On 24 January 2011, the EU Council of Ministers adopted a common approach to the Consumer Rights Directive that would see the scope of the Directive narrowed to cover distance selling and doorstep selling and would drop the original proposal for provisions on unfair terms, conformity with contract and consumer guarantees. The approach would, however, maintain full harmonisation in respect of the conditions on consumer information and the right of withdrawal in distance and off-premises contracts between traders and consumers.

The final version of the Directive remains in the balance, however, as the Council’s approach is up against a conflicting text adopted on 1 February by the European Parliament’s Committee on the Internal Market and Consumer Protection (IMCO). Indeed, there are also divisions in IMCO itself over the scope of the Directive. The Parliament will vote on the proposals in plenary in late March but, amid accusations that consumers are being sold short, the signs are that the controversial legislation is heading for second reading.  

The statement of full harmonisation (Article 4) from the original draft has been replaced with a statement that Member States may not maintain or introduce provisions diverging from those laid down in the Directive, including more or less stringent provisions to ensure a different level of consumer protection “unless otherwise provided in this Directive”. One such exception is provided in Article 4a(2), which provides that Member States may introduce a de minimis threshold of €60 or less and may disapply the Directive to off-premises contracts below this value (the proposal already provides that offpremises contracts under €40 are de minimis). In general, the new proposal fully harmonises conditions on consumer information and the right of withdrawal in distance and offpremises contracts between traders and consumers (providing a withdrawal period of 14 days, increased from seven or eight days (in most circumstances) in the existing legislation), but otherwise does not prevent traders from offering consumers contractual arrangements that go beyond the protection provided in the Directive.  

There have been rumours of a first reading agreement between the Parliament and the Council but whilst there is common ground in a number of areas, such is the level of divergence in others that this is by no means a foregone conclusion. The conflicting texts will now proceed to a vote in plenary, which is due to take place on 24 March. The deadline for proposals for written amendments was 2 March, but with a suitable majority, members of the European Parliament could propose amendments right up until the day of the vote.