Cyprus: Cyprus Elements Of ''Study On All Mandatory Rules Applicable To Contractual Obligations In Contracts For Sales Of Tangible Goods Sold At A Distance And, In Particular Online''


The aim of the study is to list the "simple" mandatory provisions, i.e. the "provisions that cannot be derogated from by agreement" according to article 6 of the Rome I Regulation in the 28 Member States. In addition, the study identifies such provisions in B2B contracts.

Regarding the domestic mandatory rules regulating the sale of tangible goods on line or at a distance, the study has set forth the following trends.

It reveals that numerous national provisions grant a higher level of protection to the consumer than the directive 93/13 about unfair terms, and the directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees, does. Additionally, a large number of domestic provisions have a broader scope than these directives.

As for the rules outside the European Acquis, but in B2C contracts, it appears that the European Acquis covers pretty much the rules necessary for consumer protection. Only in a few areas can one find domestic rules of consumer protection that are not covered by the European Acquis: merger clauses, duty to raise awareness of non-individually negotiated terms, rules on spare parts and consumables, etc. As a result, only small improvements could still be made for sales of tangible goods sold at a distance and, in particular on line.

Finally, as far as B2B contracts are concerned, there are domestic rules that were partially inspired by consumer law, which shows that even in a liberal economy, some Member States feel the need to protect the weaker party with rules that cannot be derogated from.

1.-Executive Summary

Consumer protection2 in Regulation No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Regulation Rome I) is ensured especially by Article 6 of that Regulation, which stipulates that:

  1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:
    1. pursues his commercial or professional activities in the country where the consumer has his habitual residence, or
    2. by any means, directs such activities to that country or to several countries including that country, and the contract falls within the scope of such activities.
  1. Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1.
  2. If the requirements in Points (a) or (b) of paragraph 1 are not fulfilled, the law applicable to a contract between a consumer and a professional shall be determined pursuant to Articles 3 and 4... »

The aim of the study is to list the "simple" mandatory provisions3, i.e. the "provisions that cannot be derogated from by agreement" according to article 6 of the Rome I Regulation in the 28 Member States. In addition, in order to extend our comparison, the study will identify such provisions in B2B contracts.

In domestic law, many rules cannot be derogated from by agreement. These mandatory rules are well identified when they are part of general law. However, instead of focusing on general law, the present study scrutinizes a vast set of special rules: those that are especially intended for consumer protection on the one hand (parts I and II) and those that are aimed at professionals on the other hand (part III).

This study about the domestic mandatory rules regulating the sale of tangible goods online or at a distance has observed the following trends, in the area of the protection of consumer (1.1), and in the area of the protection of professional (1.2).

1.1. In the area of the protection of the consumer

1.1.1- Higher level of protection in domestic law than in the directives 93/13 and 1999/44 (European acquis, part. I of the study)

In the first part of the study, we have looked at the rules that cannot be derogated from in the area of the European Acquis. Our aim was not to check whether the provisions of the European Acquis had been correctly implemented. The study relies on two directives: i) Directive 93/13 about unfair terms, and ii) Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees.

We were more specifically interested in the mandatory provisions that protect the consumer more than these two directives of the European Acquis in the area of minimal harmonization do.

Some domestic provisions provide a higher level of protection than the directives. This is true for the two directives 93/13 and 1999/44 examined.

- Higher level of protection in the area of unfair terms.

On the one hand, the conditions for assessing that a term is unfair are more favourable in the Member States' legislations.

  • For instance, in nine Member States, good faith is not mentioned in the unfairness-test (cf Q1). Thus, the mandatory domestic laws are more protective than the directive because they do not require this condition. In two more Member States, the condition of good faith is mentioned but it does not have to be fulfilled simultaneously with the condition for significant imbalance. As a result, a contract term is deemed to be unfair if it causes a significant imbalance to the detriment of the consumer or if it is contrary to the principle of fairness and good faith.
  • At least ten Member States ( eleven if we count partial solution) consider that the protection against unfair terms is not limited to non-individually negotiated terms (cf Q1) (AT (§ 879 (3) ABGB), DK (Section 36.1 of the Danish Act on Contracts), FR (Article L. 132-1, paragraph 3 of the consumer code), LU (Article L.211-2 of the Consumer code), MT, FI (CPA (38/1978) Chapter 4 Section 1), SE (Section 36 of the Contracts Act), UK (the Consumer Rights Act 2015), CZ (Section 1813 of Civil Code), BE (no reference to the concept of negotiated term: Art. I.8, 22° Code of Economic Law (CEL)) and partially IT (Art, 36, § 2, It. Cons. Code). In fact, the consumer has no actual power to negotiate, even when he does negotiate. That is also the reason why both the duty of transparency and the interpretation more favourable to the consumer apply in some Member States (5) irrespective of whether a term has been negotiated or not.
  • In addition, in eight Member States, the protection against unfair terms also applies to the main subject matter of the contract or to the price paid (cf Q2) (DK (Section 36.1 of the Danish Act on Contracts), ES, FI (CPA (38/1978) Chapter 4 Section 1), LU (article L. 211-2 of the Consumer code), MT (Article 44 of chapter 378 of the Law of Malta), PT, SE (Consumer Contracts Act (1994:1512), Section 11), SI (Article 24(2) of the ZVPot).Therefore, these Member States grant higher a consumer protection than the directive does.

On the other hand, many Member States provide for lists of unfair terms that are more favourable to the consumer than the indicative list in Annex of the Directive.

  • Only five Member States out of twenty-eight have neither a black list nor a grey list of unfair terms (cf Q6) (CY, DK, IE, RO, SE).
  • Eight Member States provide two lists of unfair terms:
  • one is black (terms that are always unfair) and the other is grey (terms that are presumed to be unfair) (cf Q.6) ( FR, HU, IT, NL, SK, PT)
  • DE (a black list and the other list of clauses whose effectiveness depends on an evaluation) AT (a black list and another list of terms are considered unfair, unless the trader can prove they have been individually negotiated)
  • Finally, thirteen Member States have added terms that are not in the indicative list of the directive, regarding sales of tangible goods, at distance, and in particular on line (cf Q6 in fine) (AT, BG, CZ, EE, EL, HU, IE, LU, NL, PL, PT, SI, UK).

As a result, the level of consumer protection against unfair terms is higher in domestic law than in the directive. Higher level of protection in the area of guarantees against lack of conformity.

In many Member States, the domestic rules on the proof of the existence of the lack of conformity (or the proof of the absence of lack of conformity) are more favourable to the consumer than Directive 1999/44.

  • For instance, in several Member States, the presumption (or the rule) of conformity (art. 2§2 of the directive 1999/44) is stricter because it applies in fewer situations than in the directive (cf Q7) (AT, DE, EE, HR, PL, UK). Therefore, these domestic laws are more protective of the consumers than the directive. In these six Member States, the presumption applies only if the consumer was aware, or could not reasonably be unaware of, the lack of conformity, but the presumption regarding materials supplied by the consumer is not provided. In addition, in two more Member States (EL, SK), this presumption of conformity does not exist.
  • In addition, some Member States prohibit contractual arrangements derogating from conformity requirements, even if these agreements are made after the consumer has knowledge of the lack of conformity (cf Q7) (CY, HR, IE, PL, SI, SK); conversely, the directive recognize such arrangements made after the consumer is aware of the said lack of conformity (Art 7). Therefore, these domestic laws are more protective of the consumer than the directive. In addition, a number of other Member States that admit contractual arrangements derogating from conformity requirements in case the consumer has knowledge of the defect, set other requirements (AT, BE, DE, ES, LU, UK). Overall, thirteen Member States out of twenty-eight are more protective of the consumer against the contractual arrangements derogating from conformity requirements.
  • Many Member States provide other mandatory rules to protect consumers against the circumvention of the mandatory provisions of directive 1999/44/EC (see Q12).

In some Member States, domestic law is more favourable to the consumer than the Directive's presumption of the existence of the lack of conformity before the delivery if it appears within six months after the delivery. In three Member States, the presumption period is longer than six months, which alleviates the consumer's burden of proof (cf Q10-2) (PL4 (one year), PT5 (2 years), FR6 (2 years)).

Five Member States have gone beyond art.5, para. 1 of Directive 1999/44 by providing longer or undefinite legal guarantee periods or by not having such periods at all (FI, NL, SE, IE and UK).

  • Six Member States have extended the group of persons for whose statements the seller is responsible in directive 1999/44/EC: to the previous seller (EE, FI), to another retailer (AT, EE), to any other professional upstream of the professional in question (LU), to the service provider (LV) and to the storer (PT).

Member States are more protective of consumers, compared to the Directives, in relation to remedies.

  • On the one hand, in nine member States consumer have a free choice among several remedies (cf Q8) (CY, EL, HR, HU, IE, LI, PT, SI, UK) and four other member states have just a partial hierarchy (DK, EE, LU, PL). In most of the first nine member states cited above, the consumer has a choice, he may turn to whatever remedy he sees fit, but in IE and UK the choice of remedies exists only as long as the short term right to reject is available. Thus, the domestic laws are more protective than the directive even if the consumer's right to choose a remedy is subject to the fulfilment of the specific conditions of each right and remedy.
  • On the other hand, in all the Member States, the consumer who suffers a non-performance may also obtain damages, which cannot be derogated from by agreement (cf Q8).
  • In fifteen Member States, the buyer can cumulate remedies (cf Q8) (AT, BG, DK, EE, ES, FI, HU, IT, LT, LU7, MT, NL8, RO, SE, SK, UK).
  • In two Member States, repair or replacement may be claimed by the consumer, without any restrictions (except probably where it is impossible), the seller cannot rely on the fact that the burden of expense would be disproportionate to the benefit that the consumer would obtain (cf Q8) (HR, MT).
  • Some Member States grant consumers a right that is not provided by the directive: the right to withhold performance in certain cases (cf Q8) (AT, BE, BG, CZ, DK, EE, EL, ES, FR, HU, LT, LU, MT, NL, PL, PT, RO, SI, SK), and 14 Member States provide that this right to withhold (even where it is based on ordinary law) may be used as a preventive remedy (cf Q8) (AT, BG, CZ, DK, EE, FI, HU, LT, MT, NL9, PL, RO, SE, SI)
  • In twenty-two Member States, a rule enables the buyer to terminate the contract before performance is due if the seller has declared, or if it is otherwise clear, that there will be a non-performance (cf Q8) (AT, BG, CY, CZ, DE, EE, EL, ES, FI, HR, HU, IE, IT, LT, MT, NL, PL, PT, RO, SE, SI, UK). Additionally, this rule cannot be derogated from by agreement.
  • Twenty-two Member States set out a principle whereby termination of the contract is only partial if the non-performed obligations are divisible (cf Q8) (AT, CZ, DE, EE, EL, ES, FI, FR, HR, HU, IE, LT,MT, PL, PT, RO, SE, SI, SK, FI10, UK).
  • In twenty-four Member States, where the consumer reduces the price, he is entitled to recover the excess already paid to the seller (cf Q8) (AT, BE, BG, CY, CZ, DE, DK, EL, ES, FI, FR, HR, IE, IT, LT, LU, MT, NL, PT, RO, SE, SI, SK, UK)
  • Most of the Member States provide that where the buyer has the right to reduce the price, he is also entitled to recover damages for the loss thereby compensated (cf Q8).
  • In seven Member States, the consumer is not required to give notification (cf Q10) (AT, DE, EL11, IE, FR, PL12, UK)

The Member States are also more protective of consumers when it comes to the written commercial guarantee .

In seven Member States, the commercial guarantee shall be drawn up in writing or it may be featured in another durable medium available and accessible to the consumer. The fulfilment of this obligation does not depend on a "consumer's request". Therefore, this rule increases the level of protection of the consumer.

In this respect, the level of protection in domestic law is unquestionably higher than in the directive.

But a higher level of protection is not the only way for Member States to be more favourable than the European Acquis. Indeed, it must be noted that domestic laws often have a broader scope than the European acquis, which adds to the level of consumer protection.

1.1.2. Protection of the consumer outside the area of the European Acquis (part 2 of the study)

In the second part of the study, we identified rules of domestic law that are specifically made for consumers, but that are not in the European acquis and that cannot be derogated from.

The difficulty is that most of the sales law has already been dealt with in the European Acquis, leaving very little provisions outside the area of the European Acquis.

But some provisions are going further than the European Acquis. Prohibition of the refusal to sell to consumers or of the discrimination between consumers (pre-contractual period).

  • Some Member States have on one hand, a prohibition of the refusal to sell to consumers (cf Q13) (BG (only when it is a discrimination), DE, DK, PT, RO) and, on the other hand, a prohibition of the discrimination of consumers (cf Q13) (BG and ES).
  • The prohibition of the refusal to sell to a consumer, or of the discrimination between consumers, without legitimate reason, could be useful for the European single market. It could exclude that the professional refuse to sell to a consumer only because he resides in another Member State, except if the delivery costs were disproportionate to the value of the thing sold. Duty to raise awareness of non-individually negotiated contract terms (pre-contractual period)

Seven Member States (cf Q13) impose this duty - for all terms (four Member States: BG, EL, LU, SI) or for certain terms (three Member States: HU, RO, SE).

The duty to raise awareness of non-individually negotiated terms is not provided in the European acquis. Indeed, it is more than the duty to provide clear information in an intelligible manner, since the consumer does not read all the information. Therefore, it can be more effective to raise awareness of non-individually negotiated contract terms, or only of some of them. Prohibition of the merger clauses

Thirteen Member States are against merger clauses stipulated in B2C contracts (cf Q22).

However, seven of those Member States bar this clause on the basis on the prohibition of unfair terms (BE, CZ, ES, FI, IE, PT, UK). Other Member States consider that this type of clause does not bind the consumer, and only binds the trader. As a result, merger clauses cannot prevent the parties' prior statements from being used to interpret a B2C contract to the detriment of the consumer (AT, CZ, DK, ES, FI, PT).

Even if it can be based on the prohibition of unfair terms, it may be more effective to write it expressly in the law. Right to availibility of spare parts and consumables during a certain period, or right to be informed of this period

Five Member States provide specific consumer protection in this area (cf Q37). In some of them, the consumers have the right to the availability of spare parts for a minimum period (fixed period, or period of operation of the good) (ES13, PT14, RO15, SE16). In one other Member State, the consumer must be informed, at the time of the sale, of the period during which parts and consumables that are essential for use of the goods are likely to be on the market (FR17). Protection can also result from general texts applicable to all the parties (CY18, DE19, IE20, HR21, SI22). Liability of the seller when he entrusts performance to another person

Another example can be taken with the specific mandatory rule made for protecting the consumers which provides that when the seller entrusts performance to another person, he remains responsible for the said performance in B2C contracts (cf Q27). For three Member states, there is a specific to consumers mandatory rule, which is in the specific texts made for consumers, which provides that when the seller entrusts performance to another person, he remains responsible for performance in B2C contracts (ES23, FI24, FR25). For others, a term that allows the trader to transfer his obligations or the contract as a whole with debt-discharging effect to a third party that has not been mentioned by name in the contract is considered as unfair unless individually negotiated (AT, DK, IE).

There is also general rules which provide the same solution in other Member states (PT26, RO27, BG, CZ28, EE, HU, NL, IT29, LU30, SE).

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2 O. Boskovic, La protection de la partie faible dans le rčglement "Rome I": D. 2008, doctr. p. 2175; See also M. Behar-Touchais: The functioning of the CESL within the framework of the Rome I Regulation, briefing paper pe462477_en.pdf,

3 Cf. n° 4.1 for the distinction between simple mandatory provisions and overriding mandatory laws.

4 PL: In Polish law the rule is simpler – in B2C contracts if the defect was apparent within a year of the delivery, it is presumed to have existed at the time of delivery. It must be noted that before the reform of 2014 the presumption period was 6 months, after the reform it was extended to one year.

5 PT: According to Article 3, nr. 2 Sale of Consumer Goods Act, any lack of conformity which becomes apparent within two or five years of delivery of the movable or immovable goods, respectively (the Portuguese legislator extended the application of that Act to immovable - Article 3, nr. 2), are presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity.

6 FR: As of March 17, 2016 (cf Hamon Act of 17 march 2014; new article L211-7 of the consumer code, applicable after two years), the period of presumption of lack of conformity will be extended to twenty four months for goods and six months for second-hand goods. Such rule cannot be derogated from by agreement (Art. L. 211-17 of the Consumer code)

7 LU: When there is contract between a supplier and a consumer, the consumer will have remedies provided under the legal guarantee of conformity provided for in Article L.212-1 and following of the Consumer code. The article 212-8 of the Consumer code also states that the previous provisions shall not deprive the consumer of remedies resulting from hidden defects as resulting from articles 1641 to 1649 of the Civil code, or any other contractual or non-contractual claim recognized by the law. If the contract is not subject to the specific rules of the Code of consumption (that is, the contract was not concluded between a consumer and a professional seller), the provisions of article 1184 al. 2 of the Civil code are applicable: "In this case, the contract is not terminated as of right. The party to whom the undertaking has not been performed has the option to force the other to perform the agreement when possible, or ask for termination of the contract with the payment of damages ". Consequently, based on this article, the buyer can either ask for the enforcement of the sale contract, or for the termination of the sale contract with damages. In that case, the contract is not terminated as of right. The party towards whom the undertaking has not been fulfilled has the choice either to compel the other to fulfil the agreement when it is possible, or to request its avoidance with damages.

8 NL: Remedies may be combined unless they exclude each other. For instance, the remedies of damages and repair/replacement, and of damages and termination may be combined, but a claim for repair/replacement excludes a claim for termination or damages replacing a claim for performance.

9 NL: art. 6:263 BW sets out the following conditions: (1) the performance he withholds, is proportionate to the anticipated non-performance of the seller ; (2) the consumer's obligation is the direct counter-obligation of the seller's obligation ;(3) the consumer was informed of the circumstances that give rise to the fear that the seller will not perform his obligation after the contract was concluded

10 FI: the consumer has the right to terminate the contract as a whole if, by reason of the interdependence of the different parts, the consumer would suffer substantial detriment if the termination were only partial.

11 EL: Such provision was not adopted by the Greek law because it was considered as extremely burdensome for consumers.

12 PL: after the reform of 2014 there is no such duty in B2C contracts. It existed under the Polish law before the reform (2 months period to inform).

13 ES: According to arts. 127 RCPA and 12.3 ART, as regards long-lasting products (= only those listed in the annex II of RD 1507/2000, of 1 September), consumers shall have the right to the availibility of spare parts for a minimum period of five years following the date on which the product ceases to be manufactured. It is consumer law.

14 PT: Article 9, nr. 5 Consumer Protection Act provides that the consumer has the right to receive after-sales assistance related to the supply of parts and accessories for the normal average duration period of the products supplied. This is limited to the "lifetime" of each existing product, and cannot be longer in any case to 10 years (Article 6 Sale of Consumer Goods Act) . It concerns also consumables (doctrinal opinion).

15 RO: Art. 10, Governmental Ordinance 21/1992 on consumer protection, "The consumers concluding a contract have the following rights: (e) to beneficiate of spare parts and consumables during the average period of function which may vary in accordance with the manufacturer's statements, technical legal provisions or specific contractual terms." Any contractual terms charging the consumers for the spare parts or consumables are void during the legal period of guarantee of two years within which the repair of goods is free of charge for the consumers.

16 SE: Should there be a lack of spare parts or consumables hampering the use of the goods and the consumer has, at the time of purchase, had good reason to believe that the product would be usable, the product will be considered defect under the rules on factual defects of the goods found in the Consumer Sales Act (1990:932).

17 FR: As manufacturer or importer of tangible goods must inform the business seller (who inform the consumer) of the period during which parts that are essential for use of the goods are likely to be on the market, the manufacturer or importer must provide, within two months, professional sellers or repairers, who request parts essential to the use of goods sold (Article L111-3 of the Consumer code).

18 CY: In Section 16(4) of the Sale of Goods Act there is only a general provision containing that the durability of a good means the reasonable endurance in time and of the use, and includes, where necessary, for the ensurance of the durability, the availability of spare parts, and of specialist technicians.

19 DE: a post-contractual (secondary) duty arises from the principle of good faith according to § 242 BGB and § 241 (2) BGB, which requires spare parts to be available for a certain period of time.

20 IE: S12 of the Sale of Goods and Supply of Services Act 1980 requires spare parts and servicing to be made available for a reasonable period

21 HR: Pursuant to Article 16a of the Trade Act, a trader must store spare parts for the duration of a guarantee period.

22 SI: Art. 20 of the ZVPot provides that the producer of goods for which the guarantee is mandatory shall provide spare parts or consumables for at least three years upon the expiration of the time limit in the guarantee. Although contained in the ZVPot, these rules do not protect specifically consumers, as Art. 21č of the ZVPot provides that these rights are granted also to persons that are not consumers.

23 ES: Art. 116.2 of the RCPA.

24 FI: CPA (38/1978) Chapter 5 Section 32.

25 FR: Art. L. 121-19-4 of the Consumer Code.

26 PT: Derogations of the general rule which provide the liability of the seller even he transfers the performance to a third-party are not possible for B2C contracts because they will be deems as a violation of the duties imposed by the rule of law and order: Art. 800 n°1 and 2 of the Civil Code.

27 RO: Art. 1852 of the civil Code.

28 CZ: Section 1935.

29 IT: Art. 1228 of the It. Civil Code.

30 LU: Art. 1134 of the Civil Code

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.