The Consumer Rights Directive and its impact
The EU Consumer Rights Directive aims to achieve a high level of consumer protection through the harmonization of legal and administrative provisions in the member states of the European Union and thus contribute to the proper functioning of the European internal market. In terms of content, the transposition of the EU Consumer Rights Directive into German law has expanded consumer protection in particular by extending the consumer protection provisions to contracts between companies and consumers as a whole. A whole series of contracts and contract types are covered by these new regulations for the first time, the core of which has been incorporated into the law in Sections 312 et seq. BGB have been incorporated into the law. The innovations include stricter information obligations for traders and extended options for contract revocation. The provisions on the obligation to bear the costs of returning goods by mail order and the requirements for the consumer's declaration of withdrawal have also been revised.
The regulations on the trader's duty to provide information and the consumer's (extended) right of withdrawal have been incorporated into the law in Sections 312 et seq. BGB have been incorporated into the law. Section 312 (1) BGB sets the initial course. In accordance with the rule-exception principle, the provision initially subjects all contracts against payment between a trader and a consumer to the comprehensive consumer protection rules. However, § 312 Para. 2 BGB excludes some important areas from these regulations. This affects, for example, notarized contracts, contracts for the purchase of land, the construction of new buildings or the significant conversion of existing buildings and, in particular, everyday cash transactions in which the services are provided and paid for immediately and do not exceed EUR 40.00.
Unlike previously, the place of conclusion of the contract is of decisive importance in answering the question of the cases in which the consumer has a right of withdrawal. Whereas under the previous legal situation, the consumer had a right of withdrawal in particular for doorstep selling and distance selling (online trading etc.), the consumer now has a right of withdrawal for all contracts concluded outside of business premises. According to the new legal situation, it no longer matters if the consumer has invited the trader to their premises, e.g. as part of a consultation, provided that the contract or at least the consumer's binding offer is concluded or submitted outside of business premises. However, the legislator has also defined a number of exceptions to the principle of the existence of a consumer's right of withdrawal in Section 312g in accordance with the rule-exception principle set out in Section 312g (1) BGB. This applies in particular to goods individually manufactured to the consumer's specifications, perishable goods, sealed images, sound or data carriers and subscription contracts. The new regulations contain a special feature with regard to repair or maintenance work. If, for example, the consumer calls a craftsman's business to have an urgent repair or maintenance work carried out, he has no right of withdrawal in accordance with Section 312 g (2) No. 12 BGB. However, this only applies to the repair or maintenance itself. If the trader carries out further work on this occasion or supplies parts that are not immediately required as spare parts for the repair, the consumer still has a right of withdrawal with regard to these services and goods.
The withdrawal period is generally 14 days. However, it only begins to run once the trader has fulfilled his extensive information obligations towards the consumer. Here, the legislator has introduced a model withdrawal policy. The legislator has also introduced a model withdrawal form for the first time. The consumer can use this, but does not have to. It remains to be seen whether the courts will consider the model form provided by the legislator to be sufficient. An end-of-term rule for exercising the right of withdrawal has also been newly introduced. In contrast to the previous legal situation, the right of withdrawal is not retained indefinitely or within the (blurred) limits of forfeiture if the consumer has not been informed or has been informed incorrectly. It finally expires 12 months and 14 days after conclusion of the contract.
The law has brought an innovation in favor of entrepreneurs in the area of distance selling. In future, the direct costs of returning goods in distance selling transactions are to be borne by the consumer if the consumer was properly informed of this when the contract was concluded.
The transposition of the Consumer Rights Directive into German law on 13.06.2014 initially means a considerable amount of work for traders in particular, who should review their general terms and conditions and the forms they use in order to comply with the numerous standardized information obligations. Particularly in the online business, which is prone to warnings, this should be implemented quickly.
Status: 13.06.2014