DISTANCE SELLING CONTRACTS
Directive 2011/83/EU was recently transposed into our legal order by Decree-Law 24/2014, of 14 February. This directive was designed to reformulate the provisions applicable to contracts and distance selling contracts entered into outside of commercial establishments, standardising them throughout the European Union, particularly given the growing number of online contracts and the various problems which such contracts raise, namely with regard to the unprotected status of the consumer throughout this process and the need to create mechanisms for trust in the system.
There are three fundamental points to the protection that has been created around the consumer, of which these are usually unaware, which bolster their fragile position and which we make a point of highlighting here: These are:
- after receiving the purchased item (or after entering into the services agreement) the consumer has a 14-day period in which to terminate the contract, without having to pay compensation or give any explanation. It is therefore sufficient for the consumer to send a registered letter with notice of receipt to the supplier stating his/her intention to terminate the contract in order for the contract to lose all its effects. The consumer also has a 14-day period after the sending of the termination notice to return the goods, paying the costs of such a return.
- Upon receiving the notice of the consumer’s intention to terminate the contract, the supplier has a period of just 14 days in which to reimburse the former and may not charge the consumer any costs for this reimbursement.
- Before entering into the contract with the consumer, the supplier is obliged to provide certain information, such as its identity and physical address, warranty and after-sales services, existence of the possibility of terminating the contract, price, statement that the consumer must bear the costs of any return, characteristics of the item or service, delivery expenses, method of calculating rates and taxes, and types of payment and delivery. If this information is not provided, the time period referred to above for the termination of the contract will increase from 14 days to 1 year and 14 days. In addition, any failure to provide information about transport costs, taxes and other rates will result in the consumer being exempted from payment of these costs, taxes and other rates.
- This right of free termination on the part of the consumer is not absolute as there are goods which cannot be returned, owing to their nature, without causing serious loss to the supplier. This is the case with personalised goods, newspapers and magazines, electronic goods when the tamper-free guarantee seal has been broken by the consumer, betting and lottery services, goods which deteriorate rapidly after return, etc. In this case, the consumer may not terminate the contract after it has been entered into lawfully without a legal justification for doing so, that is to say, mere regret is not enough to return such a product to the supplier.
Apart from all of the above, the supplier of the item/service in question also has to confirm the contract within 5 days, sending to the consumer a hard copy of the conditions of sale in Portuguese, in which all the compulsory information must be stated.
The site where the item/service is acquired must expressly state any territorial or other constraints on the conclusion of the contract. The prior express authorisation of the consumer is also necessary for the sending of unsolicited communications.
The new Decree-Law also imposes provisions applicable to the automatic sale of products. The more important provisions concern the fact of the automatic equipment allowing the refund of the price paid if the product is not supplied. If the machine does not allow this, the commercial establishment where it is located must refund the price paid.
This directive was prepared with a view to the proper functioning of the internal market, approximating the laws of the Member States, particularly with regard to pre-contractual information, formal requirements and the right of free termination of distance selling contracts and contracts entered into outside of a commercial establishment, establishing to this end the above-mentioned principle of total harmonisation of the benefits that this kind of business brings to trade.
The problem however remains the same: the fragility of consumers vis-à-vis suppliers, which clearly remain in a favourable position in comparison to the former who, most of the time, are not even aware of their rights.
Ana Nobre de Sousa