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Harmonising offline and online consumer rights in Europe

 

On 2 November 2017 the European Commission (EC) published an amended proposal for a Directive concerning contracts for the sale of goods. The amendments extend the scope of the Directive to apply to rules on quality of goods, remedies for goods and guarantees across all sales channels, not just online or other distance selling channels.

The EC wishes to achieve full harmonisation on consumer rights in order to help European companies to grow globally as well as to generate more trade within the single market. Currently in the UK, standards for goods, remedies for defective and mis-described goods and consumer guarantees are regulated by the Consumer Rights Act 2015 (CRA). However, the rules contained in the proposed Directive differ from the CRA in a number of ways.

Rejecting goods, refunds, repair and replacement

  • Under the proposed Directive consumers would first have to request repair or replacement and can only reject goods if these remedies failed, meaning there is no short time right to reject goods.
  • A trader willing to attempt repair or replacement would only have to do so within a reasonable period of time without causing significant inconvenience to the consumer and one failed attempt at repair would not entitle the consumer to request a refund.
  • A trader can only deduct from a refund a sum which reflects the use of a product where there has been more than regular use. The CRA permits greater deductions in relation to use.

Quality of goods

  • This will likely differ from the CRA, with the draft Directive making no reference to appearance, finish or durability.
  • For defective goods, the period where it is assumed that the defect existed on delivery is 2 years under the proposed Directive, compared to the 6 month period contained in the CRA.
  • The period for bringing a claim for defects is 2 years whereas under UK law consumers can bring a claim for up to 6 years.
  • Where there are known defects, the trader must obtain express acceptance from the consumer. This is a higher threshold in comparison to the CRA where a trader merely needs to draw the defects to the consumer's attention or equally could rely on them being so obvious that a consumer should have noticed them.
  • Unlike the CRA, under the Directive the consumer would have a statutory right to withhold payment until the defect was remedied.

What's next?

The proposal will now be sent to Parliament and the Council. On adoption of the Directive member states have two years to implement it into their national legislation. But for the UK, as the implementation date will fall after the UK has left the EU, it will be up to the UK to decide whether to include the new legislation in UK domestic law. However, if the UK regime diverges from that of the EU, UK businesses and consumers may miss out on the anticipated benefits of harmonization.

With thanks to Hannah Blake for preparing this blog post.