Entering into a distance contract or off-premises contract with a professional

Last update 21.10.2019

Distance contracts are contracts that are entered into between a consumer and a professional who are not at the same place when a contract is offered, negotiated and signed. All stages of conclusion of the contract must be completed by remote methods.

The contract must be drawn up in a distance system that is organised by the professional (for example a website), where only remote communication techniques (internet, letter, email, SMS, television, fax) are used.

Off-premises contracts are contracts that are concluded:

  • when the professional and consumer are physically present together at a location other than the business premises; or
  • when the consumer is personally and individually solicited in an off-premise context (e.g. a stand at a trade fair), but where the contract is entered into immediately afterwards, at the professional's business premises or by using a remote communication method (e.g. email); or
  • during an excursion organised by the professional.

Off-premises contracts might be signed, for example, during a bus or boat excursion ("Kaffeefahrt").

Who is concerned

The following are concerned:

  • all professionals, i.e. any natural or legal persons, public or private, who engage in a commercial, industrial, craft or self-employed activity;
  • consumers: a non-professional natural person.

Certain types of contract are not subject to the rules concerning distance and off-premises contracts, in particular:

  • contracts concerning financial services (bank, credit, insurance, private individual pension insurance, etc.);
  • contracts which must be notarised;
  • contracts pertaining to the construction of new buildings, major work on existing buildings or residential property rentals;
  • contracts pertaining to gambling, which involve betting on games of chance (lotteries, casino games, betting-related transactions);
  • contracts pertaining to package tours;
  • contracts concluded off-premises for which the payment to be made by the consumer does not exceed EUR 50, etc.

Download the full list of contracts that are excluded from the distance contract rules.

Prerequisites

The professional must have obtained the consumer's prior consent to contact them via:

  • email;
  • an automated calling system (without human involvement);
  • fax;
  • phone.

The professional must be able to prove that they obtained authorisation to contact the consumer by one of these methods. Even if the professional obtained the consumer's consent before calling, they must expressly tell them at the very start of the conversation that it is a commercial call.

For other remote communication methods: the professional may only contact the consumer if the consumer has not expressly opted out. For example, a catalogue may only be sent by mail if the consumer does not have a 'Keng Reklammen w.e.g' or 'No advertising' type sticker on their mailbox.

For contracts concluded by door-to-door sales, at the workplace or during an excursion organised by or for the professional supplier away from their business premises, between a professional supplier and a private final consumer, the latter may waive the contract by registered letter with acknowledgement of receipt:

  • during 14 calendar days of the order or commitment, in the case of the supply of goods or services;
  • within 15 days of receipt, in the case of the supply of goods.

How to proceed

Concepts surrounding distance contracts and off-premises contracts

Distance contracts are contracts that are entered into between a consumer and a professional who are not at the same place when a contract is offered, negotiated and signed.

All stages of entering into the contract must be completed by remote methods.

Furthermore, the contract must be drawn up in a distance system that is organised by the professional (e. g. a website), where only remote communication techniques are used (e.g.: internet, letter, fax, telephone, email, SMS or television).

Thus, the following are considered distance contracts: a purchase on the internet, legally downloading music on the internet or on a mobile phone, ordering clothes from a catalogue by mail or email, or buying a bouquet of flowers by phone, etc.

However, a contract where a consumer has gone to a stand at a trade fair to get information is also considered a distance contract, since they will then go home, negotiate and conclude the sale by phone.

A distance contract is only in force if a genuine remote sales system is organised by the professional (a website which merely provides information about the products or services offered, without offering online payment, is not an organised system).

The following are not distance contracts:

  • when a consumer negotiates the sale in the store, and then goes home and concludes the contract remotely;
  • when the contract is prepared through an exchange of emails but is ultimately concluded in the store.

Off-premises contracts require that the professional and the consumer both be present at the same time – i.e.:

  • when the contract is entered into outside of the professional's premises – for example during an excursion organised by the professional in an effort to make a sale ("Kaffeefahrt");
  • when the contract is set up outside of the professional's business establishment, it may be concluded at the business premises or using a remote communication method.

Informing the consumer prior to concluding the contract

The professional must provide the consumer with clear and comprehensible information. In the case of a distance contract, the information can be provided using any methods suited to the communication technique used. In the case of an off-premises contract, this information must be provided on paper or on another durable medium.

When the information is provided on a durable medium, it must be legible. That means that the consumer must be able to easily read the information using a normal resolution setting.Example: this rule must not be circumvented by using very small lettering or poor contrast between the letters and screen background, or even by using graphic elements on the button.

Where possible for the professional, the consumer should be able to communicate with them directly (for example: by email if the communication technique is telephone or email).

The information must also be provided in good faith and in compliance with the rules protecting minors or disabled persons.

The commercial aim of the information presented by the professional must be clear.

Mandatory information

The professional must inform the consumer about:

  • their identity, as well as the geographical address where their business is established;
  • the essential features of the product or service offered;
  • the price of the product or service, all taxes included, or when the price cannot be determined, the method for determining the price;
  • the terms of payment;
  • the terms of delivery of the product or performance of the service;
  • whether or not there is a right to withdraw (specifying the conditions, time limit and terms of performance of the withdrawal period, and providing an example withdrawal form).

The professional is also responsible for proving that they have fulfilled their obligation to inform the consumer.

In addition to the information mentioned above, the professional is still required to communicate other information, depending on whether it is a distance contract or an off-premises contract.

Information to be indicated depending on the communication method

It is up to the professional to prove that they have properly informed the consumer.

Distance contract entered into electronically

If the distance contract is entered into electronically and requires the consumer to pay, the professional clearly informs the consumer of the following directly before they submit their order:

  • the essential features of the product or service offered, to the extent appropriate for the means of communication used;
  • the price of the product or service offered;
  • additional transport, delivery or postage expenses and all other potential expenses, or even an indication that they may be requested if the costs cannot be calculated definitively. Where applicable, costs are indicated per billing period;
  • the contract term or, in the event of an open-ended contract or automatic renewal, the terms for terminating the contract;
  • the minimum duration of the consumer's obligations under the contract.

When making an order, the consumer must also specifically acknowledge that there is an obligation to make payment, meaning they must make a declaration which expressly refers to this payment obligation.

If the consumer has to activate a button or similar function to submit their order, that button or function must solely contain an easily legible note that this is an 'order with an obligation to pay' or similar wording, indicating that submitting the order will require the consumer to pay the professional. The wording must be unambiguous.

These provisions are also valid for passenger transportation contracts.

E-commerce websites

E-commerce websites must clearly and legibly indicate, at the latest at the beginning of the order process, whether delivery restrictions apply and which payment methods are accepted.

Remote communication methods with time and space constraints

When dealing with such a communication method (e.g. telephone, flyer, etc.), the professional must provide at least the following information:

  • their identity;
  • the main features of the product or service offered;
  • the total price;
  • whether or not there is a right of withdrawal;
  • the duration of the contract and the terms of withdrawal.
Contact by phone

In the event of contact by phone, the professional must clearly state their identity at the start of the conversation (and, where applicable, that of the person on whose behalf they are acting), and must specify that they are calling for a commercial purpose.

Conclusion of the contract

Concluding a distance contract

If the consumer decides to enter into a contract, the professional must provide them with all of the mandatory information.

The professional must provide the consumer with confirmation of the contract entered into on a durable medium (paper, USB flash drive, etc.), within a reasonable period of time after concluding the distance contract, and at the latest at the time of delivery or before the start of performance of the service provided, unless this information was transmitted on such a support prior to entering into the contract.

If the contract relates to the supply of digital content that was not provided on a physical medium, performance has begun with the consumer's express prior consent, and the consumer has acknowledged loss of their right to withdraw, the professional must also send the consumer these two validations on a durable medium within a reasonable period of time.

If the contract is entered into by phone, the consumer is only bound by the offer after having signed and accepted it in writing.

The professional is responsible for providing proof of the existence and content of precontractual information, confirmation of the contract, compliance with the terms of delivery or terms of performance, and consumer consent. If a clause in the contract states otherwise, it will be considered unfair, and will thus not apply.

Concluding an off-premises contract

Before the conclusion of the contract, the professional must provide the consumer with all necessary mandatory information on paper or, if the consumer agrees, on another durable medium. The information must be legible and have been drafted in clear and comprehensible language.

The professional must provide the consumer with a copy of the signed contract or the confirmation of the contract on paper or, if the consumer agrees, on another durable medium, including the confirmation of the consumer's prior express consent and acknowledgement.

The professional must do so within a reasonable period of time and at the latest when the item is delivered or before the service is performed.

The professional is responsible for providing proof of the existence and content of precontractual information, confirmation of the contract, compliance with the terms of delivery or terms of performance, and consumer consent. If a clause in the contract states otherwise, it will be considered unfair, and will thus not apply.

In the event that one or more essential information obligations are not fulfilled, only the consumer may invoke the nullity of the contract.

As a general rule, the consumer also has a right to withdraw if they change their opinion about entering into the contract.

Period for delivery of the item

The period for delivering an item or performing a service is generally stated in the contract. Thus, the professional must respect this time limit.

If no time limit is mentioned in the contract, the item must be delivered within 30 days of the conclusion of the contract. The parties may also agree to a period of more than 30 days.

If the professional does not deliver the item within the set period, the consumer may demand that the item be delivered within an additional time limit that has been adapted to the circumstances. The demand can take the form of:

  • a simple letter or, if necessary, a registered letter with or without acknowledgement of receipt;
  • an email;
  • a fax;
  • a notification in person or by phone;

For reasons of proof, it is preferable to have a written document.

In the event of failure to deliver at the time agreed with the consumer or within 30 days of the conclusion of the contract, the consumer shall instruct the professional to make the delivery within an additional period of time which has been adjusted to the circumstances.

If the professional will still not deliver the item within this additional deadline, the consumer can terminate the contract.

There is no need to send another reminder for the delivery of the item before terminating the contract after having granted an additional deadline, if:

  • the professional has refused to deliver the item; or
  • the delivery within the agreed delivery period is essential given the circumstances surrounding the conclusion of the contract; or
  • the consumer has informed the professional, before entering into the contract, that the delivery on or by a specific date is essential (e.g. a wedding dress).

If the professional does not make the delivery at the time agreed with the consumer or within 30 days, the consumer has the right to terminate the contract immediately without having to instruct the professional to make the delivery within an additional deadline.

The consumer must then be reimbursed without delay for any costs they may have incurred. If the refund is not made within this time period, which is assessed on a case-by-case basis, the amount to be refunded is increased by the legal interest rate from the first day following the expiry of this period.

In the event of a dispute concerning the deadline for carrying out the order, the burden of proof rests with the professional.

Provision of goods or services not requested

If the consumer receives a delivery of merchandise or if the professional provides services not ordered by the consumer, the consumer is not required to pay for said merchandise or service.

Likewise, a consumer's failure to respond at the time of delivery or performance of the service does not indicate their agreement. Clauses on the invoice accompanying the good or service which state something to the effect of 'unless you state otherwise, we consider you to agree with our offer' have no value.

Take care not to confuse the provision of goods or services that have not been requested with the renewal of a tacit agreement.

The professional is responsible for proving that the consumer has ordered the delivery of a good or the provision of a service.

The professional cannot claim any compensation whatsoever from the consumer, nor to return or to keep the goods, on pain of a fine.

Contacts in the event of a problem

In the event of a dispute after entering into a distance contract, the consumer may contact one of the following bodies:

  • the Luxembourg Consumer Association (Union Luxembourgeoise des consommateurs - ULC): it has jurisdiction in the event of an individual dispute on a national level. It also safeguards consumers' collective interests.
  • the Luxembourg economic interest group, the European Consumer Centre (Centre européen des consommateurs - CEC): it informs consumers and defends their interests if they have problems with a professional in another country of the European Union, or in Iceland or Norway.

The body hearing the case will analyse the possibility and appropriateness of action by summary procedure (a procedure delivering a quick verdict in urgent cases), first determining whether consumers' collective interests are at stake.

Who to contact

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