Proposition 51K1776

Projet de loi visant à transposer certaines dispositions de la directive services financiers à distance et de la directive vie privée et communications électroniques.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

May 10, 2005

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive credit purchase consumer protection protection of privacy electronic mail financial transaction insurance

Voting ¶

Voted to adopt

CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR FN VB

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Discussion ¶

June 30, 2005 | Plenary session (Chamber of representatives)

Full source

The main objective of the bill is to transpose Directive 2002/65 on the distance sale of financial services. The directive aims to harmonise the legal framework of the Member States, providing adequate protection for consumers when they purchase a financial service remotely. The Directive complements Directive 97/7 on the protection of consumers in relation to distance contracts.

Due to their intangible nature, financial services are ⁇ suitable for distance sales. It is therefore necessary to provide for special consumer protection.

The draft law was discussed in the Committee on Business at its meetings of 24 May and 14 June 2005.

The submission of the draft law was preceded by a broad consultation. The Consumer Council and the High Council for Self-Employed Persons and SMEs were consulted. Thus, both consumers and professionals have been able to comment on the design.

The Minister chose to transpose the Directive within the existing legal framework of the Act of 14 July 1991 on commercial practices and the information and protection of consumers. This was logical because the Commercial Practices Act already contains the general rules on consumer protection and a full section on distance contracts.

Financial services were previously excluded from the rules on distance contracts. This draft ends this and, in accordance with the Directive, provides dual protection to the consumer when purchasing a financial service remotely, buying an insurance, a credit, a product on credit, an investment over the Internet.

Strict and detailed information obligations are imposed. The consumer should be able to give informed consent and should be able to compare the different offers on the basis of the information on the financial service.

In addition, the consumer has a period of fourteen calendar days within which he can withdraw from the distance agreement concerning a financial service. He may exercise that right without paying a fine and without giving reasons for it.

During the general discussion, Mr. Pieters and Mr. Tant pointed out the late transposition of the Directive. The Minister is aware, on the one hand, of the difficulty of incorporating the Directive into the existing legal framework and, on the other hand, of the fact that extensive advice was first requested from all kinds of organisations.

During the discussion, a number of questions were also asked, among others by Ms. Ghenne and Mr. Tant, on the difference in text regarding the directive and the draft law. The Minister indicated that the draft law is a faithful transposition of the directive, but that the terminology of the directive could not always be adopted because the existing terminology of the Act on Commercial Practices was taken into account.

The Minister expressed his agreement with Mr. Tant’s proposal that the government, when transposing a European directive, would make a document available to Parliament in a timely manner indicating the differences between the draft law and the directive.

The bill also includes a regulation on unsolicited advertising. It further transposes Article 13 of Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector. The article has already been partially transposed as regards unwanted advertising by electronic mail by article 14 of the law of 11 March 2003 on certain legal aspects of information society services.

For example, it is forbidden to send advertising via call machines and faxes without the prior consent of the recipient, the so-called opt-in arrangement. The use of other communication techniques for advertising purposes is permitted in the absence of apparent objection by the recipient, the so-called opt-out arrangement.

The committee then discussed the possibility of extending the opt-in scheme to other communication technologies. Through an amendment by Mr Monfils and consorts, it was clarified that the King, through a decision consulted in the Council of Ministers, may extend the opt-in scheme to other communication techniques, taking into account the evolution of those techniques. The Minister clarified that the ban will only be extended to other communication technologies if the public interest is seriously damaged.

In conclusion, the bill fills a major legal gap. In the future, consumers will enjoy good protection when purchasing a financial service remotely, but also for financial service providers it is a good thing because that protection can increase consumer confidence in purchasing financial services remotely.

The bill, which represents a significant step forward in consumer protection, was unanimously adopted by the Business Committee.

On the final question of Ms. Pieters, why the law comes into force only after five months, the minister clarified that this is the result of a compromise between consumers and ⁇ . The industry asked for an even longer period, but five months should be enough, among other things, for the banking sector, to settle with that bill.

Mr T'Sijen, thank you for your report.

First of all, I would like to thank Mr. President. The quality of your oral report.

The draft law that we are dealing with today does not call for big speeches. I will be brief.

The draft transposes certain provisions of two separate directives, one concerning remote financial services and the other concerning privacy and electronic communications. Both are generally aimed at ensuring a sufficient level of consumer protection.

Until now, financial services were excluded from the scope of the general directives on consumer protection in relation to distance contracts. This was an aberration when taken into account the intangible nature of the financial service, the European passport of collective investment agencies in securities, the advent of the euro, the rise of means of distance marketing and the mass spread of the internet to European consumers. These parameters obviously tend to facilitate cross-border comparisons and thus expand the supply.

The inadequacy of part of the legal framework of the Member States was thus quickly highlighted. Differences in regulations applicable to information society services within the European Union also sustained legal uncertainty and risked, in the long run, fragmentation of the internal market.

In this general context, the consumer who contracts financial products on e-commerce networks must naturally be subject to appropriate legal protection. In this sense, the above-mentioned directives to guarantee this protection provide for both pre-contractual and contractual information, a right of withdrawal for the benefit of the consumer, a mechanism of protection against cases of fraud, specific measures concerning unsolicited communications, understood in the broad sense, a clause on international protection of the European consumer and, finally, a provision on judicial and extrajudicial recourse.

The Socialist Party, concerned with the general protection of consumers, obviously fully supports the objectives of this bill, faithful transcription of European texts. We therefore welcome Mr Van den Bossche’s bill, given the importance of remote financial services for both professionals and consumers. This legal breakthrough should ⁇ contribute to enhancing the confidence of individuals in the remote financial system and to streamlining the internal market for product and service providers.

However, I would like to remind myself that these directives should have been transposed, a long time ago, more precisely since 9 October last year.

Unfortunately, Belgium is far from being at the forefront of the implementation of a yet important directive, as I have already said, both for the internal market and for the Belgian consumer.

This delay was invoked by the Minister to request the State Council to issue an urgent opinion. I deeply regret this unconstructive method and this delayed work that will only allow little retreat in the revision of the directive scheduled for spring 2006.

I come to the form of the text. I understand the difficulties of the matter, while allowing me to reiterate my criticisms already made in committee. How can a consumer be effectively protected if the consumer is simply unable to read and appreciate a legislative text that concerns him or her directly?

In the committee, Ms. Van den Bossche had personally acknowledged the complexity of the text and its lack of legibility. With this in mind, I therefore ask that we make at least a significant effort on this advertising to our fellow citizens.

Does the Minister consider, in order to best respond to the interests of consumers and to go in the direction of this old saying that “no one is supposed to ignore the law”, to organize a large information campaign?

As a Minister in charge of Consumer and Consumer Protection, it might be interesting that she gives the example to all her fellow ministers and thus works to make laws finally accessible to as many as possible.

Finally, I will also pay attention to the respect for the fundamental right granted by this bill to consumers, namely that of renunciation. I will also take care of the concrete proposals to be made by Mr. the Minister of Economy regarding the trusted third party and the online processing of complaints.