Investment in tangible goods in Greece
(By Inka Greece)

Investments in tangible goods: consumers’ access to non regulated markets.

INTRODUCTION
Competition, financial disintermediation, along with the opportunities offered by the new technologies, are the major factors that enhanced competition for traditional banking products such as mortgages, consumer credit and deposits. These factors also operated between domestic and foreign bank ,between banks and other financial institutions (especially insurance companies) and between banks and other non-financial operators.
The latter can be defined as organizations which operate either in bank segments by using a non-bank brand or which are formed by players who do not belong to the bank industry. Six types of non-banks have been identified:
On-line broker: companies specializing in on-line brokerage
Generalist: intermediary companies offering multiple services through more distribution channels
Insurer: intermediary companies referring to insurance groups offering banking products through an innovative channel
Retailer: companies selling banking products through in store network
Car financing: operators referring to car companies and financing for the purchasing of cars
Transportation: operators specializing in the supply of financial services to air companies customers
Of these six non-bank categories the most aggressive and greatest in number are on-line brokers.
All these sectors change the face of the Market and in this field and particularly the growth of institutional investors and securities markets. The growth of domestic and international capital markets in recent years has shifted a large share of the demand for debt finance from banks to markets, especially as far as large corporate borrowers are concerned, leaving the banks with higher risk credits. At the same time, the demand for securities and securitised assets has been increasing and globalizing, being no longer limited to institutional investors of a particular country. These tends, combined with the increased competition with traditional range and non traditional players , make it difficult for banks to compete with their traditional range of offers alone. The response to this challenge is either reduce excess capacity through mergers and rationalization of the distribution channels, or to increase focus on competitive strength.
European Union tries to assure the consumers protection in this new field of the market. A big number of legislation has been created on this purpose but as this kind of market scheme is elaborating the legal frame is trying to follow it with the best possible way.

A. EUROPEAN LEGISLATION
Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the Protection of Consumers in respect of Distance Contracts
In 1997 a Directive on Distance Selling was adopted for all services other than financial services. The aim of the Directive was to ensure that consumers were appropriately protected taking into account the special characteristics of making a transaction when the consumer and the provider are not face to face.
Because of the complexity of financial services this area was dealt with in a separate Directive, which was adopted in June 2002. It includes a ban on abusive marketing practices seeking to oblige consumers to buy a service they have not solicited ("inertia selling"), rules to restrict other practices such as unsolicited phone calls and e-mails ("cold calling" and "spamming"), an obligation to provide consumers with comprehensive information before a contract is concluded and a consumer right to withdraw from the contract during a cool-off period - except in cases where there is a risk of price fluctuations in the financial market.
A consumer distance contract is a contract concluded between a consumer and a supplier in an organised distance-marketing scheme run by the supplier. For a distance contract, consumers and suppliers exclusively use distance communication methods. Distance communication can mean, among other things, press adverts with order forms, a catalogue, telephone, but also teleshopping and the use of the Internet (e-commerce). “Distance selling” includes, therefore, all forms of contract concluded where both parties do not meet face to face.
The Distance Selling Directive gives rights to consumers who buy tangible goods and services at a distance throughout Europe. It applies to any consumer distance contract made under the law of an EU-Member State as well as the European Economic Area (EEA). The directive provides a number of fundamental legal rights for consumers, ensuring a high level of consumer protection throughout the EU. These include provision of comprehensive information prior to the contract, confirmation of that information within a durable medium (such as in writing),contract performed within 30 days from the day after the consumer’s order, protection from fraudulent use of payment by card, protection from unsolicited selling, consumer cannot contract-out or waiver his rights provided under the directive.

The following are not included in the scope of the Directive:
? contracts relating to the financial services referred to in Annex II; the list is not exhaustive;
? contracts concluded by means of automatic vending machines;
? contracts concluded with operators by using public telephones;
? contracts relating to immobile property, except for rental;
? contracts concluded at an auction.
Prior to the conclusion of any distance contract, the consumer must be provided with clear and comprehensible information concerning:
? the identity and possibly the address of the supplier;
? the characteristics of the goods or services and their price;
? delivery costs;
? the arrangements for payment, delivery or performance;
? the existence of a right of withdrawal;
? the period for which the offer or the price remains valid and the minimum duration of the contract, where applicable;
? the cost of using the means of distance communication.
This information must comply with the principles of good faith in commercial transactions and the principles governing the protection of minors. In the case of telephone calls, the caller's identity and commercial purpose must be made clear at the beginning.
The consumer must receive written confirmation or confirmation in another durable medium (electronic mail) at the time of performance of the contract. The following information must also be given in writing:
? arrangements for exercising the right of withdrawal;
? place to which the consumer may address complaints;
? information relating to after-sales service;
? conditions under which the contract may be rescinded.
The consumer has a right of withdrawal. Where the supplier has met his obligations relating to the provision of information, the consumer has at least seven working days to cancel the contract without penalty.
Where the supplier has failed to meet his obligations as regards information, this period is extended to three months. The supplier is obliged to repay the amounts paid by the consumer within thirty days.T he Directive establishes the types of contract to which the right of withdrawal does not apply. The exercising of the right of withdrawal makes it possible to cancel credit agreements concluded with the supplier or with a third party on the basis of an agreement concluded by the latter with the supplier.
In principle, the supplier has thirty days in which to perform the contract. Where the supplier fails to perform his side of the contract, the consumer must be informed and any sums paid refunded. In some cases it is possible to supply an equivalent good or service. In the event of fraudulent use of his payment card, the consumer may request cancellation of payment and reimbursement of the amounts paid. Where unsolicited goods are supplied, the consumer's failure to reply does not constitute consent. The use by the supplier of automatic calling devices or faxes requires the prior consent of the consumer.
Other distance communication techniques may be used only where there is no clear objection from the consumer.
Public bodies, consumer organisations and professional organisations may take action before the courts or before the competent administrative bodies in the event of disputes. The Member States must ensure that consumers are allowed judicial or administrative redress so that they are not deprived of protection under the law of a non-Member country.
The Member States may adopt more stringent provisions, provided that these are compatible with the Treaty, such as a ban on the marketing of certain goods and services through distance contracts
Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services
The proposal for a Directive is intended to supplement European Parliament and Council Directive 97/7/EC, which ensures appropriate consumer protection in respect of most products and services other than financial services (excluded in view of their specific characteristics). It aims to rectify this legal omission by establishing common rules to govern the conditions under which distance contracts for financial services are concluded. It amends Directive 90/619/EEC, henceforth repealed by Directive 2002/83/EC on life assurance and Directive 98/27/EC on actions for injunctions .
The Directive covers contracts for retail financial services (banking, insurance and investment services, including pension funds - an indicative list is annexed to the Directive) that are negotiated at a distance (e.g. by telephone, fax or over the Internet), i.e. by any means which do not require the simultaneous physical presence of the parties to the contract.
The Directive gives the consumer the right to reflect before concluding a contract with a supplier. The supplier is thus required to transmit a draft contract to the consumer, in writing or via a durable medium (e.g. floppy disk, CD-ROM or e-mail), including all the contractual terms and conditions. The reflection period lasts for 14 days, during which time all the terms and conditions remain valid. The parties are none the less free to agree on a longer period or to negotiate other conditions.
Right to withdraw
The consumer has the right to withdraw within 14 days (30 days in the case of mortgage loans, life assurance and operations pertaining to personal pensions) in the following circumstances:
? when the contract has been signed before the consumer has received prior notice of the terms and conditions (e.g. consumer takes out an insurance policy in order to obtain immediate cover);
? when the consumer has received the contractual terms and conditions but has been unfairly induced to conclude the contract during the reflection period.
If the consumer exercises his right of withdrawal after having already agreed to partial performance of the service, he may be required to pay the supplier for the service rendered. If the service has been rendered in its entirety before the right of withdrawal is exercised, that right can no longer be exercised and the consumer will have to pay for the service. Consumers must be informed in advance of the price to be paid (or of the basis on which it will be calculated).
In order to avoid speculative manoeuvres, the right of reflection or withdrawal does not apply to services whose price is liable to fluctuate as a result of developments on financial markets (e.g. the market in securities).
Right to reimbursement
Certain financial services, notably futures (e.g. an instruction given by a consumer to purchase a certain number of shares at a fixed price), may sometimes be totally or partially unavailable at the time of performance of the contract. In this case, the consumer is entitled to reimbursement of the sums paid over to purchase the product.
Prior consent
Like Directive 97/7/EC, this Directive prohibits the supply of services without the consumer's specific and valid consent.
The consumer's prior consent is also required for the use of automated distance communication systems without human intervention, such as faxes. As regards other means of distance communication, the Directive leaves Member States free to choose between a system whereby consumers must first indicate their consent and a system whereby consumers must indicate in advance that they do not wish to be contacted (by using "Robinson" lists).

Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises.
To protect consumers against dishonest business practices in connection with contracts negotiated away from business premises the Council adopted Directive 85/577/EEC.

The Directive applies to:
? contracts entered into between a trader and a consumer during an excursion organised by the trader away from his business premises;
? contracts entered into during a visit by a trader to a consumer's home or place of work where the visit does not take place at the express wish of the consumer, or where the consumer requested the visit but could not have known the extent of the trader's commercial activities;
? contracts in respect of which the consumer makes a contractual or non-contractual offer to receive a visit from or take part in an excursion organised by a trader.
The Directive shall not apply to:
? the construction, sale or rental of immovable property;
? the supply of foodstuffs, beverages or other goods intended for current consumption in the household and supplied by regular roundsmen;
? the supply of goods or services in cases where the contract is concluded on the basis of a trader's catalogue which the consumer may read in the absence of the trader, where there is intended to be continuity of contact between the parties in relation to the transaction, and where the right of the consumer to cancel the contract is clearly mentioned;
? insurance contracts;
? contracts for securities.
The trader is required to inform consumers in writing about their right to cancel the contract. Once consumers have been informed, they have seven days within which to exercise this right.
B. GREEK LEGISLATION
Definition of distant agreements

Distant agreements are regulated on the Greek law No 4 law 2251/94.

Distant agreements are transactions outside a commercial shop, with the difference that the communication between the contracting parties is done with the use of technical means, without their simultaneous natural presence.

In order for an agreement to be considered as distant agreement by the definition of law should the proposal for contracting the agreement and the acceptance be transmitted with the use of technical means, e.g. by post, by phone or via television, or radio etc, that is to say without the direct communication of parties. The initiative for contracting the agreement should be taken by the supplier. Thus, agreements which are contracted by distance after the initiative of the consumer are not included in the protective regulation of legislation, because in this case the declaration of will of the last one is not result of being influenced by the supplier, but result from his free and mature thought.

From this scope but also from the letter of law, where "forfeit" is mentioned , it results that in the protective field of law only the agreements that concern transaction are included. The return which the consumer is called to overwhelm can consist any good and it is not essential to consist money.

In distant agreements, the proposal for conducting the agreement is also accompanied by an effort of impressiveness of the consumer, mainly via picture and sound (e.g. advertising messages). The legislator aspired to protect the consumer from becoming an object of influence and to avoid the snatch of the legal transaction will under the state of impressiveness from the elements or the circumstances that accompany the proposal of conducting a distant agreement.

Type

According to the paragraph 1 article 4, distant agreement is invalid if during the proposal of contracting the agreement the consumer was not informed for the means of technical communication used in an explicit way, especially for the following elements:
1. the identity of supplier
2. the essential characteristics of goods or services,
3. the price, the quantity and the expenses of transport as well as the added value tax, provided that it is not included in the price,
4. the way of payment, delivery and implementation,
5. the duration of the proposal in forse for contracting the agreement and
6. the right of retraction.

From the formulation of above paragraph and mainly from the use of word "same" it results that the supplier has an obligation, on sentence of nullity, to inform the consumer relatively and with each other element or term of convention that potentially may burden him. The nullity is relative in favour of the consumer. In other words, the consumer who was not informed for any of the above elements or was informed insufficiently is able to invokes the nullity of the relative agreement.

All the above elements as well as the name and the address of the most accessible for the consumer supplier’s shop should also be included in the written proposal of the supplier for the contracting the agreement. If the consumer does not receive in writing the above information, as well as each other element essential for the free exercise of his legal rights, then the agreement is invalid in favour of the consumer. The agreement is also invalid if with the above document the consumer does not receive a separate form – model of statement of retraction. So much the document of agreement as the model of statement of retraction should, on sentence of nullity which is in favour of the consumer, be written in the language that was used in the proposal of contracting the agreement. On the contrary, the acceptance of the consumer is not required written.

Retraction- rights and obligations of the contracting parties.

As well as in the agreements contracted outside a commercial shop, so in the distant agreements the basic mean of consumer’s protection is the possibility of retraction from the agreement. The right of retraction is practised with a unilateral directed to the supplier statement of will, which is not required to include the typed document. On the contrary, with the regulation on the agreements outside a commercial shop, the law does not include the use of a registered letter for the exercise of the right of retraction, something that confirms its clear probative character.

According to paragraph 10 article 4, the right of retraction is practised unjustified within a deadline of ten weekdays, which begins for the goods from their delivery and for the services from the delivery of documents that inform the consumer that the agreement has been contracted. The formulation of law creates the impression, with regard to agreements of providing goods, that it is enough for the beginning of the deadline the delivery of the object of the agreement, without a delivery of a relative document to be required. However, the lack of a written document renders the agreement invalid in favour of the consumer, which means that it can invoke the nullity and consequently be released of the agreement whenever and without a time restriction. It is also in pact with the spirit of the legislation and the principle of the consumr’s protection, the last one to have in the disposal the document which contains all those the elements that allow the free exercise of his right of retraction.

Consequently, should be acceptable that with regard to agreements of providing goods, for the beginning of the deadline of retraction the delivery of document as well as the delivery of product is required to have taken place, starting line however will constitute the time that takes place the second. According to the explicit provision of the legislation, the resignation from the right of retraction is invalid.

According to paragraph 7 article 4, "is prohibited the income of all or part of the price even with a form of engagement, guarantee, publication or acceptance of document or other form before the delivery of the product or the provision of the service". Therefore, contrary to what is happening with the agreements outside a commercial store where the supplier, provided that it concerns of a provision of goods, is obliged to accomplish them, in the case of agreements at distance the contracting parts must accomplish their provisions simultaneously. Regarding the delivery, consequently, to the consumer of object of agreement, the claim of supplier for payment of price is mentioned. In the above agreements, payment is not prohibited even during the deadline of retraction. There is no doubt that this conclusion is resulted from the law and more specifically from the combination of provisions of paragraphs 7 and 10 of article 4, as the deadline begins from the receipt of the product, and therefore the claim of supplier for the price is necessary.

In the agreements at distance, the obligation of consumer for return of the product in its initial situation is provided. This is a regulation that aims to protect the supplier from the possibility of infringement on behalf of the consumer. The obligation of consumer to keep the products in their initial situation, consists in the undertaking of any necessary measure for the maintenance of the products. If the object is destroyed by deceit or negligence of consumer, the last one will not be able to practises the right of retraction. On the contrary, the supplier may face the danger of accidental destruction. After the payment of price at the time of delivery of product, the supplier is ensured against the consumer, as he is able in case where the consumer breaks his above obligation, to retain the price. The expenses of return of good burden the consumer. Although, the law does not mention it, what should be acceptable is that the product must be returned in a legitimate time from the exercise of right of retraction, because otherwise the supplier has the right not to accept the receipt of the product and retains the price.
Regarding the agreements from distance, the law provides a deadline of implementation of benefit of supplier, which should not exceed 30 days from the receipt of the order (article 4 paragraph 8). With the above regulation there is no suspense and the consumer is protected from the possibility of indefinite engagement against the supplier, as after the 30 days deadline, he is eligible to deny the receipt or return the product without paying the expenses of return. The same also stands for the agreements of providing services, where the consumer has the right, provided that the supplier does not satisfy his above obligation, to deny the provision and be released from the convention, even if in between the deadline of retraction has been expired, without having practised his relevant right.

In any case, if the supplier is unable to deliver the good or provide the service that was ordered, he can supply an equivalent good or provide equivalent service of the same quality also in the same price, notifying however in written to the consumer that he can return the product or the service of substitution, if he is not satisfied. Although the law does not mention it, it will be acceptable, according to the principle of good faith, that the consumer has the obligation of return of the product or refusal of service in time interval to the deadline that has been set so that he retracks from the initial agreement. In case of return of the product, the consumer is not overloaded with the expenses of return. This opinion is imposed from the principles of protection of consumer and good faith, and is according to the aim and the spirit of law. On the contrary, the consumer does not have the obligation to return the product or refusal of service in case of delivery to him of goods or provisions of services without previous order on behalf of him, when he is called to acquire them after payment or return them even without paying the expenses of the delivery. In this last case, the consumer has the right to provide the good or the service according to his crisis, without oweing any price, unless the delivery is owed to an obvious error, and therefore, provided that the nature of the good allows it, he sets it for legitimate time in the disposal of supplier (article 4 paragraphs 4). The omission of answer does not equal to any case with consent. The above regulation aims at the protection of consumer from the insistence and pushing behavior of supplier whose aim is to obtain the statement of will with any means, even with the imposition of obligations and responsibilities to the consumer, who himself did not undertake, and with the creation to him of an impression that he is committed to the activities of the supplier.

Finally, to the protection of personality of consumer and more specifically his private life, is supported also the provision of paragraph 6 of article 4, according to which "the utilisation of techniques of communication should be in such way so that not to offend the private life of consumer. It is prohibited without the consent of consumer, the utilisation of techniques of communication about the proposal of contracting the agreement, as is the telephone, automatic call, fax, electronic post or other electronic means of communication ". The above regulation consists of a specialisation of the principle of protection of personality and of the article 57 of the Civil Code. Consequently, in case of infringement of the above prohibition, the consumer has the right, according to art.57 of CC, to require the lifting of offence and omission, in the future, while it is not excluded to demand compensation about provisions provided of course that these conditions are in effect .