Legal provisions of COM(2022)204 - Amendment of Directive 2011/83/EU concerning financial services contracts concluded at a distance - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)204 - Amendment of Directive 2011/83/EU concerning financial services contracts concluded at a distance. |
|---|---|
| document | COM(2022)204  |
| date | November 22, 2023 |
Contents
Article 1 - Amendments to Directive 2011/83/EU
(1) Article 3 is amended as follows:
(a) the following paragraph (1b) is inserted:
‘(1b) ‘Articles 1 and 2, Article 3(2), (5) and (6), Article 4, Articles 16a to 16e, Article 19, Articles 21 to 23, Article 24(1), (2), (3) and (4) and Articles 25 and 26 shall apply to distance contracts concluded between a trader and a consumer for the supply of financial services.
Where contracts referred to in the first subparagraph comprise an initial service agreement followed by successive operations or a series of separate operations of the same nature performed over time, the provisions referred to in the first subparagraph shall apply only to the initial agreement.
(b) in paragraph 3, point (d) is replaced by the following:
‘(d) for financial services, not covered by Article 3(1b).’
(2) The following Chapter is inserted:
‘CHAPTER IIIa
RULES CONERNING FINANCIAL SERVICES CONTRACTS CONCLUDED AT A DISTANCE
Article 16 - a Information requirements for distance contracts for consumer financial services
1. Before the consumer is bound by a distance contract, or any corresponding offer, the trader shall provide the consumer with the following information, in a clear and comprehensible manner:(a)the identity and the main business of the trader;
(b)the geographical address at which the trader is established as well as the trader’s telephone number and email address; in addition, where the trader provides other means of online communication which guarantee that the consumer can keep any written correspondence, including the date and time of such correspondence, with the trader on a durable medium, the information shall also include details of those other means; all those means of communication provided by the trader shall enable the consumer to contact the trader quickly and communicate with him efficiently; where applicable, the trader shall also provide the geographical address and identity of the trader on whose behalf he is acting;
(c)if different from the address provided in accordance with point (b), the geographical address of the place of business of the trader, and, where applicable, that of the trader on whose behalf he is acting, where the consumer can address any complaints;
(d)where the trader is registered in a trade or similar public register, the trade register in which the trader is entered and the registration number or an equivalent means of identification in that register;
(e)where the trader's activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority;
(f)a description of the main characteristics of the financial service;
(g)the total price to be paid by the consumer to the trader for the financial service, including all related fees, charges and expenses, and all taxes paid via the trader or, when an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it;
(h)where applicable, that the price was personalised on the basis of automated decision-making;
(i)where relevant notice indicating that the financial service is related to instruments involving special risks related to their specific features or the operations to be executed or whose price depends on fluctuations in the financial markets outside the trader's control and that historical performances are no indicators for future performances;
(j)notice of the possibility that other taxes and/or costs may exist that are not paid via the trader or imposed by him;
(k)any limitations of the period for which the information provided is valid;
(l)the arrangements for payment and for performance;
(m) any specific additional cost for the consumer of using the means of distance communication, if such additional cost is charged;
(n)where applicable, a brief description of the risk-reward profile;
(o)where applicable, information on any environmental or social objectives targeted by the financial service;
(p)the existence or absence of a right of withdrawal and, where the right of withdrawal exists, its duration and the conditions for exercising it including information on the amount which the consumer may be required to pay, as well as the consequences of non-exercise of that right;
(q)the minimum duration of the distance contract in the case of financial services to be performed permanently or recurrently;
(r)information on any rights the parties may have to terminate the contract early or unilaterally by virtue of the terms of the distance contract, including any penalties imposed by the contract in such cases;
(s)practical instructions for exercising the right of withdrawal indicating, inter alia, the address or email address to which the notification of a withdrawal should be sent and for financial contracts concluded by electronic means, information about the existence and placement of the withdrawal button, referred to in Article 16d;
(t)any contractual clause on law applicable to the distance contract and/or on competent court;
(u)in which language, or languages, the contractual terms and conditions, and the prior information referred to in this Article are supplied, and furthermore in which language, or languages, the trader, with the agreement of the consumer, undertakes to communicate during the duration of this distance contract;
(v)where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it.
2. In the case of telephone communications, the identity of the trader and the commercial purpose of the call initiated by the trader shall be made explicitly clear at the beginning of any conversation with the consumer.
Where the consumer explicitly agrees to continue the telephone communications, by way of derogation from paragraph 1, only the information referred to in points (a), (f), (g), and (p) of that paragraph needs to be provided.
The trader shall inform the consumer of the nature and the availability of the other information referred to in paragraph 1 and shall provide that information when fulfilling obligations under paragraph 3.
3. The trader shall provide the information referred to in paragraph 1 at least one day before the consumer is bound by any distance contract.
When the information referred to in paragraph 1 is provided less than one day before the consumer is bound by the distance contract, Member States shall require that the trader sends a reminder, on a durable medium, to the consumer of the possibility to withdraw from the distance contract and of the procedure to follow for withdrawing, in accordance with Article 16b. That reminder shall be provided to the consumer, at the latest, one day after the conclusion of the distance contract.
4. The information referred to in paragraph 1 shall be made available to the consumer on a durable medium and laid out in a way that is easy to read, using characters of readable size.
Except for the information referred to in paragraph 1, points (a), (f), (g), and (p), the trader shall be permitted to layer the information where it is provided by electronic means.
In case the trader decides to layer the information, it shall be possible to print the information referred to in paragraph 1 as one single document.
Where colours are used to provide the information referred to in paragraph 1, they shall not diminish the comprehensibility of the information if the key information document is printed or photocopied in black and white.
The information referred to in paragraph 1 shall be made available upon request in an appropriate format to consumers with a visual impairment.
5. As regards compliance with the information requirements laid down in this Article, the burden of proof shall be on the trader.
6. Where another Union act governing specific financial services contains rules on the information to be provided to the consumer prior to the conclusion of the contract, only the pre-contractual information requirements of that Union act shall apply to those specific financial services, unless provided otherwise in that act.
Article 16 - b Right of withdrawal from distance contracts for financial services
1. The Member States shall ensure that the consumer shall have a period of 14 calendar days to withdraw from a contract without penalty and without giving any reason.The period for withdrawal referred to in the first subparagraph shall begin from one of the following days:
(a)the day of the conclusion of the distance contract,
(b)the day on which the consumer receives the contractual terms and conditions and the information in accordance with Article 16a, if that is later than the date in point (a) of this subparagraph.
2. The right of withdrawal shall not apply to the following:
(a)consumer financial services whose price depends on fluctuations in the financial market outside the traders control, which may occur during the withdrawal period, such as services related to:
–foreign exchange;
–money market instruments; transferable securities;
–units in collective investment undertakings;
–financial-futures contracts, including equivalent cash-settled instruments;
–forward interest-rate agreements (FRAs);
–interest-rate, currency and equity swaps;
–options to acquire or dispose of any instruments referred to in this point including equivalent cash-settled instruments. This category includes in particular options on currency and on interest rates;
–crypto-assets as defined in [Article 3(1)(2) of Commission Proposal for a Regulation of the European Parliament and of the Council on Markets in Crypto-assets, and amending Directive (EU) 2019/193 24.9.2020 COM(2020) 593 final].
(b)travel and baggage insurance policies or similar short-term insurance policies of less than one month's duration;
(c)contracts whose performance has been fully completed by both parties at the consumer's express request before the consumer exercises his right of withdrawal.
3. The consumer shall have exercised his right of withdrawal within the withdrawal period referred to in paragraph 1 if the communication concerning the exercise of the right of withdrawal is sent or the withdrawal button referred to in paragraph 5 is activated by the consumer before that period has expired.
4. This Article shall be without prejudice to any rule of national law establishing a period of time during which the performance of the contract may not begin.
5. Member States shall ensure that, for distance contracts concluded by electronic means, the trader provides a possibility to use a withdrawal button in order to facilitate the consumer’s exercise of the right of withdrawal. Such button shall be clearly labelled with the words ‘Withdraw from Contract’ or a corresponding unambiguous formulation.
The withdrawal button shall be placed in a prominent manner and permanently available during the entire withdrawal period on the same electronic interface as the one used to conclude the distance contract. In addition, the trader may also provide the withdrawal button through another channel.
The trader shall ensure that the activation of the withdrawal button results in an instant confirmation notice to the consumer that the right of withdrawal has been exercised, which shall include the date and time of the exercise of the right of withdrawal. Confirmation of the exercise of the right of withdrawal shall be provided by the trader to the consumer on a durable medium.
6. Where another Union act governing specific financial services contains rules on the exercise of the right of withdrawal, only the right of withdrawal rules of that Union act shall apply to those specific financial services, unless provided otherwise in that act.
Article 16 - c Payment of the service provided before withdrawal
1. Where the consumer exercises the right of withdrawal under Article 16b, the consumer may only be required to pay, without any undue delay, for the service actually provided by the trader in accordance with the distance contract. The amount payable shall not:(a)exceed an amount which is in proportion to the extent of the service already provided in comparison with the full coverage of the distance contract;
(b)in any case be such that it could be construed as a penalty.
2. The trader may not require the consumer to pay any amount on the basis of paragraph 1 of this Article unless the trader can prove that the consumer was duly informed about the amount payable, in conformity with Article 16a(1), point (p). However, in no case may the trader require such payment if the trader has commenced the performance of the contract before the expiry of the withdrawal period provided for in Article 16b(1) without the consumer's prior request.
3. The trader shall, without any undue delay and no later than within 30 calendar days, return to the consumer any sums the trader has received from him in accordance with the distance contract, except for the amount referred to in paragraph 1. This period shall begin from the day on which the trader receives the notification of withdrawal.
4. The consumer shall return to the trader any sums he or she has received from the trader without any undue delay and no later than within 30 calendar days. This period shall begin from the day on which the consumer withdraws from the contract.
Article 16 - d Adequate explanations
1. Member States shall ensure that traders are required to provide adequate explanations to the consumer on the proposed financial services contracts that make it possible for the consumer to assess whether the proposed contract and ancillary services are adapted to his or her needs and financial situation. The explanations shall include the following elements:(a)the required pre-contractual information;
(b)the essential characteristics of the proposed contract, including the possible ancillary services;
(c)the specific effects that the proposed contract may have on the consumer, including the consequences of payment default or late payment by the consumer.
2. Paragraph 1 shall also apply to explanations provided to the consumer, when using online tools such as live chats, chat bots, roboadvice, interactive tools or similar approaches.
3. Member States shall ensure that, in case the trader uses online tools, the consumer shall have a right to request and obtain human intervention.
4. Where another Union act governing specific financial services contains rules on the information to be provided to the consumer prior to the conclusion of the contract, paragraphs 1 to 3 of this Article shall not apply.
Article 16 - e Additional protection regarding online interfaces
Without prejudice to Directive 2005/29/EC of the European Parliament and of the Council 24 and Council Directive 93/13/EEC 25 , Member States shall adopt measures requiring that traders, when concluding financial services contracts at a distance, do not use the structure, design, function or manner of operation of their online interface in a way that could distort or impair consumers’ ability to make a free, autonomous and informed decision or choice.Article 2 - Transposition
They shall apply those provisions from [the date after 24 months from adoption].
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions in national law which they adopt in the field covered by this Directive.
Article 3 - Repeal
References to the repealed Directive shall be construed as references to Directive 2011/83/EU, as amended by this Directive, and shall be read in accordance with the correlation table set out in the Annex to this Directive.