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With the spread of digitalisation, which has been accelerated by the Covid-19 crisis, the
sale and marketing of financial service products, such as consumer credit, insurances,
or payment accounts, is increasingly moving online. This creates new opportunities, but
also substantial risks for consumers, who may be mis-sold overly complex or costly
products that they do not always need. At the same time, traditional distance-marketing
techniques such as cold calling, are still used to lure the most vulnerable consumers,
such as the elderly, into purchasing complex or costly financial service products. In that
context, it is crucial for EU legislation to adequately protect consumers when they
purchase financial services at a distance, regardless of the means of communication
used.
• The Distance Marketing of Financial Services Directive (“DMFSD”) provides a legal
framework governing the distance marketing of financial services. It has increased
the protection of consumers purchasing financial services at a distance by laying down
rules on (i) the information that consumers must receive before concluding a contract
(ii) introducing a 14-day right of withdrawal (iii) and by regulating unsolicited distance
sales and communications.
• Since the entry into force of the DMFSD (2002), horizontal and product-specific
legislation has been implemented (for example, the Insurance Distribution Directive,
or the Consumer Credit Directive). However, the DMFSD is still relevant to protect
consumers when it comes to aspects not covered by product-specific legislation and for
new products which constantly come into the market.
• Indeed, digitalisation means that new financial products come into the market at an
increased pace and are increasingly offered online (recent examples include peer-to-
peer lending, increased online offers of short-term high-cost loans also called “payday”
loans, and buy-now-pay-later schemes such as Klarna). At the same time, the number
of physical bank branches is steadily decreasing.
• It is therefore important for consumers to be duly protected whenever new financial
products and technologies are launched into the market, and when they purchase
financial products at a distance (e.g. online or on the phone) which are not, or not
entirely covered by product-specific legislation.
• In particular, the receipt of relevant pre-contractual information by consumers
before purchasing such products, including information on costs and on the right of
withdrawal, is crucial in order to enable consumers to make an informed choice. It also
prevents consumers from purchasing predatory products which they do not need, or
which comprise hidden costs, such as certain payday loans offered online, or insurance
products offered via the phone. The existence of a right of withdrawal is also crucial
in order to enable consumers to change their minds, in particular when they are mis-
sold a product which does not suit their needs.
• While there are both compliance and enforcement problems related to the application
of the DMFSD, these problems should urgently be solved by revising the Directive
and strengthening the safeguards which it comprises, in order to ensure a high level of
consumer protection in the face of the increased digitalisation of the financial services
sector. As an alternative, the rights contained in the DMFSD could be duly integrated
into other European legislation (such as the Consumer Rights Directive) as long as they
are equally updated and safeguarded.
• As such, the Directive should be updated to:
- include more precise rules on the form, prominence and timing of information
disclosure;
- ensure that the procedure to exercise the right of withdrawal is simple and
straightforward for consumers;
- include a ban on all unsolicited sales, including via practices used to induce
consumer consent such as pre-ticked boxes;
- to subject all unsolicited communications related to financial services to an “opt
in” rule, without exceptions, given the important impact that the purchase of
financial service products can have on a consumer’s life.
• The revised Directive should also include additional safeguards. For example,
comparison tools should be strictly regulated to make sure that they are
truly objective and independent and pre-ticked boxes should be prohibited.
• Finally, enforcement capabilities of national authorities should be strengthened,
ensuring that they have sufficient power and resources available, and coordination of
the various authorities in charge of enforcing the DMFSD should be enhanced.
• Finally, any inconsistencies and overlaps with horizontal and product specific
legislations, giving rise to legal uncertainty, should be clarified