Edited by Fabrizio Cascinelli, Mario Zanin, Francesco Della Scala
The European Union has adopted new rules in order to update the regulation of financial services concluded at a distance in the light of the digital transformation that has been underway for several years now and which has increased the use of digital tools by consumers, also with regard to the conclusion of financial services.
The initiative to review the current Distance Marketing of Financial Services Directive dating back to 2002 (Directive 2002/65/EC) stems from the ‘New Consumer Agenda’ published by the European Commission in November 2020, which, among the planned actions for the benefit of European consumers to be implemented by 2025, recognized the necessity to increase the protection of consumers who conclude, always more frequently, financial services online, by telephone or through other forms of distance marketing.
For this purpose, in May 2022 the European Commission started working on the review of such legislation, which was realized through the publication in the Official Journal of the EU on 28 November 2023 of Directive (EU) 2023/2673 amending Directive 2011/83/EU (Consumer Rights Directive) in respect of contracts for financial services concluded at a distance and repealing Directive 2002/65/EC (Distance Marketing of Consumer Financial Services Directive).
Specifically, the new Directive (i) provides for the repeal of Directive 2002/65/EC concerning the distance marketing of consumer financial services and (ii) introduces the provisions for financial services contracts concluded at a distance within Directive 2011/83/EU on consumer rights by introducing a new Chapter III bis ‘Rules on distance contracts for financial services’.
The repeal of the 2002 legislation – with effect from 19 June 2026 – depends by, on one side, the fact that specific legislation on financial services has been progressively introduced in the Union, which has led to considerable overlapping of rules, and, on the other side, by the progress of digitalization, which has contributed to market developments that were not foreseen at the time of the approval of the Directive.
The introduction of Chapter III bis within the 2011 Directive, instead, realized the extension of the scope of application of that Directive which now concerns contracts concluded at a distance with consumers but excludes financial services. In this way, the European legislator intends to ensure clarity and legal certainty by also bringing into this new Chapter the rules of Directive 2002/65/EC that are still relevant and necessary.
In particular, the rules introduced in the new Chapter concern the right to pre-contractual information (including adequate explanations on proposed contracts) and the right of withdrawal, as well as the online fairness that must be guaranteed when financial services contracts are concluded electronically.
On this last point, reference is made to the introduction of the right of consumers to ask for human intervention on sites that use fully automated information tools, such as, for example, robo-advice (advice) and chat boxes (customer help), as well as to the additional protection rules with regard to online interfaces aimed at preventing consumers from being misled or ‘pushed’ towards certain choices rather than others.
It should be noted that certain consumer financial services are regulated by specific European Union acts, which continue to apply to those financial services; therefore, in order to ensure legal certainty and to ensure that there is no duplication or overlap of rules, it is made clear in the recitals of the new Directive that the rules of the specific European Union acts relating to the specific areas covered by the new Directive will prevail, unless otherwise provided in those acts.
If, instead, the European Union acts regulating specific financial services do not provide rules on certain matters (e.g. on the right of withdrawal), the provisions of this Directive concerning those specific unregulated matters will have to be applied.
Member States have 24 months to transpose the Directive; they must adopt and publish the laws, regulations and administrative provisions in order to comply with the Directive by 19 December 2025 and in order to apply them by 19 June 2026.
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Contact Fabrizio Cascinelli – Partner, PwC TLS Avvocati e Commercialisti