The general aim of many European e-commerce and e-business regulations is to put contracting partners and especially consumers interacting by means of electronic communication in a similar position to contracting partners who interact in a conventional way (conventional way meaning that contracting partners have face to face contact). This purpose especially shows in regard to the Directive on Consumer Rights, 2011/83/EC. It will  replace  as  of  13  June  2014, the  current  Directive  97/7/EC  on  the  protection  of consumers in respect of distance contracts and the Directive 85/577/EEC to protect consumers in respect of contracts negotiated away from business premises.

The new Directive provides a number of fundamental legal rights for consumers in order to ensure a high level of consumer protection throughout the EU. Some types of contracts are excluded from the provisions of this Directive. One exception for example is the field of online gambling. Further exceptions apply to the right of withdrawal for contracts about goods made to the consumer’s specifications and perishable goods. Contracts for financial services are covered by an own Directive – the so called Distance Marketing of Financial Services Directive 2002/65/EC, which is a systematic duplication of the former Distance Selling Directive to address the requirements of financial services in context with new technologies.

The content of the Directive is divided into six chapters. Chapter one contains common definitions such as "consumer" and "trader" and provides a common set of rules applicable in all Member States.

Chapter 2 contains core information to be provided by traders prior to the conclusion of all consumer  contracts  and  Chapter  3,  which  only  applies  to  distance  and  off-premises contracts, provides specific information requirements and regulates the right of withdrawal. The two most important consumer rights according to Chapter 2 and 3 of the new Directive are:

--- To receive comprehensive information, for example about the main characteristics and price including taxes of the goods, or the identity of the trader before the purchase and a confirmation of that information in a durable medium;

--- To cancel the contract within a minimum of 14 days (with some exceptions). If the trader has not provided the consumer with the information on the right of withdrawal, the withdrawal period is extended to 12 months from the end of the initial withdrawal period.

Chapter 4 contains rules on delivery and passing of risk applicable to contracts for the sale of goods as well as certain rules applicable to all types of consumer contracts. The two most important consumer rights according to Chapter 4 of the new Directive are:

--- The trader shall deliver the goods by transferring the physical possession or control of the goods to the consumer without undue delay, but not later than 30 days from the conclusion of the contract.

--- The risk of loss of or damage to the goods shall pass to the consumer not before he has acquired the physical possession of the goods.

Chapter 5 and 6 finally contain general provisions, e.g. on enforcement and the transposition period for Member States.

As you can see, once more the consumer's rights were strengthened considerably. The question is whether this development is still adequate or has gone too far. From my point of view the latter seems to be the case: Even though there is no doubt that the consumer should be informed properly, this requirement cannot be met by expanding such information duties more and more, because in the end the consumer will not be able any more to detect the  real  important facts  in  the  bulk  of  information he  is  confronted with  (under the mentioned Financial Services Directive alone, the consumer has, for example, to receive information on more than 30 details).[i]

As far as the consumer’s right to withdraw from online-contracts is concerned the extension of the withdrawal period (compared to the former distance selling regulations) is questionable, too, because the right to withdraw as such already puts him in a better position than he would have when concluding the same contract offline where there is no such right. Such privilege might have been justified at the time when it first has been introduced by the Distance Selling Directive, back in 1997, when e-commerce was new and consumers inexperienced. In the meantime purchasing by using electronic means and the internet is as common and normal as buying goods in regular shops. So it would have been worth considering to reduce or even completely abolish such privileges for e-commerce and simply leave the right to withdraw from a contract to the market which is mostly granting such rights on a voluntary basis because consumers simply expect such rights.

The EU has chosen the opposite way and even strengthened the consumer’s right to withdraw, accepting, on the other hand, that traders are, compared to regular business placed in a disadvantageous position.

Against this background the Directive’s distance selling provisions should, where there is doubt, be interpreted rather restrictively. Unfortunately courts throughout Europe handle this issue in quite the opposite way by mostly deciding in favour of consumers.[ii]