Pre-Contractual Duties of Information: EU Private Law and the Consumer Rights Directive (4/5)

This is Part IV of my ongoing series of blog posts on the topic of pre-contractual duties of information in English, French and EU contract law.

Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion

“In hardly any other area of the law have European legal acts given such a long lasting impetus to the laws of many Member States”1

A) Pre-contractual information duties under EU law

The European Union is now the main driver in the field of information obligations2. As Rott shows, this is due to the EU’s goal of reducing legal barriers to inter-state trade and to foster competition in the internal market.

EU law has tended to impose very specific information duties, as opposed to more general duties. Such duties are to be found in a number of directives including: the Doorstep Selling Directive (85/577), the Package Travel Directive (90/143), the Unfair Terms Directive (93/13), the Timeshare Directive (94/47), the Distance Selling Directive (97/7), the Price Indications Directive (98/6), and the Consumer Sales Directive (99/44).

B) The Consumer Rights Directive: end-of-the line for maximum harmonisation?

“This Directive establishes rules on information to be provided for distance contracts, off-premises contracts and contracts other than distance and off-premises contracts.“3

The Directive on Consumer Rights (CRD) was adopted by the Council on 25 October 2011. This new directive replaces the directives on distance contracts and on contracts away from business premises, modifies those on consumer sales and unfair contract terms, and of particular interest to this discussion, introduces general information duties for consumer contracts, regardless of the object or situation in which they are concluded.

1) Maximum harmonisation for distance and off-premises contracts

Article 6 of the Directive, introduces information requirements for distance and off-premises contracts. It should be noted that in both instances these contracts must be between a trader and a consumer4). The CRD introduces common information requirements for both types of contracts5, as well as requirements as to the form of the information to be provided6.

The information which must be given in a “clear and comprehensible manner”, is mainly derived from existing directives such as the Distance Selling Directive and includes: the main characteristics of the product, the geographical location and identity of the trader, conditions for delivery, payment information, information about contract termination and rights of withdrawal. Notably, Member States may maintain or introduce language requirements in order to ensure that information is clearly understood by the consumer7.

* Side effects of this harmonisation on general contract law

As this article is aiming for maximum harmonisation, Member States may not impose any further requirements for the fulfilment of the information obligations set out for these kind of contracts. Article 3(5), does, however, state that the Directive shall not affect national general rules of contract law, such as those governing the validity or the formation of the contract, insofar as they are not regulated in the Directive.

As Busch and Domröse observe, this brings up an interesting question as to whether general contract law concepts, such as good faith, may be used to introduce additional information requirements8. To escape these murky waters, Caufmann suggests the question may be construed as to whether the non-disclosure of certain information (beyond the directive’s requirements) would have caused the consumer to enter into the contract and that these principles may, accordingly, be applied9. Concepts such as réticence dolosive would, therefore, be able to live on. This cannot be said of the general obligation de renseignement which has developed through case law, which would have to see its scope restricted, as not all the resulting information duties can be said to relate to the ‘main characteristics of the goods or services’10.

Bearing in mind the above, a report prepared for the Directorate General for Internal Policies, on the potential effects of the Directive on general contract law in Member States, may shed some light on these concerns. It gives the example of a number of duties which will only be able to be maintained for persons not acting as consumers, for the purpose of these contracts, such as: information about legal restrictions on the use of the products or information as to certain dangers associated with the product, which are not necessarily ‘main characteristics’11.

2) Minimum harmonisation for other business to consumer contracts

Article 5 of the Directive, introduces information requirements for all other consumer contracts which do not fall under article 6 and are not excluded from its scope by article 3 (such as, for example, contracts for the transfer of property, or for financial services). Furthermore, per article 5(3) Member States are not required to apply these requirements to contracts involving ‘day-to-day transactions’ which are ‘performed immediately at the time of their conclusion’.

As this particular article is not aiming for maximum harmonisation, Member States are free to introduce or maintain additional requirements per article 5(4).

3) Much ado about nothing?

The Draft Common Frame of Reference, a merger of the acquis and the PECL12,  represents a useful benchmark against which to evaluate the CRD13. The contrast between the DCFR and the CRD is stark, whereas article II-3:101 DCFR provides for a general duty of disclosure and article II-3:103 recognises a duty “to provide information when concluding a contract with a consumer who is at a particular disadvantage”, the CRD’s maximum harmonisation only affects “information requirements for distance and off-premises contracts”.

Similarly, the DCFR in article II-3:107 expressly sets out remedies (which include damages under art II-3:501) for the breach of pre-contractual information duties, whereas in the CRD, with the exception of “additional charges”, remedies are largely left to the applicable law14.

On the whole, it is clear that the directive bears little resemblance to the Commission’s original plan of a broad regime of maximum harmonisation in the consumer sphere15. This approach does have the advantage of allowing Member States to retain or adopt higher levels of consumer protection, which would not be possible in the case of undifferentiated full harmonisation16.

As Busch and Domröse convincingly argue, the fate of the Directive mirrors the change in European Consumer policy, which now favours a move from ‘harmonisation’ to ‘complementation’17.

  1. Reiner Schulze, ‘Precontractual Duties and Conclusion of Contract in European Law’ [2005] 6 European Review of Private Law at 847 []
  2. Christian Twigg-Flesner, ‘Information duties’ in Hans Schulte-Nölke, Christian Twigg-Flesner and Martin Ebers (eds.), EU Consumer Law Compendium (Sellier European Law Publishers 2008) 758-789 []
  3. “Consumer Rights Directive” – Recital 9 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights []
  4. Consumer Rights Directive, articles 2(7) and 2(8 []
  5. Consumer Rights Directive, article 6 []
  6.  Consumer Rights Directive, articles 6 and 7 []
  7. Consumer Rights Directive, article 6(7) []
  8. Christoph Busch and Ronny Domröse, ‘From a Horizontal Instrument to a Common European Sales Law: The Development of European Consumer and Market Law in 2011’ [2012] 1 Journal of European Consumer and Market Law  49 []
  9. Caroline Cauffman, ‘The Consumer Rights Directive Adopted’ [2012] at 3 []
  10. Frank Alleweldt, Peter Rott, Christian Twigg-Flesner and Senda Kara, ‘Information Requirements in the Consumer Rights Directive Proposal and in Other Directives’ [2010] at 16-17 []
  11. Ibid. at 17 []
  12. Castronovo C, ‘Information Duties and Precontractual Good Faith’ [2009] 4 European Review of Private Law at 562 []
  13. Communication from the Commission, COM [2004] 651; but see: Green Paper from the Commission on policy options for progress towards a European Contract Law for consumers and businesses, COM [2010] 348 []
  14. Ibid.; Horst Eidenmüller, Florian Faust, Hans Christoph Grigoleit, Nils Jansen, Gerhard Wagner and Reinhard Zimmermann, ‘Towards a Revision of the Consumer-acquis’ [2011] Common Market Law Review at 15; Christoph Busch and Ronny Domröse, ‘From a Horizontal Instrument to a Common European Sales Law: The Development of European Consumer and Market Law in 2011’ [2012] 1 Journal of European Consumer and Market Law at 50 []
  15. Ewoud Hondius, ‘The Proposal for a Directive on Consumer Rights: The Emperor’s New Clothes’, [2011] 2 European Review of Private Law at 163 []
  16. Cauffman C, ‘The Consumer Rights Directive Adopted’ [2012] at 6 []
  17. Christoph Busch and Ronny Domröse, ‘From a Horizontal Instrument to a Common European Sales Law: The Development of European Consumer and Market Law in 2011’ [2012] 1 Journal of European Consumer and Market Law at 50 []