(1)

Directive 2002/65/EC of the European Parliament and of the Council (3) lays down rules at Union level concerning the distance marketing of consumer financial services. At the same time Directive 2011/83/EU of the European Parliament and of the Council (4) lays down, among others, rules applicable to distance contracts for the sale of goods and provision of services concluded between a trader and a consumer.

(2)

Article 169(1) and Article 169(2), point (a), of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through the measures adopted pursuant to Article 114 thereof. Article 38 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) provides that Union policies are to ensure a high level of consumer protection.

(3)

Within the framework of the internal market, in order to safeguard freedom of choice, a high degree of consumer protection in the area of financial services contracts concluded at a distance is required in order to enhance consumer trust and confidence in distance selling.

(4)

Ensuring the same high level of consumer protection across the internal market is best achieved through full harmonisation. Full harmonisation is necessary in order to ensure that all consumers in the Union enjoy a high and equivalent level of protection of their interests and to create a well-functioning internal market. Member States should therefore not be allowed to maintain or introduce provisions in their national legislation, other than those laid down in this Directive, with respect to aspects covered by this Directive, unless otherwise provided for in this Directive. Where no such harmonised provisions exist, Member States should remain free to maintain or introduce provisions in their national legislation.

(5)

Directive 2002/65/EC has been the subject of different reviews. Those reviews revealed that the progressive introduction of Union sector-specific legislation has led to significant overlaps of that legislation with Directive 2002/65/EC, and that digitalisation exacerbated some aspects that are not fully addressed by that Directive.

(6)

Digitalisation has contributed to market developments that were not foreseen at the time of the adoption of Directive 2002/65/EC. In fact, the rapid technological developments since then have brought significant changes to the financial services market. Although many sector-specific legal acts have been adopted at Union level, financial services offered to consumers have evolved and diversified considerably. New products have appeared, in particular in the online environment, and their use continues to develop, often in a fast and unpredicted manner. In this regard, the horizontal application of Directive 2002/65/EC remains relevant. The application of that Directive to consumer financial services not regulated by sector-specific Union legislation has meant that a set of harmonised rules applies to the benefit of consumers and traders. That ‘safety net’ feature contributes to ensuring a high level of consumer protection, while ensuring a level playing field among traders.

(7)

In order to address the fact that the progressive introduction of Union sector-specific legislation has led to significant overlaps of that legislation with Directive 2002/65/EC and that digitalisation exacerbated some aspects that are not fully addressed by that Directive, including how and when information should be provided to the consumer, it is necessary to revise the rules applicable to financial services contracts concluded between a consumer and a trader at a distance, while at the same time ensuring the application of the ‘safety net’ feature for financial services which are either not covered by Union sector-specific legislation or are excluded from the scope of Union acts governing specific financial services.

(8)

In order to ensure a consistent level of protection for consumers throughout the Union and to prevent divergences hampering the conclusion of financial services contracts within the internal market, rules are necessary to provide legal certainty and transparency for traders, including micro, small and medium-sized enterprises, and to provide consumers in all Member States with legally enforceable rights and obligations. Member States are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of the rules transposing this Directive. The notion of micro, small and medium-sized enterprises should be understood as defined in Article 2 of the Annex to Commission Recommendation 2003/361/EC (5).

(9)

Directive 2011/83/EU, similarly to Directive 2002/65/EC, provides for a right to pre-contractual information and a right of withdrawal for certain consumer contracts concluded at a distance. The complementarity between those directives is, however, limited since Directive 2011/83/EU does not cover financial services, which are defined in that Directive as services of a banking, credit, insurance, personal pension, investment or payment nature. In this context, a housing savings account and a consumer credit agreement should be considered to be financial services. The selling of goods such as precious metals, diamonds, wine or whiskey should not be considered to be a financial service per se.

(10)

Extending the scope of Directive 2011/83/EU to cover financial services contracts concluded at a distance should ensure the necessary complementarity. However, due to the specific nature of consumer financial services, in particular by reason of their complexity, it is not appropriate for all the provisions of Directive 2011/83/EU to apply to consumer financial services contracts concluded at a distance. By adding a dedicated chapter with rules applicable only to consumer financial services contracts concluded at a distance to Directive 2011/83/EU, the necessary clarity and legal certainty can be ensured.

(11)

Financial services contracts concluded in some other manner than at a distance are not covered by this Directive. Member States can therefore determine, in accordance with Union law, which rules apply to such contracts, including by applying the requirements set out in this Directive to contracts not included within its scope.

(12)

While not all the provisions of Directive 2011/83/EU should apply to financial services contracts concluded at a distance due to the specific nature of those services, a number of provisions of Directive 2011/83/EU, such as relevant definitions and the rules on additional payments, enforcement, inertia selling and reporting, should also apply to financial services contracts concluded at a distance. The application of those provisions ensures complementarity between the different types of contracts concluded at a distance.

(13)

With regard to penalties, Member States should lay down the rules on penalties applicable to infringements of provisions in their national legislation adopted pursuant to this Directive and should take all measures necessary to ensure that they are implemented. The penalties that are provided for should be effective, proportionate and dissuasive, in line with Article 24(1) of Directive 2011/83/EU. This Directive should also include specific provisions on the imposition of penalties in accordance with Article 21 of Regulation (EU) 2017/2394 of the European Parliament and of the Council (6) for distance contracts concluded between a trader and a consumer for the supply of financial services. The other provisions on penalties set out in Article 24(2) to (5) of Directive 2011/83/EU do not apply to distance contracts concluded between a trader and a consumer for the supply of financial services.

(14)

A dedicated chapter in Directive 2011/83/EU should contain the rules of Directive 2002/65/EC that are still relevant and necessary, in particular those concerning the right to pre-contractual information and the right to withdrawal, and rules ensuring online fairness when financial service contracts are concluded at a distance.

(15)

Since distance financial services contracts are most commonly concluded by electronic means, rules on ensuring online fairness when financial services are contracted at a distance should contribute to the achievement of the goals laid down in Article 114 TFEU and Article 38 of the Charter. The rule on adequate explanations should ensure added transparency and provide the consumer with the right to request human intervention when he or she interacts with the trader through fully automated online interfaces, such as chatbots, roboadvice, interactive tools or similar means.

(16)

Certain consumer financial services are governed by specific Union acts, which continue to apply to those financial services. This Directive does not amend existing sectoral Union acts. In order to ensure legal certainty, and to ensure that there are no duplications or overlaps, it should be clarified that, where other Union acts governing specific financial services contain rules on pre-contractual information, on the right of withdrawal or on adequate explanations, and irrespective of the level of detail of those rules, only the respective provisions of those other Union acts should apply to those specific consumer financial services unless otherwise provided in those acts, including the explicit option for Member States to exclude the application of those specific rules. In this context, whenever a specific Union act lays down rules offering Member States the possibility not to apply that specific Union act but instead refer to the application of another specific Union act, such as in Article 3(3), point (a), of Directive 2014/17/EU of the European Parliament and of the Council (7), the rules of that specific Union act should prevail and this Directive should not apply. Similarly, in those instances where the specific Union act provides for rules concerning adequate alternative arrangements to ensure consumers receive timely information at the pre-contractual stage, such as in Article 3(5) of Directive 2014/17/EU, the rules laid down in that specific Union act should prevail and this Directive should not apply.

(17)

With regard to pre-contractual information, certain Union acts governing specific financial services contain rules adapted for those specific financial services designed to ensure that consumers are able to understand the essential characteristics of the proposed contract. For instance, Regulation (EU) 2019/1238 of the European Parliament and of the Council (8) and Directives 2014/92/EU (9), 2014/65/EU (10) and (EU) 2016/97 (11) of the European Parliament and of the Council provide for pre-contractual information in the basic specific Union act and also empower the Commission to adopt delegated or implementing acts. Only the pre-contractual information requirements laid down in such Union acts should apply to those specific consumer financial services, unless otherwise provided in those acts. This should also be the case where the Union act governing specific financial services provides different or minimal rules on pre-contractual information in comparison with the rules laid down by this Directive.

(18)

With regard to the right of withdrawal, where the Union act governing specific financial services gives consumers time to consider the implications of the contract signed, and irrespective of what it is called by that Union act, only the respective provisions of that Union act should apply to those specific consumer financial services unless otherwise provided for in that act. For instance, when Article 186 of Directive 2009/138/EC of the European Parliament and of the Council (12) applies, it is the rules concerning the ‘cancellation period’ laid down in Directive 2009/138/EC that apply and not the rules on the right of withdrawal laid down in this Directive, and when Article 14(6) of Directive 2014/17/EU applies, it is the rules concerning the possibility to choose between the right of withdrawal and the reflection period laid down in Directive 2014/17/EU that apply and not the rules on the right of withdrawal laid down in this Directive.

(19)

In line with Directive 2014/17/EU and Directive (EU) 2023/2225 of the European Parliament and of the Council (13), Member States can apply those Directives, in accordance with Union law, to areas not covered by their scope. Therefore, it should be clarified that Member States can apply Article 14(6) of Directive 2014/17/EU to credit agreements, despite the fact that such agreements are exempted from the scope of that Directive by Article 3(2) thereof. Similarly, it should be clarified that Member States can apply Articles 26 and 27 of Directive (EU) 2023/2225 to credit agreements, despite the fact that such agreements are exempted from the scope of that Directive by Article 2(2) thereof.

(20)

With regard to rules on adequate explanations, certain Union acts governing specific financial services, such as Directives 2014/17/EU, 2014/65/EU and (EU) 2016/97, already lay down rules on adequate explanations to be provided by traders to consumers with respect to the proposed contract. In order to ensure legal certainty, the rules on adequate explanations set out in this Directive should not apply to financial services falling under Union acts governing specific financial services that contain rules on adequate explanations to be provided to the consumer prior to the conclusion of the contract, irrespective of what it is called by that Union act.

(21)

Where Union acts governing specific financial services provide for rules on pre-contractual information but do not establish rules on the right of withdrawal, the provisions on the right of withdrawal under this Directive should apply. For instance, Directive 2009/138/EC sets out rules on pre-contractual information requirements but with respect to non-life insurance does not set out a right providing time to the consumer to consider the implications of the contract signed. In that case, rules on pre-contractual information laid down in the Union act governing specific financial services and the rules on the right of withdrawal as laid down in this Directive should apply. Where a Union act governing specific financial services does not contain provisions concerning information about the right of withdrawal, the trader should provide that information in accordance with this Directive in order to ensure that the consumer is properly aware of relevant information.

(22)

Where Union acts governing specific financial services provide for rules on pre-contractual information but do not establish rules on the right of withdrawal, the withdrawal period set out in this Directive should apply and begin either from the day of the conclusion of the distance contract in accordance with this Directive, or from the date on which the consumer receives the contractual terms and conditions and pre-contractual information in accordance with the Union acts governing those specific financial services, if that day is later than the day of the conclusion of the distance contract. Where a Union act governing specific financial services does not contain provisions concerning information about the right of withdrawal, in order for the withdrawal period to begin, the trader should, in addition to the contractual terms and conditions and pre-contractual information in accordance with the Union act governing those specific financial services, also provide the information on the right of withdrawal set out in this Directive.

(23)

Consumer financial services contracts negotiated at a distance involve the use of means of distance communication which are used as part of a distance-sales or service-provision scheme not involving the simultaneous presence of the trader and the consumer. In order to respond to the constant development of those means of communication, principles should be defined that are valid even for those means which are not yet in widespread use or which are not yet known.

(24)

A single financial service contract involving successive operations or separate operations of the same nature performed over time may be subject to different legal treatment in different Member States, but it is important that the rules are applied in the same way in all the Member States. To that end, it is appropriate to provide that the provisions governing financial services contracts concluded at a distance should apply to the first of a series of successive operations, or separate operations, of the same nature, performed over time which may be considered as forming a whole, irrespective of whether that operation or series of operations is the subject of a single contract or several successive contracts. Where there is no initial agreement, the provisions governing the financial services contracts concluded at a distance should apply to all successive or separate operations, except for the pre-contractual information, which should apply only to the first operation. For example, an ‘initial service agreement’ may be considered to be the opening of a bank account, and ‘operations’ may be considered to be the deposit or withdrawal of funds to or from the bank account. Adding new elements to an initial service agreement, such as a possibility to use an electronic payment instrument together with one’s existing bank account, does not constitute an ‘operation’ but an additional contract.

(25)

In order to delimit the scope of application of this Directive, the rules concerning consumer financial services contracts concluded at a distance should not apply to services provided on a strictly occasional basis and outside a commercial structure dedicated to the conclusion of distance contracts.

(26)

The use of means of distance communications offers good opportunities to obtain information and should not lead to an unwarranted restriction on the information provided to the consumer. When using voice telephony communication, the trader can, if the consumer explicitly agrees, provide only a limited set of pre-contractual information before the consumer is bound by the distance contract. The trader should provide the remaining information immediately after the conclusion of the contract. In the interests of transparency, requirements should be laid down with regard to when the information should be provided to the consumer prior to the conclusion of the distance contract and how that information should reach the consumer. In order to be able to make their decisions in full knowledge of the facts, consumers should receive all pre-contractual information in good time before and not at the same time as the conclusion of the distance contract or any corresponding offer. This is to ensure that the consumer has sufficient time to read and understand the pre-contractual information, compare offers and make an informed decision. Where the information is provided less than a day before the conclusion of the distance contract for financial services, the trader should be obliged to remind the consumer, on a durable medium, about the possibility to withdraw from the distance contract for a financial service. In the event that pre-contractual information is provided less than one day before the consumer is bound by any distance contract, the trader should remind the consumer, on a durable medium, between one and seven days after the conclusion of the contract, of the possibility to withdraw from the distance contract.

(27)

The information requirements should be modernised and made future-proof. Therefore, the trader should communicate to the consumer its telephone number, but also its email address or details of other means of communication which can encompass various methods of communication, as well as the information on where to address complaints. The requirements on the complaint-handling policy can be determined by Member States. Consumers should be informed about the specific additional costs of using the means of distance communication. Some traders use automated decision-making to differentiate prices between different consumer groups and in certain cases prices are adapted to the consumers’ individual price sensitivity. For that reason, consumers should be informed before they are bound by a distance contract that the price of the financial service was personalised on the basis of automated decision-making.

(28)

Under Directive 2002/65/EC Member States were able to maintain or introduce more stringent provisions on prior information requirements provided that those provisions were in conformity with Union law. Several Member States have maintained or introduced more stringent information requirements in that context. The possibility to offer a higher level of consumer protection with respect to the rules on pre-contractual information should remain. This should apply both to the information catalogue and to the ways of presenting information. The application of more stringent rules can also include the application of requirements set out in Union acts concerning specific financial services to financial services not covered by those sectoral Union acts.

(29)

Certain financial services might integrate environmental or social factors into their investment strategy. In order to be able to make an informed decision, the consumer should also be informed about the particular environmental or social objectives targeted by the financial service.

(30)

All pre-contractual information should be provided on a durable medium and in a way that the information is both easy for the consumer to comprehend and is in a readable format. Being in a readable format means using characters of a readable size and in colours that do not diminish the comprehensibility of the information, including when the document is presented, printed or photocopied in black and white. Additionally, overly lengthy and complex descriptions, small print, and excessive use of hyperlinks should be avoided, as much as possible, as these are methods that diminish the understanding of consumers. If the information cannot be provided on a durable medium before the conclusion of the contract due to the media chosen by the consumer, it should be provided immediately after the conclusion.

(31)

The information requirements should be adapted to take into account the technical constraints of certain media, such as the restrictions on the number of characters on certain mobile telephone screens. In the case of mobile telephone screens, where the trader has customised the content and presentation of the online interface for such devices, the following information should be provided upfront and in the most prominent manner possible: information concerning the identity of the trader; the main characteristics of the consumer financial service; the total price to be paid by the consumer to the trader for the consumer financial service including all taxes paid via the trader or, when an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it; and the existence or absence of the right of withdrawal, including the conditions, time limit and procedures for exercising that right. The rest of the information could be layered. However, all the information should be provided on a durable medium before the conclusion of the distance contract.

(32)

When providing pre-contractual information through electronic means, such information should be presented in a clear and comprehensible manner. In that regard, the information could be highlighted, framed and contextualised effectively within the display screen. The technique of layering, whereby certain pre-contractual information requirements are considered to be key elements and are thus placed prominently on the first layer and other detailed parts of the pre-contractual information are presented in accompanying layers, has been tested and has been proved to be useful for certain financial services. When making use of the technique of layering pursuant to this Directive, the trader should provide, on the first layer of the electronic means, at least, the identity and the main business of the trader, the main characteristics of the financial service, the total price to be paid by the consumer, notice of the possibility that other taxes or costs might exist and the existence or absence of a right of withdrawal. The other remaining pre-contractual information requirements could be displayed in other layers. When layering is used, all the information should be easily accessible to the consumer and the use of accompanying layers should not distract the customer’s attention from the content of the document and should not obscure key information. It should be possible to print all the parts of the pre-contractual information in one single document.

(33)

Another possible manner of providing pre-contractual information through electronic means is the ‘table of contents’ approach using expandable headings. At the top level, consumers could find the main topics, each of which can be expanded by clicking on it, so that the consumers are directed to a more detailed presentation of the relevant information. In this way, the consumer has all the required information in one place, while retaining control over what to review and when. Consumers should have the possibility to download all the pre-contractual information document and to save it as a stand-alone document.

(34)

Consumers should have a right of withdrawal without penalty and with no obligation to provide justification. When the right of withdrawal does not apply because the consumer has expressly requested the performance of a distance contract before the expiry of the withdrawal period, the trader should inform the consumer of this fact before the start of the performance of the contract.

(35)

The withdrawal period should expire 14 calendar days after either the day of the conclusion of the distance contract or the day on which the consumer receives both the pre-contractual information and the contractual terms and conditions, if that day is later than the date of the conclusion of the distance contract. The period should be extended to 30 calendar days in distance contracts relating to personal pension operations. In order to increase legal certainty, if the consumer has not received that pre-contractual information and contractual terms and conditions, the withdrawal period should expire at the latest 12 months and 14 calendar days after the conclusion of the distance contract. The withdrawal period should not expire if the consumer has not been informed on a durable medium about the right of withdrawal.

(36)

In order to ensure the effective exercise of the right of withdrawal, the procedure for the exercise of that right should not be more burdensome than the procedure for the conclusion of the distance contract.

(37)

In addition to other existing means of withdrawal, such as the form laid down in Annex I(B) of Directive 2011/83/EU, where the trader offers the possibility of concluding distance contracts by means of an online interface, such as through a website or application, the trader should be obliged to enable the consumer to withdraw from such a contract via a function. This should ensure that consumers can withdraw from a contract just as easily as they can conclude it. To achieve this, the trader should provide the consumer with a withdrawal function that is easy for the consumer to find, continuously available and clearly visible during the withdrawal period. The consumer should be able to find and access the function in an easy and simple manner. For example, the consumer should not have to undertake procedures to find or access the function, such as downloading an application if the contract was not concluded via that application. To facilitate the process, the trader could for example provide hyperlinks leading the consumer to the withdrawal function. The consumer should be allowed to make the withdrawal statement and to provide or confirm the information necessary to identify the contract. For instance, a consumer who has already identified himself or herself, for example by logging in, should be able to withdraw from the contract without the necessity of providing once more their identification or, where applicable, the identification of the contract from which he or she wishes to withdraw. In order to avoid the unintended exercise of the right of withdrawal by the consumer, the trader should require the consumer to confirm the decision to withdraw by means that confirm the consumer’s intention to do so. If the consumer has ordered multiple goods or services within the same distance contract, the trader can provide the consumer with the possibility to withdraw from a part rather than the whole of the contract. When the consumer uses the function to exercise the right of withdrawal, the trader should communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without undue delay. This obligation should apply not only to distance contracts for financial services, but to all distance contracts that are subject to the right of withdrawal under Directive 2011/83/EU. The objective of the withdrawal function is to increase the awareness of consumers of their right of withdrawal and to simplify the possibility of benefiting from that right, since when it comes to distance selling of both financial or non-financial products or services, the consumer does not have the possibility to receive explanations in person, or to learn in person about the possibly complex or extensive nature of a product or service. Therefore, this obligation should be laid down not only for distance contracts for financial services, but also for distance contracts for other goods and services where Union law provides for a right of withdrawal to enhance the possibilities for consumers to get out of contracts by means of withdrawal.

(38)

In addition to the pre-contractual information provided to them by the trader, consumers may still need assistance in order to decide which financial service is the most appropriate for their needs and financial situation. The main objective of the provision of adequate explanation is to ensure that the consumer understands the financial service offered by the trader before he or she signs the contract. In order to ensure that this objective is fulfilled, that adequate explanation should be given in a timely manner which allows the consumer sufficient time to review it prior to the conclusion of the contract. The mere reproduction of the pre-contractual information might not be sufficient and it should therefore be avoided. Therefore, Member States should ensure that before the conclusion of a financial service contract at a distance, traders provide such assistance in relation to the financial services which they offer to the consumer by providing adequate explanations concerning the essential characteristics of the contract, including the possible ancillary services, and the specific effects which that contract may have on the consumer. With regard to the essential characteristics of the contract, the trader should explain the main features of the offer, such as the total price to be paid by the consumer to the trader and the description of the main characteristics of the financial service, and its impact on the consumer, including, where applicable, whether the ancillary services can or cannot be terminated separately and the consequences of such termination. With regard to the specific effects of the proposed contract, the trader should also explain the main consequences of non-compliance with the contractual obligations thereof.

(39)

Contracts falling under the scope of this Directive can be of different financial natures and thus can vary considerably. Therefore, Member States could adapt the way in which such explanations are given to the circumstances in which the financial service is offered and to the consumer’s need for assistance, taking into account the consumer’s knowledge and experience of the financial service and its nature. In order to ensure that the consumer obtains adequate explanations, Member States should encourage traders to provide such explanations to the consumer in an easy and straightforward manner, in the interest of the consumer.

(40)

The obligation of providing adequate explanations is particularly important when consumers intend to conclude a financial service contract at a distance and the trader provides explanations through fully automated online tools such as chatbots, roboadvice, interactive tools or similar means. In order to ensure that the consumer understands the effects that the contract may have on his or her economic situation, the consumer should always, at the pre-contractual phase, be able to obtain human intervention on behalf of the trader, free of charge, during business hours of the trader. The consumer should also have the right, in justified cases and without undue burden for the trader, to request human intervention after the distance contract has been concluded. This could include the right to human intervention when renewing a contract, in the event of major difficulties for the consumer or when further explanation regarding the contractual terms and conditions is needed.

(41)

Dark patterns on traders’ online interfaces are practices that materially distort or impair, either on purpose or in effect, the ability of consumers who are recipients of the financial service to make autonomous and informed choices or decisions. This is particularly true for financial services contracts concluded at a distance. Such practices can be used by traders to persuade the consumers who are recipients of their service to engage in unwanted behaviours or to take undesired decisions which may have negative consequences for them. Traders should therefore be prohibited from deceiving or ‘nudging’ consumers who are recipients of their service and from distorting or impairing their autonomy, decision-making, or choice via the structure, design or functionalities of an online interface or a part thereof. This can include, but is not limited to, exploitative design choices to direct the consumer to choices or actions that benefit the trader, but which may not be in the consumer’s interests, by presenting choices in a non-neutral manner, such as giving more prominence to certain choices through visual, auditory, or other components, when asking the consumer for a decision. While Regulation (EU) 2022/2065 of the European Parliament and of the Council (14) prohibits intermediary service providers operating online platforms from using dark patterns in the design and organisation of their online interfaces, this Directive should oblige Member States to prevent traders offering financial services at a distance from using such patterns when concluding contracts for such services. The provisions of that Regulation and this Directive are therefore complementary, since they apply to traders acting in different capacities. Since, by reason of their complexity and inherent serious risks, financial services might necessitate further detailed requirements regarding dark patterns, Member States, by way of derogation from the full level of harmonisation, should be allowed to maintain or introduce more stringent provisions, provided that such provisions are in conformity with Union law. That possibility is in line with Article 3(9) of Directive 2005/29/EC of the European Parliament and of the Council (15), with regard to unfair commercial practices related to financial services, which provides that Member States can also impose requirements which are more restrictive or prescriptive in the framework of financial services.

(42)

Financial services concluded at a distance can be marketed on social media, for instance, by influencers. Consumers could be encouraged to make decisions without reflecting on the consequences and risks implied and they could purchase financial services which do not correspond to their needs. The Commission should assess traders’ marketing practices on social media promoting financial services concluded at a distance and the possible need for action in that regard. This should, for example, be done in the light of the application of Directive 2005/29/EC and other relevant Union legislation to such practices. There have been instances in Member States where influencer marketing practices have misled consumers through advertising certain financial services products on social media platforms without informing about the risk of loss for consumers. Directive 2005/29/EC contains provisions to ensure that misleading practices which deceive or are likely to deceive the average consumer are prohibited and that material information that the average consumer needs in order to take an informed transactional decision cannot be omitted. Those provisions can be deemed to cover influencer marketing practices on social media platforms.

(43)

Directive 2011/83/EU should therefore be amended accordingly.

(44)

Directive 2002/65/EC should therefore be repealed.

(45)

Since the objective of this Directive, namely to contribute to the proper functioning of the internal market through the achievement of a high level of consumer protection, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(46)

In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (16), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified,

(1)

Article 3 is amended as follows:

(2)

in Article 6(1), point (h) is replaced by the following:

(3)

the following Article is inserted:

(4)

the following Chapter is inserted:

‘ CHAPTER IIIa

Rules concerning financial services contracts concluded at a distance

(*1)  Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ L 173, 12.6.2014, p. 149)."

(*2)  Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor-compensation schemes (OJ L 84, 26.3.1997, p. 22)."

(*3)  Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ L 60, 28.2.2014, p. 34)."

(*4)  Directive (EU) 2023/2225 of the European Parliament and of the Council of 18 October 2023 on credit agreements for consumers and repealing Directive 2008/48/EC (OJ L, 2023/2225, 30.10.2023, ELI: http://data.europa.eu/eli/dir/2023/2225/oj)."

(*5)  Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ L 277, 27.10.2022, p. 1).’;"

(5)

in Article 24, the following paragraph is added:

(6)

in Article 29, paragraph 1 is replaced by the following:

(7)

Annex I is amended in accordance with Annex I to this Directive.