On behalf of international e-commerce law there are a lot of different entities that deal with international trade law. For example there is the UNCITRAL ( United Nations Commissions on International Trade Law) embodied in the United Nations. In this context the UNCITRAL´s report “UNCITRAL Model Law on Electronic Commerce” has to be mentioned.The problem of UNCITRAL is that it cannot produce any binding instruments on international basis. It can only give recommendations for the national regulations of the membership states. The states themselves can choose to follow these “model laws” by UNCITRAL. On the other side there is the WTO (World Trade Organisation), which prepares on behalf of its members international treaties. In Europe, the e-commerce law has been enforced by the European Union – as well as the Counsel of Europe for certain topics like cyber crime. Examples for European legislation are the E-C directive, the Distance Selling Directive, and the E-Privacy Directive. In general, these directives focus on the problems that come along with the so-called “information-society”, like copyrights of software and their protection, problems with databases and personal information and so on.
In Austria the Distant Selling Directive has been transposed into the so-called “Konsumentenschutzgesetz,” with 1.June 2000. The UK Consumer Protection Regulations came into force on 31 October 2000 The provisions of the Distance Selling Directive are only the minimum level of protection laid down by the European Union. Each member state is free to protect its consumers better, but every consumer can rely that he has at least this minimum protection – Art 12 Distance Selling Directive.
Table of Contents
1. The Distant Selling Directive 97/7/EG
1.1. Introduction
1.2. Objective of the Distant Selling Directive
1.3. Applicability of the dsd
1.4. Exemptions to the applicability of the DSD
1.5. Information requirements
1.5.1. Art 4 requirements
1.5.2. Art 5 requirements
1.6. The right of withdrawal
2. An Introduction into the British System
2.1.1. Judicial Precedent
2.1.1.1. Ratio decidendi and obiter dicta
2.1.2. Acts of Parliament
2.1.2.1. Acts of Parliament and European Union Law
2.1.2.2. The effect of an Act of Parliament to case law
3. The Consumer Protection Regulations
3.1. Applicability
3.2. Information Requirements
3.3. The right of withdrawal
4. The „Konsumentenschutzgesetz”
4.1. Applicability
4.2. Informationrequirements
4.2.1. Information and confirmation requirements pursuant to §§ 5c, 5d KSchG
4.2.2. Information requirements pursuant to §5i Abs 2KSchG
4.3. The right of withdrawal
4.3.1. Applicability of §3 KSchG
4.3.2. Right of withdrawal according to the “Fernabsatzgesetz”
5. Bibliography
1. The Distant Selling Directive 97/7/EG
1.1. Introduction
On behalf of international e-commerce law there are a lot of different entities that deal with international trade law. For example there is the UNCITRAL ( United Nations Commissions on International Trade Law) embodied in the United Nations. In this context the UNCITRAL´s report “UNCITRAL Model Law on Electronic Commerce” has to be mentioned[1].The problem of UNCITRAL is that it cannot produce any binding instruments on international basis. It can only give recommendations for the national regulations of the membership states. The states themselves can choose to follow these “model laws” by UNCITRAL. On the other side there is the WTO (World Trade Organisation), which prepares on behalf of its members international treaties[2]. In Europe, the e-commerce law has been enforced by the European Union – as well as the Counsel of Europe for certain topics like cyber crime. Examples for European legislation are the E-C directive, the Distance Selling Directive, and the E-Privacy Directive. In general, these directives focus on the problems that come along with the so-called “information-society”, like copyrights of software and their protection, problems with databases and personal information and so on.
In Austria the Distant Selling Directive has been transposed into the so-called “Konsumentenschutzgesetz,” with 1.June 2000. The UK Consumer Protection Regulations came into force on 31 October 2000
The provisions of the Distance Selling Directive are only the minimum level of protection laid down by the European Union[3]. Each member state is free to protect its consumers better, but every consumer can rely that he has at least this minimum protection[4] – Art 12 Distance Selling Directive[5].
1.2. Objective of the Distant Selling Directive
The Object of the Distant Selling Directive (DSD) is to approximate the laws, regulations and administrative provisions of the EU Member States concerning distance contracts between consumers and suppliers – Art 1
The European legislator wants to protect the consumer from the two systematic disadvantages of distance selling[6].
- the consumer doesn’t know anything about the supplier, not even if the company really exists.
- the consumer doesn’t know the product itself. He can only rely on photos, pictures etc…
The benefit of the DSD for the consumer is quite clear. He can ship the product back easily without difficult regulations if he doesn’t approve it. But what are the advantages for the companies? Means of distance selling open a larger pool of consumers for the company, more so than a local based entrepreneur. Via the Internet the whole world is the potential market. So both contract partners can benefit from the DSD[7].
1.3. Applicability of the dsd
For a start we need to discuss when the rules of the DSD do apply. In general there are considered to be 4 requirements that have to be fulfilled:
1) The DSD is only covering contracts,
2) between Suppliers and Consumers
These are any contracts concerning goods or services concluded between a supplier and a consumer under an organized distance sales or service provision scheme run by the supplier, who for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded – Art 2 (1). Therefore it is an absolute requirement for the application of the DSD that it has to be a Business to Consumer (B2C) relationship[8]. The DSD never applies to Business-to-Business (B2B) or Consumer-to-Consumer (C2C) relationships[9]. A consumer in the context of the DSD is any natural legal person, who is acting for purposes that are outside his business or profession – with non-professional capacity in a commercial surrounding. Freelancers – like advocates, architects etc. – can act professional if they conclude the contract through or in connection with their work, like attorneys or pharmacists. If an attorney buys a rug via Internet for his office he is not protected by the regulations of the DSD, whereas if he buys the same rug for his home place the DSD principal applies.
Suppliers are any natural or legal persons who are acting in their commercial or professional capacity, meaning they are not acting on behalf of private purposes as the consumers do. The company that is concluding the contract has to be the supplier[10].
3) The contract has to be conducted by means of distance communication
The simultaneous physical presence of both parties is not necessary. Therefore the use of distant selling communication may be used for the conclusion of a contract between the customer and the supplier– Art 2(4). A list, indicative of these means of distance communication, is contained in Annex 1 of the DSD. For example: (Un)addressed printer matter, catalogue, radio, e-mail, and television. Then again, quite popular means of distance selling like SMS or webshop are not mentioned because the European legislator wanted create a technology-neutral provision[11]. Therefore as mentioned above the Annex 1 is only indicative. As said before the use of distance communication has to be exclusive, meaning that up to and including the moment in which the contract is concluded there has to be an unbroken chain of means of distance selling communication[12]. The Parties of the contract must not see each other until the conclusion of the contract[13]. The reason for this is simple, if you keep the two systematic disadvantages of distance selling in mind.
4) The supplier must use a special scheme for distance selling
The company must run an organized scheme that it can use to conclude distance-selling contracts. Respectively if only the company wants to participate in the distance sales market[14]. You have to take the complete picture of the individual situation of a company to tell if the characteristics for this scheme are fulfilled. One of these characteristics for this individual approach can be: the company has no shop, but only a storage; special trained staff which go to the consumer, telephone-systems to place orders and so on[15]. Following this example, it should explain the fourth requirement: A baker sales his goods in his shop. A customer tells him that he wants his bread delivered. The baker makes an exception, because it’s a very loyal customer and delivers the bread. In this case, DSD regulations would not apply. Whereas if the baker has a delivery service, two cars, and two employees to deliver his goods he has a special scheme for distance selling and thus fulfils the requirements of the DSD – with the exemption of Art 3 (2), see below.
1.4. Exemptions to the applicability of the DSD
Article 3 of the DSD is divided into two categories of exemptions. First there is Art 3 (1) which states full exemptions were the DSD is not applicable, and second there is Art 3 (2) which is a general exemption to the dsd for some provisions on the DSD.
Art 3 (1) relates to five important kind of contracts where the DSD is not applicable, such contracts related to financial services, contracts concluded by means of automatic vending machines or automatic commercial premises, contracts in connection with communication services (like public-pay-phone cards), real estate contracts, and contracts concluded at an auction. Real-estate contracts have to be registered in a real estate register and have to be attested by a public notary– like in Austria. Not included in this exemption are rental contracts. The exemption of contracts concluded at an auction should protect the seller. If the buyer had a right to withdraw from the contract, according to the DSD, the seller would have legal uncertainty and cannot be sure if he has the right to sell the good again and in this context can never be sure about the exact price he gains. Furthermore it would be against the character of an auction and the consumer is not worthy of the protection of the dsd concidering the typical risk of an auction[16].
Art 3 (2) states that the Art. 4,5,6, and 7(1) are not applicable under two circumstances. First, in connection with contracts for the supply of goods intended for everyday consumption that are delivered to the home of the consumer. Second, for contracts with the provision of accommodation, transport or other leisure services on a specific date or within a specific period. The reason for this exemption should be logical.
1.5. Information requirements
The DSD has two different provisions – Art. 4, 5 for the information requirements by the supplier, which each refer to a different time during the contract negotiations. Art. 4 refers to information the supplier has to grant a “good time” prior to the conclusion of the contract. Art 5 refers to information after the conclusion of the contract during its performance. Once again, these information requirements have to be seen in connection with the systematic disadvantages of distant sales for the consumer. The only thing the consumer can base his decision on is whether to conclude a contract or not from the information the supplier provides him with. Therefore the strict information requirements for the supplier are understandable and reasonable[17].
1.5.1. Art 4 requirements
Art. 4 (1) lit (a)-(i) states different information requirements the supplier has to provide in a clear and comprehensive manner, that has to be appropriate to the means of the distant selling communication used by the supplier. Art 4 (2) states the transparency rule that goes in connection with the information requirements of Art 4 (1). The information must be offered in a structured way, i.e. the delivering costs must be put down in the context with the product price itself. Generally the information has to be put down in a clear and concise manner[18].
[...]
[1] http://eclips.osc.edu/eclips/undocs/model_law.html
[2] SCHULEV-STEINDL Eva, in RASCHAUER Bernhard (Hrsg), Grundriß des österreichischen Wirtschaftsrechst, Wien 1998, recital 56 et sqq.
[3] SCHAUER Bernd, E-Commerce in der Europäischen Union, Wien 1999, page 154.
[4] MADL Peter, Vertragsabschluß im Internet, ecolex 1999, page 80.
[5] Articles not referred to are Articles of the Distance Selling Directive
[6] SCHURR Francesco A., Fernabsatzrecht Kommentar zu §§ 5a bis 5j und § 31a KSchG für Praxis und Ausbildung, Wien 2003, page 78
SCHAUER Bernd, E-Commerce in der Europäischen Union, Wien 1999, page 110 et sqq.
[7] Mottl Ingeborg in MADER Peter [HRSG], Internet und e-commerce, Wien 2000, page 25 et seq.; MOHR Martina, Elektronischer Kauf – Verbraucherschutz im Fernabsatz, ecolex 1999, page 247 et seq.: SCHURR Francesco A., Fernabsatzrecht Kommentar zu §§ 5a bis 5j und § 31a KSchG für Praxis und Ausbildung, Wien 2003, page 31
[8] SCHAUER, Wien 1999, page 150.
[9] SCHURR,Wien 2003, page 51 et seq.
[10] MADL Peter, Vertragsabschluß im Internet, ecolex 1999, page 80.
[11] SCHURR, Wien 2003, page 63.
[12] SCHURR, Wien 2003, page 58.
[13] SCHAUER, Wien 1999, page 150 et seq; MADL, Wien 2003, page 80; SCHURR, Wien 2003, page 36.
[14] SCHAUER, Wien 1999, page 150
[15] SCHURR, Wien 2003, page 59 et sqq.
[16] SCHURR, Wien 2003, page 74 et seq.
[17] MOHR Martina, Elektronischer Kauf – Verbraucherschutz im Fernabsatz, ecolex 1999, page 247
[18] KRESBACH Georg, E-Commerce: nationale und internationale Rechtsvorschriften zum Geschäftsverkehr über elektronische Medien, Wien 2002, page 47; ErläutRV 817 BlfNR XXI GP 23
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