Distance contracting is one of the few areas of this field that is genuinely harmonised, through Directive 2011/83/EU. That should make it simpler, and in practice it does not, because the harmonised rules are frequently applied only to online sales and not to the telephone — which is where they bite hardest.
The rule that most operations get wrong is about the moment of binding. Where the trader initiates the call, several Member States require the consumer to sign the offer or send written consent before being bound. Portugal is among them: article 5(8) of Decree-Law 24/2014 says so expressly, with the sole exception of calls initiated by the consumer.
Four obligations in a remote sale
Identify at the outset
The identity of the trader, or of whoever acts in its name, and the commercial purpose of the call must be stated explicitly at the start of any contact with the consumer.
Pre-contractual information
The full set of pre-contractual information must be provided before the consumer is bound, in a manner appropriate to the means of communication used.
Binding only on written confirmation
Where the trader initiated the call, the consumer is bound only after signing the offer or sending written consent. This is a national option under the Directive; verify it market by market.
Confirmation on a durable medium
A separate and cumulative duty: confirm the conclusion of the contract on a durable medium within a fixed period — five days in Portugal — and at the latest on delivery or before performance begins.
The requirement of written consent before binding and the requirement of confirmation on a durable medium are distinct obligations with distinct legal bases. Sending a confirmation email does not satisfy the first, because confirmation is something the trader sends and consent is something the consumer gives. An operation that sends confirmations and takes no written consent has satisfied one duty and not the other — and has a portfolio of contracts that do not bind.
What this site addresses
Each has a concrete answer on the solutions page.
No written consent taken
The sale is treated as concluded at the end of the call, with a confirmation email sent afterwards. Where the trader initiated the call, and the national regime requires written consent, the contracts concluded this way do not bind the consumer.
View solutionSales circuit reviewed, contact basis not
The sales process is compliant and the calls that feed it rest on a lawful basis nobody has verified — so the contracts are valid and the contacts that produced them are not.
View solutionServices
Bounded products, with defined scope, method and deliverables.
Outbound and Direct Marketing Compliance
Lawful basis of each contact, opt-out registers, calling hours and scripts
SpecificationElectronic Marketing Communications Compliance
Lawful bases, proof of consent and the existing-customer exception in email and message campaigns
SpecificationCompliance File for Customer Service
Building the documentary file that can be produced to contracting authorities, client auditors and regulators
SpecificationWhere to go next
Framework
The subject matter, the applicable regime and what has changed in recent years.
ReadMarket
Who is covered, by category of undertaking, and with what priority.
ViewTraining
Training paths on the applicable regulatory framework.
View programmesFAQ
The questions that always come up, answered with a source.
ConsultDiscuss your case
A concrete question gets a concrete answer. Enquiries are routed directly and answered within three working days.