Upon mutual agreement the parties to the contract are allowed to exclude the information duties. Any ambiguities or disparities in relation to the sale of goods contract must be disclosed by the trader before the contract is concluded, so that when the goods are delivered they meet the expectations of the consumer. As per Article 6(9) of the CRD, the trader has the burden of proof to show that his information obligations were fulfilled as towards the consumer. When a contract is concluded by electronic means, the trader is liable to inform the consumer about the latter’s obligation to pay, in a clear comprehensible manner and before the cosumer places his order (Art 8 para 2 CRD). When a consumer uses the internet to place his order, the trader must make sure that the consumer acknowledges to pay prior to placing the order (Art 8 para 8 sentence 2) and this functionality is usually done at a click of a button which must be “labelled in a an easily legible manner.” If the trader breaches the obligation to not disclose pre-contractual information obligations, save for the right of withdrawal by the customer, then the Member states are allowed to determine the sanctions against the trader provided that they are effective, proportional and dissuasive as per article 24 of the CRD.
Also, article 5 of the CRD states the trader must, prior to the conclusion of the contract, disclose the main characteristics of the product, the address and identity of the trader, the price (including taxes), the arrangements for payment and delivery, the existence of a right to withdraw (where applicable), the existence of any after-sales services and guarantees, the duration of the contract, the obligations of the consumer and whether any deposit is required.
Furthermore, the information given must be “available to the consumer in a way appropriate to the means of distance communication used in plain and intelligible language. In so far as that information is provided on a durable medium, it shall be legible” as per article 8(1) of the CRD.
For example, in the Netherlands the sanction for breach of non-disclosure of information obligations allows the consumer to terminate the contract as a result of mistake fraudor a receive compensation for non-performance of contract. The trader might also be fined for unfair commercial practice.Further, the justification for right of the consumer to be informed of the right of withdrawal is that they should not be “disadvantaged” by fact that they were not informed of the right of withdrawal. In other words, a consumer may avoid the payment of compensation where they do not know that they are merely entitled to “test” the goods and not “use” them.
Article 6(1) of the CRD states that consumers are extinguished from the liability to pay for any additional charges, if they are not notified to do so before the contract is conclude, as required by Article 5(1)(c). Recital 12 of the CRD states that the directive shall complete the information requirements of Directive on electronic commerce where “Member States should retain the possibility to impose additional information requirements applicable to service providers established in their territory.
Member states are allowed to impose language requirements in relation to the contractual information in distance and off-premise contracts as per article 6(7) of the CRD. Further, as per the Rome I article 6 traders are required to provide information in the national language of the Member state of the consumer.
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