REGULATORY SCRUTINY BOARD OPINION Proposal for a Directive of the European Parliament and of the Council amending Directive 2011/83/EU concerning financial services contracts concluded at a distance and repealing Directive 2002/65/EC

EUROPEAN COMMISSION
SEC(2022) 203
21.12.2021
REGULATORY SCRUTINY BOARD OPINION
Proposal for a Directive of the European Parliament and of the Council
amending Directive 2011/83/EU concerning financial services contracts
concluded at a distance and repealing Directive 2002/65/EC
COM(2022) 204
SWD(2022) 141-142
Offentligt
KOM (2022) 0204 - SEK-dokument
Europaudvalget 2022
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This opinion concerns a draft impact assessment which may differ from the final version.
Commission européenne, B-1049 Bruxelles - Belgium. Office: BERL 08/010. E-mail: regulatory-scrutiny-board@ec.europa.eu
EUROPEAN COMMISSION
Regulatory Scrutiny Board
Brussels,
RSB
Opinion
Title: Impact assessment / Review of the Directive on Distance Marketing of
Consumer Financial Services (2002/65/EC) and amending Directive (2011/83/EU) on
consumer rights
Overall opinion: POSITIVE
(A) Policy context
The EU adopted the Distance Marketing of Financial Services Directive (DMFSD) in
2002. The Directive protects consumers when they sign a contract with a financial services
provider remotely. The Directive sets rules on the information consumers must receive
before concluding the contract and on the 14-day right of withdrawal. The Directive bans
unsolicited communications from financial services providers. It also prohibits providers
from supplying services that the consumer did not explicitly request.
The Directive was evaluated in 2020. This impact assessment aims to tackle the
shortcomings identified by the evaluation.
(B) Summary of findings
The Board notes the useful additional information provided in advance of the
meeting and commitments to make changes to the report.
The Board gives a positive opinion. The Board also considers that the report should
further improve with respect to the following aspects:
(1) The report does not present the options nor their structure and content in
sufficient detail. It does not explain why options without the safety net are not
discarded.
(2) The report does not sufficiently assess impacts on business. It does not explain
estimates and is not clear about limitations.
(C) What to improve
(1) The problem analysis should assess potential risks (e.g. data protection,
discrimination) associated with the access by Big tech companies to personal data when
providing financial services at a distance as this may affect both fair competition in
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affected markets and consumer trust.
(2) The report should clarify the content and structure of the policy options. It should
explain why options differ not only in the envisaged legal delivery instrument, but also
contain different approaches to modernise and update the provisions of the current
DFMSD. It should explain how these are linked to the different legal delivery instruments.
The most ambitious modernisation option should be more specific on the precise measures
it would include.
(3) The report should better explain why it does not discard options without the safety net
upfront. The problem description demonstrates that the safety net ensures an important
element of trust. Without it the options risk to be ineffective on the consumer protection
objectives.
(4) The report should explore whether including DFMSD provisions in the Consumer
Rights Directive may result in unintended consequences such as increased complexity of
the Consumer Rights Directive.
(5) The report should strengthen the impact analysis. In particular, it should provide
further explanation related to the cost to businesses, potential consumer detriment and the
impact on SMEs.
(6) The report should provide more detail on the assumptions underpinning estimates (e.g.
artificial 10% reduction of the consumer benefit in absence of the safety net), the data
sources and the calculation methods for all key estimates, in particular the calculation of
costs and benefits. It should present clearly the limitations and how they are addressed.
(7) The report should be more specific on the timeframe for the evaluation of the newly
included provisions in the Consumer Rights Directive.
(8) The views of the various stakeholder groups – including dissenting views – should be
reflected throughout the report.
The Board notes the estimated costs and benefits of the preferred option(s) in this
initiative, as summarised in the attached quantification tables.
Some more technical comments have been sent directly to the author DG.
(D) Conclusion
The DG may proceed with the initiative.
The DG must take these recommendations into account before launching the
interservice consultation.
If there are any changes in the choice or design of the preferred option in the final
version of the report, the DG may need to further adjust the attached quantification
tables to reflect this.
Full title Proposal to review the Directive on Distance Marketing of
Consumer Financial Services (2002/65/EC) and amend
Directive (2011/83/EU) on consumer rights
Reference number PLAN/ 2020/7021
Submitted to RSB on 10 November 2021
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Date of RSB meeting 8 December 2021
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ANNEX – Quantification tables extracted from the draft impact assessment report
The following tables contain information on the costs and benefits of the initiative on
which the Board has given its opinion, as presented above.
If the draft report has been revised in line with the Board’s recommendations, the content
of these tables may be different from those in the final version of the impact assessment
report, as published by the Commission.
Overview of Benefits – Preferred Option
Description Amount Comments
Direct benefits
Reduced recurrent costs
for communication with
consumers
EUR 78,1 million (M) Figures drawn from VVA supporting study estimates
Beneficiaries: financial services providers
Clarification of the
application of DMFSD
EUR 42,1-48,1 M Figures drawn from VVA supporting study estimates
Beneficiaries: consumers
Improve timing provision
key info
EUR 42,1-45,1 M Figures drawn from VVA supporting study estimates
Beneficiaries: consumers (reduction in consumers’
financial detriment and monetised time losses).
Adapt information
provision to channel
EUR 36,1-42,1 M Figures drawn from VVA supporting study estimates
Beneficiaries: consumers (reduction in consumers’
financial detriment and monetised time losses).
Prohibition default
options
EUR 42,1-48,1 M Figures drawn from VVA supporting study estimates
Beneficiaries: consumers (reduction in consumers’
financial detriment and monetised time losses).
Cross-border trade:
increase options for
EUR 42,1-48,1 M Figures drawn from VVA supporting study estimates
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consumers
Beneficiaries: consumers (reduction in consumers’
financial detriment and monetised time losses).
Indirect benefits
Not available
Overview of costs – Preferred option
Citizens/Consumers Businesses Administrations
One-off Recurrent One-off Recurrent One-off Recurrent
Transposition/Ad
aptation
Direct costs - - - 0,8 M -
Indirect costs Not available
Public
Authorities
monitoring and
enforcement
Direct costs - - - - 5,1 M
Indirect costs Not available
Familiarisation
with new
legislation
Direct costs - 36,1 M - - -
Indirect costs Not available
Cost of
updating/adaptin
g IT systems
Direct costs - 20,8 M - - -
Indirect costs Not available
Updating
contractual
documentation
Direct costs - 24,1 M - - -
Indirect costs Not available
Staff training Direct costs - 1,6 M - - -
Indirect costs Not available
Complaint
handling
Direct costs - - 13,7 M - -
Indirect costs Not available
Electronically signed on 10/12/2021 14:29 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482