Example of coding

TABLE OF CONTENTS

 

Introduction

European level: factors coded

National level: factors coded

Limitations

Coding method 

Example of coding

Visualisation

Example of Coding (National Level – Doorstep Selling Directive)

  1. National transposition technique

The manner in which the national transposition technique is analysed focuses on dividing national instruments into two categories: (i) civil codes; and (ii) specialized codes and satellite laws. On the one hand, the category ‘civil codes’ is self-evident and only covers transpositions that are embedded in the existing civil codes. On the other hand, the category ‘specialized codes and satellite laws’ encompasses the wide range of codification projects undertaken at national level that are focused on consumer law: consumer codes, economic codes, special laws etc. This category refers to the rules that exist outside of the main codification projects.

An overview of the various instruments used to transpose the Doorstep Selling Directive follows below. It must be borne in mind that many subsequent legislative changes have taken place in the majority of the Member States, in the aftermath of the adoption and entry into force of the Consumer Rights Directive. The addition of the most recent legislative developments to the present section was not necessary, given that the focus here lies on trying to understand how the factors included in the numerical comparison look like when applied to legislation. To ensure methodological consistency, but also to bring clarity to the factors belonging to the Convergence Index, only the initial transposition provisions are considered. An overview of the transposition techniques can be consulted below in the Initial National Transposition Techniques table, followed by a graph aimed at the visual representation of this transposition.

Member State and transposition technique

Belgium – Loi du 14/07/1991 sur les pratiques du commerce et sur l’information et la protection du consommateur (Wet van 14/07/1991 betreffende de handelspraktijken en de voorlichting en bescherming van de consument)

France – Loi Numéro 72-1137 du 22/12/1972 relative à la protection des consommateurs en matière de démarchage et de vente à domicile; Loi Numéro 89-421 du 23/06/1989 relative à l’information et à la protection des consommateurs ainsi qu’à diverses pratiques commerciales

Germany – Gesetz über den Widerruf von Haustürgeschäften und ähnlichen Geschäften

Ireland – European Communities (Cancellation of Contracts negotiated away from business premises) Regulations 1989

Netherlands – Colportagewet

Romania – Ordonanţa Guvernului nr. 106/1999 privind contractele încheiate în afara spaţiilor comerciale; Lege nr. 60/2002 pentru aprobarea Ordonanţei Guvernului nr. 106/1999 privind contractele încheiate în afara spaţiilor comerciale

United Kingdom – The Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987

This Directive shows that all national legislators provide consumers with protection in case of contracts negotiated away from business premises by means of imposing rules that are separate from their existing regimes on the law of obligations. One factor that might explain this tendency, especially when seen in comparison with the rest of the Directives analysed here (see next sub-chapters), might be the fact that the Doorstep Selling Directive is the first consumer directive with a contractual ambit. For this reason, it can be stated that Member States did not have enough experience with the implementation of consumer protection rules in the field of contract law, which inherently touches upon already existing contractual regimes.

 

2. Reception of selected novel concepts

The most important concept that originated from the Doorstep Selling Directive is the right of cancellation: consumers are to ‘renounce the effects of his undertaking by sending notice within a period of not less than seven days from receipt by the consumer of the notice referred to in Article 4, in accordance with the procedure laid down by national law’. Making use of the right of cancellation entails that consumers shall be released from any of their obligations under the contract. From the point of legal convergence, the right of cancellation is one of the earliest European innovations in terms of consumer contract law – a right that is independent from other remedies existing under national law and that has an autonomous identity.

In the case of the Doorstep Selling Directive, there is one fundamental novel concept that has been identified, namely the right of cancellation. As we will see, this right will have a similar meaning and ambit as the right of withdrawal under the Distance Selling Directive, even though the European legislator has termed the two differently. In this circumstance, the right of cancellation/right of withdrawal points to an issue that can affect the convergence process: inconsistencies in legislation at European level. Should any such inconsistencies be determined, their presence will be taken into account when measuring the harmonisation factors in the next chapter. A transposition table is available below.

Member State – Directive version in original language and implementation form

Belgium – droit de résilier le contrat/het recht de overeenkomst op te zeggen – droit de renoncer/ het recht [om zonder kosten […] zijn aankoop] af te zien

France – droit de résilier le contrat – faculté de renonciation

Germany – Widerrufsrecht – Recht auf Widerruf

Ireland – right of cancellation – cancellation

Netherlands – het recht de overeenkomst te opzeggen – de overeenkomst te ontbinden

Romania – dreptul de a rezilia contractul – dreptul de a denunța unilateral contractul

United Kingdom – right of cancellation – right to cancel the contract

From the perspective of legal convergence, the Doorstep Selling Directive is a complicated instrument. This is because being an early attempt at regulating consumer contract law in a very narrow field of interest, it has a fundamental deficiency: it does not clarify what role European rules play vis-à-vis what Member States had already provided for in their default regimes. There are two ways in which this lack of clarity can be determined: by looking at the terminology used in the Directive itself, and by looking at how Member States understood to implement it.

To address the first point, in Article 4 of the Directive, the English version speaks about the ‘right of cancellation’, and not the common law notion of rescission, which can be considered to create a new ground for consumer claims in the case of contracts concluded away from business premises. This becomes clear in the Preamble of the Doorstep Selling Directive, where not only is the cancellation right affirmed, but it is equally given a very specific content: ‘the consumer should be given a right of cancellation over a period of at least seven days in order to enable him to assess the obligations arising under the contract’.[10]In other words, the European legislator identified a specific area where it considered action was necessary in order to protect consumers, and has set up a specific right to reflect this protection. However, other versions of the Directive do not use terminology that shows the equivalent of this novel right. For instance the French version of the Doorstep Selling Directive uses ‘droit de résilier’. In comparison, the French version of the Distance Selling Directive, which we will analyse later in this chapter, and which builds on this right of cancellation (and renames it as a withdrawal right), speaks about ‘droit de rétractation’. The main difference is that while the latter reflects the individual identity of the European consumer right of withdrawal, the first is translated by using national concepts such as termination.[11]By overlapping termination with withdrawal from the contract, it becomes unclear what legal nature of the cancellation right has, and moreover, whether there is any hierarchy between default rules and consumer protection. The same issue can be found in the Dutch and Romanian versions of the Directive.

Secondly, it can be seen in Table 2 that some Member States have not followed the specific language version terminology when transposing the cancellation right: the French as well as the Belgian legislators (both the French and Dutch versions of the Market Practices Law) have used concepts that have an individual identity and showcase the special nature of European consumer protection. The Netherlands and Romania, on the other hand, chose to stay close to the specific language versions of the Directive that pose the issues addressed under the first point of this discussion. Germany, Ireland and the United Kingdom followed the Directive closely as well.

Another aspect that has already been briefly hinted at is how this Directive interacts with the Distance Selling Directive. The two instruments are rather similar in that they create the same consumer right for specific types of situations. The common factor is thus not only the fact that both Directives set up a cancellation/withdrawal right, but also that the choice of contracts in which this right is offered is guided by the same rationale: the consumer is not in a normal purchasing environment on the premises of the trader, where he has informational advantages, but he is either home or away from business premises and is physically approached by the trader (doorstep selling), or he has not had any physical contact with the seller at all (distance selling). From the convergence perspective, problems start occurring when the European legislator does not take these similarities into account and does not take measures to clarify that it is indeed the same right. Luckily, the Consumer Rights Directive is proof of this awareness; it does not only bring national legislation to the same level by virtue of maximum harmonisation, but it also harmonises European terminology and it brings full equivalence between the withdrawal right in the Distance Selling Directive and the cancellation right in Doorstep Selling.

 

3. Reception of selected open-ended norms

No open-ended norms have been identified in Article 5. This factor will thus have to be normalized when coding the Convergence Index. Simply put, normalization is a statistical procedure that aims that the selected indicators of a composite index are not overrepresented and that individual indicators are comparable. In this case, normalization is done by adding an average value for all Member States, calculated on the bases of the minimum and maximum values this factor can have.

 

4. Timely transposition

According to Article 9, the transposition deadline was 24 months from the publication of the Directive, thus 31 December 1987. An overview of how Member States complied with this deadline is available below.

Member State – National legislation – Transposition date – Timely transposition

Belgium – Law of 14 July 1991 on Commercial Practices and Information and Consumer Protection – 14 July 1991 – No

France – L. Article 121-21 et seqq. Consumer Code – 29 June 1989 – No

Germany – Doorstep Selling Cancellation Act – 1 May 1986 – Yes

Ireland – European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations, 1989 – 1 November 1989 – No

Netherlands – Law on Doorstep Selling – Modification of 26 July 1989 – No

Romania – Government Ordinance regarding consumers contracts negotiated away from business premises no. 106/1999 – 30 September 1999 – Yes

United Kingdom – Consumer Protection (Cancellation of Contracts concluded away from business premises) Regulations 1987 – 1 July 1988 – No

 

5. Infringement procedures

No infringement procedures were identified for this Directive.

 

6. Reference to European law in end legislation

The table below shows an overview of legislation as it appears in the indicated databases. As indicated above,[13]the selection of the databases has not been made with a view to capturing the formal aspects of publishing legislation, but rather because of the practical reliance on online sources by legal practitioners.

Member State – National legislation – Reference to European law – Database

Belgium – Loi du 14/07/1991 sur les pratiques du commerce et sur l’information et la protection du consommateur (Wet van 14/07/1991 betreffende de handelspraktijken en de voorlichting en bescherming van de consument) – No – Ejustice

France – Article L. 121-21 et seqq. C.Cons. – No – Legifrance

Germany – Doorstep Selling Cancellation Act – No – Beck-Online

Ireland – European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations, 1989 – Yes – Irish Statute Book (Office of the Attorney General)

Netherlands – Law on Doorstep Selling – No – Overheid

Romania – Government Ordinance regarding consumers contracts negotiated away from business premises no. 106/1999 – Yes – Lege 5

United Kingdom – Consumer Protection (Cancellation of Contracts concluded away from business premises) Regulations 1987 – No – The National Archives