On 31 October 2017, the European Commission (the "Commission") published an amended proposal to extend the scope of the proposed Directive on online and other distance sales of goods to cover offline sales as well (Amended proposal for a Directive on certain aspects concerning contracts for the sales of goods, amending Regulation 2006/2004 and Directive 2009/22/EC and repealing Directive 1999/44/EC – the "Amended Proposal").

The initial proposal (Proposal for a Directive on certain aspects concerning contracts for the online and other distance sales of goods), which the Commission adopted on 9 December 2015, sought to harmonise the rules governing certain aspects of the digital economy and foster the Digital Single Market (the "Initial Proposal" – see VBB on Belgian Business Law, Volume 2015, No. 12, p. 9, available at www.vbb.com). At the time, the Commission's initiative was based on the consideration that differences in national contract laws were hindering consumers and businesses from taking full advantage of cross-border online trade in that they lower consumers' trust and raise trade barriers for stakeholders.

While in December 2015 the Commission focused exclusively on online and distance sales and the Digital Single Market Strategy, the Commission had agreed to collect data regarding both online and offline sales of goods, including data collected during the REFIT fitness check of the main EU consumer law Directives (see VBB on Belgian Business Law, Volume 2017, No. 5, p. 9, available at www.vbb.com). These data showed the need to maintain coherent rules for both online and offline sales.

The Amended Proposal therefore pursues the same objective as the Initial Proposal, i.e., that of removing trade barriers by adopting a set of fully harmonised rules, but without distinguishing between sales channels. The Proposal contains rules on the: (i) conformity of the goods; (ii) remedies in the event of lack of conformity; and (iii) practical terms of the exercise of such remedies. The principal features of the Amended Proposal remain unchanged and are as follows:

  • The burden of proof will rest with the seller during a two-year warranty period (this will also apply to second-hand goods);
  • Consumers will conserve their rights even if they do not inform the seller of a defect within a certain period of time; and
  • Consumers will be entitled to terminate the contract if the seller is unable or fails to repair or replace a defective product (even in cases of minor defects).

The changes brought about by the Amended Proposal are mainly technical amendments, such as the deletion of the terms "online and other distance sales" and the inclusion of implementing measures. Nonetheless, the following changes are worth mentioning:

  • Due to the extension of the scope of the Proposal, Directive 1999/44/EC on consumer sales and guarantees will be repealed (instead of being partially amended by the Proposal); and
  • EU Member States will have the possibility of excluding from the scope of the Directive contracts for the sale of second-hand goods sold at public auction.

The Amended Proposal will now be transmitted to the European Parliament and the European Council of Ministers to continue its legislative journey. 

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