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Proposal for a Directive on Certain Aspects Concerning Contracts for the Online and Other Distance Sales of Goods: Scope of Application, Definitions and Conformity

from Part II - Proposals for a Directive on Online and Distance Sales of Tangible Goods and for a Directive on Digital Content

Published online by Cambridge University Press:  21 September 2018

Sanne Jansen
Affiliation:
Institute for the Law of Obligations, KU Leuven, Belgium
Sophie Stijns
Affiliation:
Institute for the Law of Obligations, KU Leuven, Belgium
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Summary

INTRODUCTION

The proposed Directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods (ODSD Proposal) introduces rules about conformity of goods, remedies in case of non-conformity and the modalities to exercise these remedies. In this chapter, we will only address the newly introduced definitions and the aspects concerning conformity. The level of harmonisation will be dealt with by the chapter by Straetmans and Meys in this volume.

We shall point out the differences and the similarities in comparison with the Consumer Sales Directive 1999/44/EC (CSD) and the (abandoned) Regulation on a Common European Sales Law. We will also compare the ODSD Proposal with the Consumer Rights Directive 2011/83/EU (CRD) and national common law of contract. It is important to note, from the start of this chapter, that recital 15 ODSD Proposal states that the rules of the proposal should be applied and interpreted in a manner consistent with the rules of the CSD and the CRD (as interpreted by the case law of the Court of Justice of the European Union), a rule that will provide for more legal certainty and consistency.

SCOPE OF APPLICATION AND DEFINITIONS

SCOPE OF APPLICATION

The scope of the ODSD Proposal is restricted to distance sales contracts of goods concluded between a seller and a consumer (Article 1(1) of the ODSD Proposal). All the terms (‘distance sales contract’, ‘contract’, ‘goods’,‘seller’ and ‘consumer’) used in this description of the scope of application are defined in Article 2, providing a wide range of definitions (see below, Section 2.2).

In comparison, the abandoned proposed regulation on a CESL was not only applicable to distance sales contracts but also more broadly applicable to (all kinds of) sales contracts, contracts for the supply of digital content and related service contracts. The CSD is also more broadly applicable to‘the sale of consumer goods’(Article 1(1) CSD). Of course, adoption and implementation of the ODSD Proposal would mean that the distance sales contract will be excluded from the scope of application of the CSD. This is explicitly mentioned in Article 19 of the ODSD Proposal.

Type
Chapter
Information
Digital Content and Distance Sales
New Developments at EU Level
, pp. 57 - 94
Publisher: Intersentia
Print publication year: 2017

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