
- 48.
Art II.-5:202 DCFR.
- 49.
See Von Bar et al. (2009), p. 348.
- 50.
- 51.
See Watt and Sefton-Green (2010), pp. 213–215 and 218–219.
- 52.
In regard to the complexity of party choice as for the DCFR, ibid, pp. 206–210.
- 53.
Recital (5) of the Consumer Rights Directive.
- 54.
This is not to mention the difficulties related to the role reserved for mandatory general provisions regulating the right of withdrawal provided in some countries. Regarding the relationship between general rules on the right of withdrawal, see arts 68–79 of Spanish Royal Legislative Decree 1/2007 of 16 November 2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias; and concerning the rules on a particular right of withdrawal for package holidays, see art 160 of this regulation. For comment, Bech Serrat (2008), pp. 69–78.
- 55.
Art 6(1) of the Distance Selling Distance.
- 56.
Art 5 of the Distance Selling Distance.
- 57.
With regard to this, some authors argued whether the traditional split between the Doorstep Selling Directive and the Distance Selling Directive was still appropriate. Schulze (2010), p. 16.
- 58.
By contrast, according to art 6(1) of the Distance Contracts Directive, a consumer was awarded a period of at least 7 working days in which to withdraw from the contract.
- 59.
Regarding the pCRD, see Loos (2007), pp. 32–33.
- 60.
See art 5(2) of the previous Timeshare Directive and art 7 of the new Timeshare Directive.
- 61.
Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation [2004] OJ L 46/1 (Air Passenger’s Rights Regulation (EC) No. 261/2004).
- 62.
Micklitz et al. (2010), p. 240.
- 63.
Instead of contradiction the principle pacta sunt servanda, the right of withdrawal, in a new context, gives the principle an additional justification and confirms its role as a pillar of private law in a free economy. Ibid.
- 64.
Art 6(1) of the Distance Selling Directive.
- 65.
Art 9(1) of the Consumer Rights Directive.
- 66.
Micklitz et al. (2010), p. 250.
- 67.
However, see art 14(4) of the Consumer Rights Directive.
- 68.
Micklitz et al. (2010), p. 263.
- 69.
Art 6(3), first indent, of the Distance Selling Directive.
- 70.
Principles of European Law (PEL) (2007). At this point, art 6:109 of the Principles of European Contract Law (PECL) regulates cancellation of a contract for an indefinite period by solely providing that this contract may be ended by either party by giving notice of reasonable length. Lando and Beale (2000), pp. 316–317. Obviously, these rules will not be applicable to a contract concluded for the provision of services on a specific date or within a specific period.
- 71.
Art IV.C.–2:111(1) DCFR.
- 72.
Art II.-5:201(3), point (b), DCFR.
- 73.
Similarly, in the United Kingdom, the answer to the question ‘[c]an consumers cancel an order in any circumstances?’ of point 3.38 of the document Office of Fair Trading (OFT) (2006), was the following: ‘[u]nless you have agreed that they can, your consumers cannot cancel if the order is for: a) services where you have had the consumer’s agreement to start the service before the end of the usual cancellation period and you have provided the consumer with the required written information before you start the service, including information that the cancellation rights will end as soon as you start the service’.
- 74.
In such a case the withdrawal period is extended under art II.-3:109(1) and art II.-5:103 DCFR. See Von Bar et al. (2009), pp. 391–392.
- 75.
Although art 160 of Spanish Royal Legislative Decree 1/2007 of 16 November 2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias establishes that the consumer is entitled to withdraw from the contract at any time. The departure time of a package holiday at the end of the cooling-off period seems to be more in accordance with the aim of the right and the consequences of withdrawal provided for this norm. See Bech Serrat (2008), pp. 71–72. Quite the opposite, Rebolledo Varela (2010), pp. 23 and 33, held that the particular right of withdrawal in package holidays is not subject to any cooling-off period and it can be exercised during all the fulfilment period of the contract.
- 76.
Regarding distance selling, in the United Kingdom, the answer to the question ‘When providing services, when does a service begin?’ of the document ‘A guide for businesses on distance selling’ promoted by the OFT was as follows: ‘[t]his depends on the circumstances. Generally a service is said to have started once you start supplying the service you have promised. Many services require administrative or other preparatory work (such as setting up an account) before a supplier is able to provide the service promised. Often this work is underway when a contract is being agreed. In our view such work before the service starts do not mean that the service has begun’. See point 3.21 of the document Office of Fair Trading (OFT) (2006).
- 77.
See art II-3:103(1) DCFR.
- 78.
On the contrary, cancelling the contract at any time can be suitable when a contract is not concluded to provide these services on a specific date or within a specific period. With regard to this, art 1:115(1) PEL SC makes no distinction.
- 79.
See Sect. 3.2.1.
- 80.
Art 6 (1) of the Distance Selling Directive.
- 81.
Art 9(1) of the Consumer Rights Directive.
- 82.
Similarly, in the United Kingdom, the answer to the question ‘How do I make sure consumers do not cancel a service contract after I have started work?’ of the document ‘A guide for businesses on distance selling’ promoted by the OFT is the following: ‘[o]nce you have started work or begun to provide a service the consumer is contractually bound to honour his part of the contract so long as you: a) had their agreement to start the service, b) provided them with the required written information in advance of your starting, and c) told them that their cancellation rights will end as soon as you do start carrying out the contract’. See Office of Fair Trading (OFT) (2006).
- 83.
See art 74(2) of Spanish Royal Legislative Decree 1/2007 of 16 November 2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias. Cf. Rebolledo Varela (2010), p. 48.
- 84.
On the contrary, such a prohibition is very common in national law regarding other contracts. See Micklitz et al. 2010, p. 265. However, the ECJ Case C-205/07 Gysbrechts and Santurel Inter BVBA [2008] ECR I-9947, ruled that ‘Article 29 EC does not preclude national rules which prohibit a supplier, in cross-border distance selling, from requiring an advance or any payment from a consumer before expiry of the withdrawal period, but Article 29 EC does preclude a prohibition, under those rules, on requesting, before expiry of that period, the number of the consumer’s payment card’.
- 85.
This follows the model rules on notices: see art I.-1:109 DCFR.
- 86.
At this point, in the United Kingdom, the answer to the question ‘[f]rom what date would the notice of cancellation become effective?’ in the document ‘A guide for businesses on distance selling’ promoted by the OFT was answered clearly: ‘[t]he effective date for cancellations under the DSRs [Distance Selling Regulations] is the date on which the consumer gives notice of cancellation to you. This ensures that the consumer can take advantage of the full cancellation period provided in the DSRs’. To this extent, and additional question was posed: ‘[w]hat does ‘give notice of cancellation’ mean?’. The answer was: ‘[t]he DSRs say that notice of cancellation will be properly given if the consumer gives notice in one of the following ways: a) by leaving a notice addressed to you at your last address known to the consumer, in which case notice is said to have been given on the day on which it was felt at your address (sic); b) by posting the notice to you at the address known to the consumer, in which case notice is said to have been given on the day it was posted; or c) by faxing or emailing the notice to you via the last fax number or email address known to the consumer, in which case notice is said to have been given on the day it was sent. You may ask your consumers to keep some evidence of having given you the cancellation notice, such as a certificate of posting or confirmation of fax transmission, but you cannot insist on this’. See points 3.27–3.29 of the document Office of Fair Trading (OFT) (2006).
- 87.
See Loos (2009), pp. 264–265.
- 88.
Art 5(2) of the previous Timeshare Directive and art 7, third sentence, of the new Timeshare Directive.
- 89.
See also art 12(3) pCRD.
- 90.
In addition, Annex I of the Consumer Rights Directive states that ‘[t]o meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired’ when providing model instructions on withdrawal. See also art 12(2), third sentence, pCRD. In the opinion of the European Research Group on Existing EC Private Law (Acquis Group), new distinctions with regard to the starting point of the period for withdrawal created by the proposal are difficult to justify. See Redaction Committee of the Acquis Group (2010), p. 175. Art 12(1a) pCRD as amended by the European Parliament and the Council on 24 March 2011 removed this provision by stating, instead, that ‘[i]n the case of a distance or off-premises contract, the withdrawal period referred to in paragraph 1 [14 days] shall begin from the day of the conclusion of the contract or on the day on which the consumer receives a copy of the signed contract document on a durable medium, if different from the day of conclusion of the contract’.
- 91.
See art 6(1) of the Distance Selling Directive and art 9(2) of the Consumer Rights Directive, providing some exceptions to this rule. The distinction between the sale of goods and the supply of services on the basis of a distance contract has been considered unjustified. See Loos (2009), pp. 252–255.
- 92.
Art II.-5:103 DCFR.
- 93.
For criticism of the omission of the pCRD adopted on 8 October 2008, see Redaction Committee of the Acquis Group (2010), pp. 175–176.
- 94.
In the United Kingdom, see point 3.23 of the document ‘A guide for businesses on distance selling’ promoted by the OFT: Office of Fair Trading (OFT) (2006).
- 95.
Art 5(1) of the Timeshare Directive.
- 96.
Art 6(2) and (3) of the new Timeshare Directive.
- 97.
See Loos (2009), p. 256.
- 98.
Other directives do not provide explicit extension of the period for withdrawal but determine that the period for withdrawal only starts running once certain information has been provided. This is the case of the Doorstep Selling Directive and the Distance Marketing of Financial Services Directive. In this respect, the ECJ decided that it was impossible for national legislators to impose a maximum time limit as the period for withdrawal in any event did not start until the information had been provided, which leads thus to a possibly eternal right of withdrawal. See ECJ Case C-481/99 Heiniger v Bayerische Hypotheken-und Vereinsbank AG [2001] ECR I-9945. However, more recently the ECJ Case C-412/06 Hamilton v Volksbank Filder [2008] ECR I-2383, admitted national legislation providing a 1-month time limit from the time when the contracting parties have performed their obligations in full under a contract for long-term credit where the consumer has been given defective notice concerning the exercises of that right.
- 99.
Art II.-5:103 DCFR limits the period for withdrawal to 1 year from the time of the conclusion of the contract.
- 100.
By contrast, art 13 pCRD of 8 October 2008 sanctioned an omission of information on the right of withdrawal with a prolongation of the period of withdrawal to 3 months after the trader had fully performed his other contractual obligations. In the opinion of the Acquis Group, this criterion seemed to be a rather lenient sanction for depriving a consumer of information that is crucial to effectively exercise his right of withdrawal. See Redaction Committee of the Acquis Group (2010), p. 177. Afterwards, art 13 pCRD as amended on 24 March 2011 fixed a withdrawal period of 1 year and, additionally, stated that member states could maintain existing national legislation providing for a longer period of expiration of the withdrawal period. Compare art 6(1) of the Distance Selling Directive.
- 101.
Compare art 6(3) of the Distance Contracts Directive. In the United Kingdom, see Regulation 12 of the Consumer Protection (Distance Selling) Regulations 2000. Concerning the extension of the cooling-off period, Loos (2007), p. 29 and pp. 33–34.
- 102.
A renunciation of the right of withdrawal from the contract should only be possible once the consumer is fully informed. Ibid, pp. 23–24. In Spanish law, see Bech Serrat (2008), p. 71.
- 103.
Compare with Loos (2009), p. 259, who concludes that the doctrine of abuse of right should not be applied to these cases.
- 104.
Art 6 of the Distance Selling Directive.
- 105.
See Loos (2007), p. 16.
- 106.
See Loos (2009), p. 261.
- 107.
For example, notification of withdrawal is possible by any means that can be proven in accordance with national law in some cases: see art 6(6) of the Distance Marketing of Financial Services Directive and art 14(3), point (a), of the Consumer Credit Directive.
- 108.
Art 7 of the new Timeshare Directive.
- 109.
Art 11(1) of the Consumer Rights Directive.
- 110.
Similarly, in the United Kingdom, the answer to the question ‘What must my consumers do if they want to cancel?’ of the document ‘A guide for businesses on distance selling’ promoted by the OFT was as follows: ‘[t]hey must tell you in writing, or on another durable medium, if they want to cancel. This includes letter, fax or email. A phone call is not enough unless you say in your terms and conditions that you will accept cancellations by phone’. See point 3.26 of the document Office of Fair Trading (OFT) (2006).
- 111.
Art 14(1) pCRD. By contrast, a durable medium was not required by article 14(1) pCRD as amended on 24 March 2011 by the European Parliament and the Council. The latter text obliged the consumer either to use the model withdrawal form or make any other clearly worded statement, or return the goods to the trader, accompanied by a clearly worded statement setting out the consumer’s decision to withdraw from the contract.
- 112.
Introduction of a durable medium requirement might have had a boomerang effect, so that in cases where the contract was concluded electronically, a written statement on a USB-stick or another durable medium would be required. Regarding the pCRD adopted on 8 October 2008, it was considered that this was probably not the intention of the European Commission. See Loos (2009), p. 263.
- 113.
Micklitz et al. (2010), pp. 265–266.
- 114.
Art 11(4) of the Consumer Rights Directive.
- 115.
See Loos (2009), pp. 263–264.
- 116.
Compare § 355(1) of the German Bürgerliches Gesetzbuch (BGB), where a textual form is preferred.
- 117.
See Loos (2009), pp. 261–262. Regarding the text of the Acquis Principles, see Acquis Group (2007).
- 118.
Art 11(3) of the Consumer Rights Directive. The terms ‘by email’ used in art 14(2) pCRD of 8 October 2008 were replaced by the terms ‘on a durable medium’ in the new wording of art 14(2) of the Draft Directive on consumer rights adopted on 9 February 2011 by the European Parliament Committee on Internal Market and Consumer Protection (IMCO’s draft). See European Parliament Committee on Internal Market and Consumer Protection (2011). In addition, this art 14(2) provided that the trader could also give the option to the consumer to withdraw from the contract by telephone.
- 119.
See Bech Serrat (2008), p. 71.
- 120.
See art 25 of the Consumer Rights Directive and art II.-5:101(2) DCFR.
- 121.
Art 6(2) of the Distance Selling Directive.
- 122.
Art 13(1), first sentence, of the Consumer Rights Directive. By contrast, art 16(1) pCRD adopted on 8 October 2008 stated a reimbursement of any payment received from the consumer within 30 days from the day on which trader received the communication of withdrawal. Art 16(1) pCRD as amended on 24 March 2011 by the European Parliament and the Council allowed the trader to carrying out such reimbursement by any means of payment which was legal tender in the country where the consumer received it, provided that the consumer did not incur any fees as a result of the reimbursement.
- 123.
Art 13(1), second sentence, of the Consumer Rights Directive.
- 124.
For instance, art 76(2) of Spanish Royal Legislative Decree 1/2007 of 16 November 2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias provides reimbursement of the price in duplicate. Where this provision is applicable to package holidays, organisers and retailers ought to seek to arrange another package for the withdrawing party. Otherwise, the consumer may be tempted to accept the reimbursement. See Bech Serrat (2008), p. 75.
- 125.
Vide ECJ Case C-350/03 Schulte v Deutsche Bausparkasse Badenia AG [2005] ECR I-9215, regarding the compatibility between EC law and the German provisions on restitution (§ 357 BGB). See Micklitz et al. (2010), pp. 269 and 272.
- 126.
Art 12 of the Consumer Rights Directive. The previous version of pCRD adopted on 8 October 2008 did not refer to distance contracts in cases where an offer is made by the consumer.
- 127.
For disparity between countries, Micklitz et al. (2010), pp. 270–271. In this respect, art II.-5:105(2) DCFR refers to the rules on restitution upon termination, unless the contract provides otherwise in favour of the withdrawing party. According to paragraph (3), where the withdrawing party has made a payment under the contract, the business has an obligation to return the payment without undue delay, and in any case not later than 30 days after the withdrawal becomes effective. Furthermore, more detailed rules regarding restitutionary effects are provided. In addition, paragraph (6) provides that except as provided in this article, the withdrawing party does not incur any liability through the exercise of the right of withdrawal. In the system of the DCFR this implies that the right of withdrawal is considered only to have prospective effect.
- 128.
Ibid, pp. 269 and 272.
- 129.
Art 14(4), point (a), of the Consumer Rights Directive. Previously, art 17(2) pCRD adopted on 8 October 2008 stated that, for service contracts subject to a right of withdrawal, the consumer was bear no cost for services performed, in full or in part, during the withdrawal period; whereas art 17(2a) pCRD as amended on 24 March 2011, removed this provision. Although the draft clarified that, except as provided for in art 17, the consumer shall not incur any liability through the exercise of the right of withdrawal, the removal regarding service contracts introduced some uncertainty.
- 130.
See costs provided for in art 13(2) and art 14 of the Consumer Rights Directive, which shall be borne by the consumer as provided in for art 9(1).
- 131.
Art 8(8) of the Consumer Rights Directive.
- 132.
Art 14(3) of the Consumer Rights Directive. The proportionate amount to be paid by the consumer to the trader shall be calculated on the basis of the total price agreed in the contract. If the total price is excessive, the proportionate amount shall be calculated on the basis of the market value of what has been provided. The pCRD adopted on 8 October 2008 was silent on the issue.
- 133.
Art 14(5) of the Consumer Rights Directive. The exception regarding the prohibition of reimbursement of 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, will be not applicable to service contracts. Regarding sales contracts, see also art 13(2) and (3) of the Consumer Rights Directive.
- 134.
Art 19 of the Consumer Rights Directive establishes that member states shall prohibit traders from charging the consumer, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of such means.
- 135.
According to art 21 of the Consumer Rights Directive, member states shall ensure that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer is not bound to pay more than the basic rate when contacting the trader.
- 136.
See art 15(1) of the Consumer Rights Directive. See also art 18(1) pCRD adopted on 8 October 2008. Art 18(1) IMCO’s draft of 9 February 2011 made reference to ‘linked contracts’.
- 137.
See art 15(1) of the Consumer Rights Directive. Before the IMCO’s draft, some scholars held that, in any case, the costs of postage and costs related to independent information or advice (e.g. a notary) would have to be borne by the consumer. See, for instance, Loos (2007), p. 19.
- 138.
See art 15(2) of the Consumer Rights Directive.
- 139.
The idea is found, for example, in Germany. See Micklitz et al. (2010), p. 276.
- 140.
By contrast, the Distance Selling Directive only mentioned credit agreements as linked contracts and other directives do not provide specific provisions dealing with linked agreements (e.g. the Doorstep Selling Directive) and vary widely both in scope and with regard to the consequences of the exercise of a right of withdrawal on linked contracts. See, for example, art 6(7) of the Distance Selling of Financial Services Directive.
- 141.
Other consequences of withdrawal provided in art II.-5:105 DFCR are not applicable to tourism. For example, see art 14(1) and (2) of the Consumer Rights Directive.
- 142.
Art 3(3), points (g), (h) and (k) and art 16, point (l), of the Consumer Rights Directive. Section 1.2.1.
- 143.
Compare art 9(2), point (a), of the Consumer Rights Directive.
- 144.
Art IV.C.-2:111(1) DCFR. The word ‘termination’ is used even though the client’s right does not depend on any non-performance by the service provider. See Von Bar et al. (2009), p. 1696. Instead, in our opinion ‘cancellation’ or ‘withdrawal’ would be more appropriate words. See also art 1:115 of PEL SC. By contrast, the PECL only recognises the right in the specific context of contracts that are concluded for an indefinite period: art 6:109.
- 145.
Art III.-1:109(3) DCFR.
- 146.
Art IV.C.-2:111(2) DCFR.
- 147.
See arts III.-3:510-514 DCFR.
- 148.
This is the effect of art IV.C.-2:111(2) DCFR regarding the client’s right to ‘terminate’ service contracts.
- 149.
The restitutionary effects include payment for any services which had already been rendered by the time of ‘termination’ but for which payment has not yet fallen due. See art III.-3:512 DCFR.
- 150.
Von Bar et al. (2009), pp. 1697–1698.
- 151.
This approach is followed in many legal systems. Vide Von Bar et al. (2009), p. 1697.
- 152.
Art IV.C.-2:111(3) DCFR.
- 153.
Art IV.C.-2:111(4) DCFR. Paragraph (4) applies the normal rules of damages and this means that the service provider is entitled to be restored as nearly as possible to the situation which would have prevailed if the contractual obligations had been duly performed.
- 154.
Art IV.C.-2:111(5) DCFR. Model rules on ‘termination’ for fundamental non-performance or the equivalent are those in book III, chapter 3, section 5, whereas model rules on ‘terminating’ the relationship under variation or termination by notice are those of art III.-1:109(2) DCFR, which deals with contracts of indefinite duration.
- 155.
The gain of which the service provider has been deprived as consequence of the cancellation can be compensated for. Regarding this, see article 1:115(2) PEL SC. For comment, see Principles of European Law (2007), pp. 300–307.
- 156.
There is a duty of the hotel under contract law to mitigate its losses by re-letting rooms, if possible. Cf. art IV.C.-2:111(3) DCFR.
- 157.
See art 1:115(3) PEL SC. Regarding package holidays, see § 651, point (i), paragraphs (2) and (3) BGB. For the comment, see Führich 2010, pp. 493–503.
- 158.
For instance, the withdrawing guest may demand appropriate compensation to be determined by the price of services minus the value of the expenses saved by the company and what can be gained by alternative deployment of the services. With regard to German travel law, see § 651, point (i), paragraphs (2) and (3) BGB. For the comment, ibid, pp. 493–503. Likewise, a maximum percentage of the price of services such as cancellation fees may be agreed upon by the contracting parties. For instance, according to art 29 of Portuguese Decreto-Lei No. 209/1997 of 13 August 1997 sobre Regime Jurídico das Agências de viagens (Travel Agents Regulations), travel agents must reimburse the withdrawing consumer with the advance payment, less the expenses caused by starting the fulfilment of the contract and cancellation up to a percentage less than 15% of the price of the service; or the company may be entitled to claim for damages resulting from the cancellation in some cases, although determining whether the client was justified or not in terminating the relationship will be difficult.
- 159.
Regarding art III.-1:109(3) DCFR, Von Bar et al. (2009), p. 707.
- 160.
See art 9(1) of the Consumer Rights Directive; see also arts 19 and 21.
- 161.
Art 14(3) of the Consumer Rights Directive.
- 162.
See art 9(1) and art 14(3) and (4), point (a), of the Consumer Rights Directive.
- 163.
Apart from the items to be considered when calculating the amount to pay in penalties, rules on damages are not put aside entirely by cancellation clauses in tourism and sometimes a penalty is excluded in the case of force majeure. However, the right of withdrawal is attached to a discretionary exercise, so there should be no room for the concept of force majeure, which is related to a right of compensation for damages. Regarding package holidays, see Bech Serrat (2008), pp. 77–78.
- 164.
Regarding arts 1:111 and 1:115 PEL SC, see Principles of European Law (2007), pp. 260–274 and 300–307, maintaining that art 1:115 PEL SC on cancellation of the service contract contains derogative rules.
- 165.
Party autonomy should play a similar role to formal requirements regarding the exercise of the right of withdrawal. See Sect. 3.2.2.
- 166.
Art 11(1) of the Consumer Rights Directive.
- 167.
Redaction Committee of the Acquis Group (2010), p. 166. In this respect, the provision on the withdrawal period of 14 days in art 12(1) pCRD as amended on 24 March 2011 by the European Parliament and the Council, as opposed to the minimum 7-day period in the directives underlying the proposed Directive, was regarded as convincing. Schulze (2010), pp. 18–19.
- 168.
Ibid; also Redaction Committee of the Acquis Group (2010), pp. 166–167.
- 169.
Storme (2010), p. 2.
- 170.
See Micklitz et al. (2010), pp. 247–249.
- 171.
Art 3(3), points (g), (h) and (k), and art 16, point (l), of the Consumer Rights Directive.
- 172.
See Sect. 1.2.1.
- 173.
When different jurisdictions are allowed to offer their own solution to a problem, these jurisdictions can learn from each other. See Smits (2010), pp. 11–12.
- 174.
- 175.
In Spanish law, it has been considered that national mandatory rules imposing a duty on the company to provide information on the right of withdrawal and a standard withdrawal form to the consumer, provided for in art 69 of Spanish Royal Legislative Decree 1/2007 of 16 November 2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias, are not applicable to extra-legal (contractual) right of withdrawal from the contract. See Rebolledo Varela (2010), p. 28.
References
Acquis Group (2007) Principles of the Existing EC Contract Law (Acquis Principles). http://www.acquis-group.org/. Accessed 1 April 2012
Bech Serrat JM (2008) Regulación de los viajes combinados: Aclaraciones de un texto refundido. RDP:55–96
Bech Serrat JM (2010) Reparar y sustituir cosas en la compraventa: Evolución y últimas tendencias’. InDret. http://www.indret.com/pdf/697_es.pdf. Accessed 3 October 2011
Canigou Cycling (2011) Canigou Cycling booking conditions. http://www.canigou-cycling.com/en/infoprices/bookingconditions.php. Accessed 3 October 2011
European Commission (2008) Proposal from the Commission of 8 October 2008 for a Directive on consumer rights. http://ec.europa.eu/consumers/rights/docs/COMM_PDF_COM_2008_0614_F_EN_PROPOSITION_DE_DIRECTIVE.pdf. Accessed 27 March 2012
European Commission (2010) Responses to the public consultation on the Package Travel Directive revision. http://ec.europa.eu/consumers/rights/public_consultation_responses_en.htm. Accessed 20 March 2010
European Parliament Committee on Internal Market and Consumer Protection (2011) Draft Directive on consumer rights of 9 February 2011. http://tourismusrecht.eu/Tourismusrecht/Rechtsakte_files/WD_Consumer-Rights-Directive_IMCO.pdf. Accessed 15 February 2011
Führich E (2010) Reiserecht. Beck, München
Hall E (2007) Cancellation rights in distance–selling contracts for services: Exemptions and consumer protection. JBL 6:683–700
Hondius E (2010) The proposal for a European Directive on consumer rights: A step forward. ERPL 18:103–129
Lando O, Beale H (eds) (2000) Principles of European contract law: Parts I and II. Kluwer Law International, The Hague
Loos MBM (2007) The case for a uniform and efficient right of withdrawal from consumer contracts in European contract law. ZEuP:5–36
Loos MBM (2009) Rights of withdrawal. In: Howells G, Schulze R (eds) Modernising and harmonising consumer contract law. Sellier, München, pp 237–277
Micklitz HW, Stuyck J, Terryn E (coords) (2010) Consumer law (cases, materials and text). Hart Publishing, Oxford
Office of Fair Trading (OFT) (2006) A guide for businesses on distance selling. http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf. Accessed 14 October 2010
Principles of European Law (PEL) prepared by Barendrecht M, Jansen C, Loos M, Pinna A, CascÐo R, van Gulijk S (2007) Service contracts (SC). Sellier, München
Rebolledo Varela AL (2010) El ejercicio del derecho del desistimiento en los contratos con consumidores en el RDLEG. 1/2007, de 16 de noviembre. RDP:15–57
Redaction Committee of the Acquis Group (2010) Position paper on the proposal for a Directive on consumer rights. In: Schulte-Nölke H, Tichý L (eds) Perspectives for European consumer law: Towards a Directive on consumer rights and beyond. Sellier, München, pp 157–183
Schulte-Nölke H (2007) EC law on the formation of contract—from the Common Frame of Reference to the ‘Blue button’. ERCL 3:332–349
Schulze R (2010) The right of withdrawal. In: Schulte-Nölke H, Tichý L (eds) Perspectives for European consumer law: Towards a Directive on consumer rights and beyond. Sellier, München, pp 13–22
Smits J (2010) Full harmonization of consumer law? A critique of the Draft Directive on consumer rights. ERPL 18:5–14
Somma A (2010) Towards a European private law? The Common Frame of Reference in the conflict between EC law and national laws. In: Micklitz HW, Cafaggi F (eds) European private law after the Common Frame of Reference. Edward Elgar, Cheltenham, pp 1–23
Storme ME (2010) Editorial: Consumer rights proposals and Draft CFR. ERPL 18:1–3
Von Bar C, Clive E, Schulte-Nölke H (2009) Principles, definitions and model rules of European private law: Draft Common Frame of Reference. Sellier, München
Watt HM, Sefton-Green R (2010) Fitting the frame: An optional instrument, party choice and mandatory/default rules. In: Micklitz HW, Cafaggi F (eds) European private law after the Common Frame of Reference. Edward Elgar, Cheltenham, pp 201–219
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Serrat, J.M.B. (2012). Right of Withdrawal. In: Selling Tourism Services at a Distance. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-27887-7_3
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