The Sales Law Review Group ("SLRG"), established to review the legislation governing the sale of goods and supply of services, issued a position paper in the proposed EU Directive on Consumer Rights last week. While broadly welcoming the initiative, the SLRG identified a number of shortcomings in the proposed Directive.

The proposal for a Directive on Consumer Rights was published in October 2008. It seeks to replace four existing Directives that deal with different aspects of consumer contract rights - Directive 85/577/EEC on contracts negotiated away from business premises; Directive 93/113/EEC on unfair terms in business contracts; Directive 97/7/EC on distance contracts; and Directive 1999/44/EC on consumer sales and guarantees - by a single consolidated and updated instrument. The SLRG described the proposed consolidation of the main consumer contract law Directives in a single instrument as "a welcome initiative and would help both traders and consumers better to understand their rights and obligations".

However, the SLRG was critical of the exclusion of services generally, and of digital services in particular, from the provisions of the proposed Directive on conformity with consumer contracts and the remedies for lack of conformity, describing their exclusion as "regrettable". The SLRG said that expenditure on services is a major element of overall consumer expenditure and consumers would benefit from Community rules on the standards of performance applicable to service contracts and the remedies for performance not in conformity with the contract.

The SLRG also expressed reservations about the proposal for full harmonisation. This proposal would mean that Ireland would not be permitted to introduce more or less stringent provisions, or to diverge from the Directive in any way. The SLRG said that "the case for full harmonisation is arguably weakest as it applies to in-store transactions for the sale of goods. In its present form, the Directive would relegate the primary domestic remedy to reject faulty goods and obtain a refund to the status of a second-tier remedy behind repair or replacement of the goods at the choice of the trader. The importance of this issue is evident from the fact that two-thirds of the 70,000 complaints received by the National Consumer Agency in 2007 related to faulty goods or services. The proposed Directive would also limit the liability period for faulty goods to two years compared with the current six-year limit for contractual claims under Irish law. Though a number of other aspects of the proposed Directive give cause for concern, these two provisions present the greatest threat to the protections currently enjoyed by Irish consumers".

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