EU concerning financial services contracts concluded at a distance - Main contents

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dossier	COM(2022)204 - Amendment of Directive 2011/83/EU concerning financial services contracts concluded at a distance.
document	COM(2022)204
date	November 22, 2023

Article 1

Amendments to Directive 2011/83/EU

Directive 2011/83/EU is amended as follows:

(1)

Article 3 is amended as follows:

(a)

the following paragraph is inserted:

‘1b. In the case of distance contracts concluded between a trader and a consumer for the supply of financial services, only Articles 1 and 2, Article 3(2), (5) and (6), Article 4, Article 6a, Article 8(6), Article 11a, Articles 16a to 16e, Article 19, Articles 21 to 23, Article 24(1) and (6), Articles 25 to 27 and Article 29 shall apply.

With the exception of Article 21, where contracts referred to in the first subparagraph comprise an initial service agreement followed by successive operations, or a series of separate operations, of the same nature, performed over time, the provisions referred to in the first subparagraph shall apply only to the initial agreement.

In the event that there is no initial service agreement but the successive operations, or separate operations, of the same nature performed over time are performed between the same contractual parties, Articles 16a and 16d shall apply only to the first operation.

Where, however, no operation of the same nature is performed for more than one year, the next operation will be deemed to be the first in a new series of operations and, accordingly, Articles 16a and 16d shall apply.’

;

(b)

in paragraph 3, point (d) is replaced by the following:

‘(d)	for financial services not covered by Article 3(1b);’;

(2)

in Article 6(1), point (h) is replaced by the following:

‘(h)

where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with Article 11(1), as well as the model withdrawal form set out in Annex I(B), and, where applicable, information about the existence and placement of the withdrawal function referred to in Article 11a;’;

(3)

the following Article is inserted:

‘Article 11a

Exercise of the right of withdrawal from distance contracts concluded by the means of an online interface

1. For distance contracts concluded by the means of an online interface, the trader shall ensure that the consumer can also withdraw from the contract by using a withdrawal function.

The withdrawal function shall be labelled with the words “withdraw from contract here” or an unambiguous corresponding formulation in an easily legible way. The withdrawal function shall be continuously available throughout the withdrawal period. It shall be prominently displayed on the online interface and easily accessible to the consumer.

2. The withdrawal function shall enable the consumer to send an online withdrawal statement informing the trader of his or her decision to withdraw from the contract. That online withdrawal statement shall enable the consumer to easily provide or confirm the following information:

(a)	his or her name;

(b)	details identifying the contract from which he or she wishes to withdraw;

(c)	details of the electronic means by which the confirmation of the withdrawal will be sent to the consumer.

3. Once the consumer has completed the online withdrawal statement in accordance with paragraph 2, the trader shall enable the consumer to submit it to him by means of a confirmation function.

That confirmation function shall be labelled in an easily legible manner, and only with the words “confirm withdrawal” or with an unambiguous corresponding formulation.

4. Once the consumer activates the confirmation function, the trader shall send to the consumer an acknowledgement of receipt of the withdrawal on a durable medium, including its content and the date and time of its submission, without undue delay.

5. The consumer shall be considered to have exercised his or her right of withdrawal within the relevant withdrawal period if he or she submitted the online withdrawal statement referred to in this Article before that period expired.’

;

(4)

the following Chapter is inserted:

‘ CHAPTER IIIa

Rules concerning financial services contracts concluded at a distance

Article 16a

Information requirements for distance contracts for consumer financial services

1. In good time before the consumer is bound by a distance contract, or any corresponding offer, the trader shall provide the consumer, in a clear and comprehensible manner, with the following information:

(a)	the identity and the main business of the trader and, where applicable, the identity and the main business of the trader on whose behalf he is acting;

(b)

the geographical address at which the trader is established as well as the trader’s telephone number and email address, or details of any other means of communication offered by the trader and, where applicable, those of the trader on whose behalf he is acting; all those means of communication offered by the trader shall enable the consumer to contact the trader quickly and to communicate with him efficiently and guarantee that the consumer can keep any written correspondence with the trader on a durable medium;

(c)	relevant contact details enabling the consumer to address any complaints to the trader, and, where applicable, to the trader on whose behalf he or she is acting;

(d)	where the trader is registered in a trade or similar public register, the register in which the trader is entered and the registration number or an equivalent means of identification in that register;

(e)	where the trader’s activity is subject to an authorisation scheme, the name, address, website and any other contact information of the relevant supervisory authority;

(f)	a description of the main characteristics of the financial service;

(g)	the total price to be paid by the consumer to the trader for the financial service, including all related fees, charges and expenses, and all taxes paid via the trader or, when an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it;

(h)	where applicable, information on the consequences of late or missed payments;

(i)	where applicable, that the price was personalised on the basis of automated decision-making;

(j)

where applicable, a notice indicating that the financial service is related to instruments involving special risks related to their specific features or the operations to be executed or whose price depends on fluctuations in the financial markets outside the trader’s control and a notice indicating that historical performances are not indicators for future performances;

(k)	notice of the possibility that other taxes and/or costs that are not paid via the trader or imposed by him might exist;

(l)	any limitations of the period for which the information provided in accordance with this paragraph is valid;

(m)	the arrangements for payment and for performance;

(n)	any specific additional cost for the consumer of using the means of distance communication, if such additional cost is charged;

(o)	where environmental or social factors are integrated into the investment strategy of the financial service, information on any environmental or social objectives targeted by the financial service;

(p)

the existence or absence of a right of withdrawal and, where the right of withdrawal exists, information on the withdrawal period and the conditions for exercising that right including information on the amount which the consumer may be required to pay, as well as the consequences of non-exercise of that right;

(q)	the minimum duration of the distance contract in the case of financial services to be performed permanently or recurrently;

(r)	information on any rights the parties might have to terminate the contract early or unilaterally by virtue of the terms of the distance contract, including any penalties imposed under the contract in such cases;

(s)

practical instructions and procedures for exercising the right of withdrawal in accordance with Article 16b(1), indicating, inter alia, the trader’s telephone number and email address or details of other means of communication relevant to the sending of the withdrawal statement and, for financial services contracts concluded by means of an online interface, information about the existence and placement of the withdrawal function referred to in Article 11a;

(t)	any contractual clause on the law applicable to the distance contract and/or on the competent court;

(u)

in which language, or languages, the contractual terms and conditions, and the prior information referred to in this Article, are supplied, and furthermore in which language, or languages, the trader, with the agreement of the consumer, undertakes to communicate during the duration of the distance contract;

(v)	where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it;

(w)	the existence of guarantee funds or other compensation arrangements, not covered by Directives 2014/49/EU (1) and 97/9/EC of the European Parliament and of the Council (2).

2. Member States may maintain or introduce in their national law language requirements regarding the information referred to in paragraph 1, so as to ensure that such information is easily understood by the consumer.

3. In the case of voice telephony communications, the identity of the trader and the commercial purpose of the call initiated by the trader shall be made explicitly clear at the beginning of any call with the consumer. When a call is being recorded, or might be recorded, the trader shall also notify the consumer that this is the case.

4. By way of derogation from paragraph 1, in the case of voice telephony communications as referred to in paragraph 3, if the consumer explicitly agrees, the trader may provide only the information referred to in points (a), (f), (g), (k) and (p) of paragraph 1 before the consumer is bound by the distance contract. In such case, the trader shall inform the consumer of the nature and the availability of the other information referred to in paragraph 1. The trader shall provide that other information required by paragraph 1 on a durable medium immediately after the conclusion of the distance contract.

5. In the event that the information referred to in paragraph 1 is provided less than one day before the consumer is bound by the distance contract, Member States shall require that the trader sends a reminder to the consumer of the possibility to withdraw from the distance contract and of the procedure to follow for withdrawing, in accordance with Article 16b. That reminder shall be provided to the consumer, on a durable medium, between one and seven days after the conclusion of the distance contract.

6. The information referred to in paragraph 1 shall be provided to the consumer on a durable medium and be easy to read.

The information referred to in paragraph 1 shall be provided upon request in an appropriate and accessible format to consumers with disabilities, including those with a visual impairment.

7. Except for the information referred to in paragraph 1, points (a), (f), (g), (k), and (p), the trader shall be permitted to layer the information where it is provided by electronic means.

Where information is layered, it shall be possible to view, save and print the information referred to in paragraph 1 as one single document.

In such cases, the trader shall ensure that the consumer is presented with all the pre-contractual information referred to in paragraph 1 before the conclusion of the distance contract.

8. As regards compliance with the information requirements laid down in this Article, the burden of proof shall be on the trader.

9. Member States may adopt or maintain more stringent provisions on pre-contractual information requirements than those referred to in this Article, when the provisions are in conformity with Union law.

10. Where another Union act governing specific financial services contains rules on the information to be provided to the consumer prior to the conclusion of the contract, only the rules of that Union act shall apply to those specific financial services, irrespective of the level of detail of those rules, unless otherwise provided in that Union act.

Where that other Union act does not contain rules on information about the right of withdrawal, the trader shall inform the consumer about the existence or absence of such a right in accordance with paragraph 1, point (p).

Article 16b

Right of withdrawal from distance contracts for financial services

1. Member States shall ensure that the consumer has a period of 14 calendar days to withdraw from a contract without penalty and without giving any reason. That period shall be extended to 30 calendar days in distance contracts relating to personal pension operations.

The withdrawal period referred to in the first subparagraph shall begin either:

(a)	from the day of the conclusion of the distance contract; or

(b)

from the day on which the consumer receives the contractual terms and conditions and the information in accordance with Article 16a, if that is later than the date in point (a) of this subparagraph.

If the consumer has not received the contractual terms and conditions and the information in accordance with Article 16a, the withdrawal period shall in any event expire 12 months and 14 days after the conclusion of the distance contract. This shall not apply if the consumer has not been informed about his or her right of withdrawal in accordance with Article 16a(1), point (p).

2. The right of withdrawal shall not apply to the following:

(a)

consumer financial services whose price depends on fluctuations in the financial market outside the trader’s control, which might occur during the withdrawal period, such as services related to:

—	foreign exchange,

—	money market instruments,

—	transferable securities,

—	units in collective investment undertakings,

—	financial-futures contracts, including equivalent cash-settled instruments,

—	forward interest-rate agreements (FRAs),

—	interest-rate, currency and equity swaps,

—	options to acquire or dispose of any instruments referred to in this point, including equivalent cash-settled instruments. This category includes in particular options on currency and on interest rates;

(b)	travel and baggage insurance policies or similar short-term insurance policies of less than one month’s duration;

(c)	contracts the performance of which has been fully completed by both parties at the consumer’s express request before the consumer exercises his or her right of withdrawal.

3. The consumer shall be considered to have exercised his or her right of withdrawal within the withdrawal period referred to in paragraph 1 if he or she has sent the communication concerning the exercise of the right of withdrawal before that period expired.

4. Where an ancillary service relating to the distance contract for financial service is provided by the trader or by a third party on the basis of an agreement between that third party and the trader, the consumer shall not be bound by the ancillary contract if the consumer exercises his or her right of withdrawal in accordance with this Article. Where the consumer chooses to terminate the ancillary contract, it shall be without any costs for the consumer.

5. This Article shall be without prejudice to any rule of national law establishing a period of time during which the performance of the contract may not begin.

6. Where another Union act governing specific financial services contains rules on the right of withdrawal, only rules of that Union act on the right of withdrawal shall apply to those specific financial services, unless otherwise provided in that other Union act. Where that other Union act gives Member States the right to choose between the right of withdrawal and an alternative, such as a reflection period, only the corresponding rules of that Union act shall apply to those specific financial services, unless otherwise provided in that other Union act.

7. By way of derogation from this Article, Member States may choose to instead apply the following provisions to the following financial services with regard to the right of withdrawal or a reflection period:

(a)	Article 14(6) of Directive 2014/17/EU of the European Parliament and of the Council (*3) to credit agreements exempted from the scope of that Directive by Article 3(2) thereof; and

(b)	Articles 26 and 27 of Directive (EU) 2023/2225 of the European Parliament and of the Council (*4) to credit agreements exempted from the scope of that Directive by Article 2(2) thereof.

Article 16c

Payment of the service provided before withdrawal

1. Where the consumer exercises the right of withdrawal under Article 16b, the consumer may only be required to pay for the service actually provided by the trader in accordance with the distance contract. The consumer shall pay for that service without undue delay. The amount payable shall not:

(a)	exceed an amount which is in proportion to the extent of the service already provided in comparison with the full coverage of the distance contract;

(b)	in any case be such that it could be construed as a penalty.

2. Member States may provide that consumers cannot be required to pay any amount for withdrawing from an insurance contract.

3. The trader may not require the consumer to pay any amount on the basis of paragraph 1 of this Article unless the trader can prove that the consumer was duly informed about the amount payable, in accordance with Article 16a(1), point (p). However, the trader may not require such payment if the trader commenced the performance of the contract before the expiry of the withdrawal period provided for in Article 16b(1) without the consumer’s prior request.

4. The trader shall, without any undue delay and no later than within 30 calendar days of the date on which the trader receives the notification of withdrawal, return to the consumer any sums the trader has received from him or her in accordance with the distance contract, except for the amount referred to in paragraph 1.

5. The consumer shall return to the trader any sums he or she has received from the trader without any undue delay and no later than within 30 calendar days of the date on which the consumer withdraws from the contract.

Article 16d

Adequate explanations

1. Member States shall ensure that traders are required to provide adequate explanations to the consumer concerning the proposed financial services contracts that make it possible for the consumer to assess whether the proposed contract and ancillary services are adapted to his or her needs and financial situation. Such explanations shall be provided to the consumer free of charge and prior to the conclusion of the contract. The explanations shall include the following elements:

(a)	the required pre-contractual information;

(b)	the essential characteristics of the proposed contract, including possible ancillary services;

(c)	the specific effects that the proposed contract may have on the consumer, including, where applicable, the consequences of payment default or late payment by the consumer.

2. Member States may specify the manner in which, as well as the extent to which, the explanations referred to in paragraph 1 are given. Member States may adapt the manner and the extent to the circumstances of the situation in which the financial service is offered, the person to whom it is offered and the nature of the financial service offered.

3. Member States shall ensure that, in the event that the trader uses online tools, the consumer shall have a right to request and to obtain human intervention at the pre-contractual stage, and in justified cases after the distance contract has been concluded, in the same language as that used for the pre-contractual information provided in accordance with Article 16a(1).

4. As regards compliance with the adequate explanation requirements laid down in this Article, the burden of proof shall be on the trader.

5. Where another Union act governing specific financial services contains rules on the adequate explanations to be provided to the consumer, only rules on the adequate explanations of that Union act shall apply to those specific financial services, unless otherwise provided in that Union act.

Article 16e

Additional protection regarding online interfaces

1. Without prejudice to Directive 2005/29/EC and Regulation (EU) 2016/679, Member States shall ensure that traders, when concluding financial services contracts at a distance, do not design, organise or operate their online interfaces, as defined in Article 3(m) of Regulation (EU) 2022/2065 of the European Parliament and of the Council (*5), in a way that deceives or manipulates consumers who are recipients of their service or otherwise materially distorts or impairs their ability to make free and informed decisions. In particular, Member States shall adopt measures that, in accordance with Union law, address at least one of the following practices by traders:

(a)	giving more prominence to certain choices when asking the consumers who are recipients of their service for a decision;

(b)	repeatedly requesting that consumers who are recipients of the service make a choice where that choice has already been made, especially by presenting pop-ups that interfere with the user experience; or

(c)	making the procedure for terminating a service more difficult than subscribing to it.

2. Member States may adopt or maintain more stringent provisions regarding the requirements for traders set out in paragraph 1, when the provisions are in conformity with Union law.

(*1)  Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ L 173, 12.6.2014, p. 149)."

(*2)  Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor-compensation schemes (OJ L 84, 26.3.1997, p. 22)."

(*3)  Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ L 60, 28.2.2014, p. 34)."

(*4)  Directive (EU) 2023/2225 of the European Parliament and of the Council of 18 October 2023 on credit agreements for consumers and repealing Directive 2008/48/EC (OJ L, 2023/2225, 30.10.2023, ELI: http://data.europa.eu/eli/dir/2023/2225/oj)."

(*5)  Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ L 277, 27.10.2022, p. 1).’;"

(5)

in Article 24, the following paragraph is added:

‘6. With regard to infringements of the measures adopted pursuant to the provisions referred to in Article 3(1b) applicable to distance contracts for consumer financial services, Member States shall ensure that, when penalties are to be imposed in accordance with Article 21 of Regulation (EU) 2017/2394, they include the possibility either to impose fines through administrative procedures or to initiate legal proceedings for the imposition of fines, or both.’

;

(6)

in Article 29, paragraph 1 is replaced by the following:

‘1. Where a Member State makes use of any of the regulatory choices referred to in Article 3(4), Article 6(7), Article 6(8), Article 7(4), Article 8(6), Article 9(1a) and (3), Article 16, second and third paragraphs, Article 16a(2) and (9), Article 16b(7) and Article 16e, it shall inform the Commission thereof by 19 December 2025, as well as of any subsequent changes.’

;

(7)	Annex I is amended in accordance with Annex I to this Directive.

Article 2

Transposition and review

1. Member States shall adopt and publish by 19 December 2025 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission.

They shall apply those measures from 19 June 2026.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

2. Member States shall communicate to the Commission the text of the main measures in national law which they adopt in the field covered by this Directive.

3. By 31 July 2030, the Commission shall submit a report on the application of this Directive, including the withdrawal function, to the European Parliament and to the Council. That report shall include an evaluation of the functioning of the single market for financial services concluded at a distance in the Union and the impact of this Directive on other relevant Union law.

Article 3

Repeal

Directive 2002/65/EC is repealed with effect from 19 June 2026.

References to the repealed Directive shall be construed as references to Directive 2011/83/EU, as amended by this Directive, and shall be read in accordance with the correlation table set out in the Annex to this Directive.

Article 4

Entry into force

This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

Article 5

Addressees

This Directive is addressed to the Member States.