Local view for "http://purl.org/linkedpolitics/eu/plenary/2002-05-13-Speech-1-058"
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"Mr President, let me begin by confirming that the Commission supports the Council's common position and agreed with the original recommendation of your rapporteur, Mrs Berger, that Parliament should adopt the common position without amendment.
Finally, the information contained in Article 3 must be communicated and addressed personally to the consumer. Situations where the supplier provides general information to an indefinite number of recipients are thus excluded.
Another concern is the wish to adopt a maximum level of harmonisation.
Amendment No 3 proposes the deletion of the content of recital 9; Amendment No 5, a substantial change to recital 13. Amendments Nos 26, 27 and 28 provide for the deletion of Article 4(2) to (4), and Amendment No 25 a fundamental change to Article 13. Again, I must disagree with these proposed amendments.
The implementation period for the e-commerce directive expired in January this year. Once the distance selling directive has been adopted, there will still be a two-year implementation period. So for on-line transactions, the principle of country of origin will apply to generalised pre-contractual information for a time during which the provisions of this directive are being implemented.
It would be extremely unhelpful for consumer confidence if this period were to be perceived as leading to, or effectively did lead to, the lowering of consumer protection standards in any one Member State. To avoid this, recital 9 recalls that further convergence or harmonisation at a higher level of consumer protection is foreseen in a number of areas, as laid down in the Financial Services Action Plan. Pending this harmonisation, there should be no lowering of standards. The deletion proposed by Amendment No 5 would make the recital factually wrong. The directive in certain places, such as in Article 10, leaves Member States some leeway with the harmonised framework.
Article 4(2), introduces the possibility for Member States to impose additional information requirements. The Commission concluded from the inventory of information requirements it made in 2000, that this provision is inescapable. Information requirements in the area of financial services are of a diverse and complex nature, they are regulated partly by EC law, partly for the time being by national law. Much has been done at sectoral level to harmonise pre-contractual information requirements. However, it is clear that we are not yet in a position to base information obligations only on EC law.
Deletion of Article 4(2), as proposed in Amendment No 26 – although already rejected by the Committee on Legal Affair and the Internal Market – would prevent Member States from regulating information requirements, notably where no Community legislation existed at all and would in effect roll back important national consumer protection rules. For this reason, pending further harmonisation, Member States may maintain or introduce more stringent rules. However, the imposition of any additional rules must conform with the transparency procedure laid down in Article 4(3), which has to be maintained, contrary to the suggestions made in Amendments Nos 27 and 28.
Amendment No 25 includes the deletion of the phrase at the end of Article 13 "where those operators are in a position to do so". This phrase is found in the equivalent article in the general directive. It is not a minimal clause, it is a reflection of the situation on the ground in all Member States. If it were to be deleted, postal service operators for instance could be obliged to breach mail secrecy.
Finally, it is an exaggerated concern for the level of harmonisation to seek to transform the directive into a regulation as required by Amendment No 49 and to fix a date for end of transposition, even before the directive is adopted, as is suggested in Article 50.
Amendments Nos 6 and 8 carve out contracts concluded before a notary. The consequence would be that intervention of a notary in a distance contract on financial services would deprive the consumer of central rights laid down in the directive, and this is clearly unacceptable. These rights include information that only the supplier can give, for instance on the quality and risk of a product, protection in case of fraudulent use of cards and protection against unsolicited services and communications. The effect of a mandatory exclusion of a right of withdrawal for mortgage credit, as contained in Amendments Nos 20, 22, 30 and 32, and the suppression of a right of reflection – Amendment No 31 – would be a substantial reduction of consumer protection in Member States.
However, we support the compromise amendments proposed by Mrs Berger and Mr Lehne – Amendments Nos 43 and 44 – and urge Parliament to adopt the common position with these amendments only. Let me pause here to record my thanks to Mrs Berger for the hard work that she has done on this particular piece of legislation, and also to Mr Lehne, for their cooperation and hard work with both myself and my services.
Furthermore, although the definition of mortgage credit found in Amendment No 20 is the same as the definition in the code of conduct on home loan information negotiated between industry and consumers in 2001, national legislation goes beyond the latter definition. Reduced consumer protection would also follow the suppression, through Amendment No 42, of the optional exemption to the obligation to pay for insurance services and the limits introduced by Amendment No 33.
Some amendments include provisions that are unacceptable simply because of their content. Amendment No 12 seeks to introduce a specific definition of credit. I understand this is to solve a problem with the transposition in one Member State of the general directive on distance contracts – Directive 97/7/EC. Any problems relating to the general directive should be resolved in that context and not in this legislation.
Amendment No 15 introduces a sunset provision: a deadline after which a consumer may no longer invoke the right of withdrawal. This would amount to punishing the consumer for disrespect of obligations by the supplier.
Amendment No 17 would exclude from the right of withdrawal contracts whose performance has begun with the consumer's consent, before the end of the withdrawal period.
In the general directive on distance contracts (97/7/EC), the consumer loses his right of withdrawal. If he accepts that the performance of the contract begins. In contrast this directive foresees that if a consumer withdraws he must pay for services actually rendered before the withdrawal.
Amendment No 17 would render Amendment No 7 meaningless. However, this would contradict the European Parliament's position during first reading, when it voted in favour of the principles contained in this article.
Amendment No 23 on payment for services rendered confuses the respective obligations of consumers and suppliers. Consumers must pay for services rendered if they withdraw. A good example is an insurance contract. Suppliers must return any sums received before the consumer withdraws, for instance where the contract is for investments.
I am not convinced of the need for Amendments Nos 24 and 48 on tacit renewal. The provision in Article 1(2), on initial services agreements, followed by successive operations or a series of separate operations of the same nature, amply covers the concern that underlines that amendment.
Amendment No 35 makes the rules on burden of proof mandatory. This disregards the fact that the civil law of Member States is not harmonised. Article 46 removes the need to obtain the consumer's explicit consent to receive a shortened list of information requirements in telephone communications and replaces this by a reference to the rules on confirmation of information. This would lead to a substantial weakening of the consumer protection established by this directive.
I have covered the most important amendments. The remaining amendments – Nos 1, 2, 4, 7, 14, 29, 34, 36, 38 to 40, 45 and 47 – are either less precise than the common position or do nothing to improve it.
We believe that the common position constitutes a balanced solution which improves our amended proposal and, to a considerable extent, meets the wishes of Parliament as expressed in its first reading. In particular, the common position includes: fully harmonised and detailed general information requirements; the principle of written confirmation; a right of withdrawal with some exceptions; protection for the user on the chosen means of payment and redress in the event of disputes.
There is an urgent need to fill the gap and establish the legal certainty that this directive would offer. The directive has been negotiated since 1998. If it fails, neither business nor consumers will be better off. I urge you to follow the lead of your rapporteur and other speakers who urge this, and adopt this directive without any further delay, only with the compromise amendments suggested. Thank you for your attention.
The directive complements and underpins the e-commerce directive by introducing an additional safety net of protection measures for consumers. This directive also fits into a larger framework of legislative measures designed to open up the internal market for retail financial services.
Allow me to comment on the 50 amendments tabled. Let me begin by addressing Amendments Nos 9, 10, 11 and 37 that expressed Members' concerns about the position of intermediaries in this directive. In the common position, the supplier is defined only as the "contractual provider", and this is deliberate. Adding the concepts of "intermediary" and "agent" would require a precise outline of the operation of various categories of financial intermediaries and an exhaustive description of the relationship between suppliers and intermediaries or agents.
As indicated by recital 19, this is not possible in the framework of a general and horizontal directive that applies to all financial services. I can confirm that the intervention of a contractual provider face-to-face implies that the transaction falls outside the scope of the directive. The directive applies to organised distance marketing schemes not to face-to-face schemes with the occasional distance transaction.
I shall now address the amendments that are unacceptable because they attack the core of the common position. I shall begin by commenting on the alleged impact of Article 3(4) on the e-commerce directive and, in particular, the principle of country of origin. I fully agree with the speech made by Mrs Berès on this particular point earlier.
The Commission firmly believes that the common position establishes rules that complement the e-commerce directive and fill gaps in it. Among these, Article 3(4) is central. Amendment No 13 proposes deleting Article 3(4). The amendment is, in my view, based on a misinterpretation of the article. Article 3(4) provides indispensable clarification of an important aspect of the e-commerce directive. The article states that the information communicated to the consumer, prior to conclusion of the contract, needs to be consistent with the provisions which will be contained in the contract itself. This makes sense legally and in practice.
Contractual obligations are not subject to the country of origin approach, and Article 3(4) simply refers to the law and I quote, "presumed to be applicable", normally meaning the law of the country of destination. No reputable supplier would willingly misinform consumers about the future content of their contract on the pretext that such information was subject to country of origin rather than country of destination rules. In addition, the article only covers the prior information which will eventually be reflected in the contract. It does not cover all the information provided before the contract is signed but not subsequently included in the contract itself."@en1
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