Abstract
As part of its ‘New Deal for Consumers’, the European Commission brought forward, on 11 April 2018, a legislative package comprising of two proposals for directives encompassing substantial reforms in the area of consumer law. The first is a proposal for a directive on better enforcement and modernisation of European Union consumer protection rules. What is really interesting to note is that although this proposal forms part of the “New Deal”, it is not bringing forward purely new legislation but instead amendments to already established EU consumer protection rules that, according to the Commission, are essential for adjusting these legislative documents to the development of the digital sphere. After providing some background information, this chapter proceeds to an analysis of the four fundamental changes brought forward by the Proposal aiming to shed light on the question of whether it improves or not the substance of EU consumer protection legislation. These changes are consumer access to individual remedies for unfair commercial practices, simplifications for businesses, transparency requirements for online marketplaces and the addition of ‘free’ digital services to the scope of the Consumer Rights Directive. This chapter concludes its analysis by answering the question of whether this Proposal forms, after all, a good or a bad digital deal.
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- 1.
Proposal for a Directive of the European Parliament and of the Council as regards better enforcement and modernisation of EU consumer protection rules COM (2018) 185 final.
- 2.
What shall be noted is that although, in the context of the ordinary legislative procedure, in January 2019 the European Parliament Internal Market and Consumer Protection (IMCO) Committee adopted its report on the Proposal, this chapter and the analysis found herein is focussed solely on the Commission Proposal of April 2018 as it appeared up to March 2019.
- 3.
Proposal for a Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC COM (2018) 184 final.
- 4.
European Commission (2017), Commission Staff Working Document, Report of the Fitness Check on Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’); Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers; Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees; Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests; Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising, SWD (2017) 209 final.
- 5.
Report from the Commission to the European Parliament and Council on the application of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights COM (2017) 259 final.
- 6.
Ibid, pp. 2–3.
- 7.
Directive 2005/29/EC of the European Parliament and Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, OJ L 149/22.
- 8.
Directive 2011/83/EU of the European Parliament and Council of 25 October 2011 on consumer rights, OJ L 304/64.
- 9.
Council Directive 93/13/EC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95/29.
- 10.
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers, OJ L 80/27.
- 11.
Šajn (2018), p. 2.
- 12.
COM (2018) 185 final, p. 1.
- 13.
SWD (2017) 209 final, p. 76.
- 14.
Another question could be whether the proposed amendments respond fully to the findings of the two evaluation reports.
- 15.
The changes discussed affect either solely online consumer contracts or both online and offline consumer contracts.
- 16.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Regulatory Fitness and Performance (REFIT): Results and Next Steps, COM(2013) 685 final.
- 17.
- 18.
Directive 1999/44/EC of the European Parliament and Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees OJ L 171/12.
- 19.
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising, OJ L 376/21.
- 20.
Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests OJ L 110/30.
- 21.
Supra n 4, n 5.
- 22.
Commission Staff Working Document Executive Summary of the Fitness Check on Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’); Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers; Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees; Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests; Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. {SWD (2017) 209 final}, SWD(2017) 208 final, p. 4.
- 23.
Commission Staff Working Document Executive Summary of the Evaluation accompanying the document Report from the Commission to the European Parliament and the Council on the application of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council {COM(2017) 259 final} {SWD(2017) 169 final}, SWD (2017) 170 final.
- 24.
Twigg Flesner (2018), p. 3.
- 25.
- 26.
Ibid.
- 27.
Mak and Lujinovic (2019), p. 5.
- 28.
COM(2018) 185 final, p. 13.
- 29.
European Commission (2017) State of the Union 2017 by Jean-Claude Juncker, President of the European Commission 13 September 2017 https://ec.europa.eu/commission/sites/beta-political/files/state-union-2017-brochure_en.pdf.
- 30.
Apart from the four main changes that will form the focus of analysis in this chapter, the Proposal brings forward a new provision on penalties for widespread cross border infringements (to be inserted in all four directives covered by the Proposal). Furthermore, in relation to the UCPD solely it introduces, firstly, an amendment to Article 6(2) regarding misleading practices, making it explicit that a commercial practice involving the marketing of a product as being identical to the same product marketed in several other Member States, where those products have significantly different composition or characteristics causing or likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, is a misleading commercial practice and secondly an amendment to Articles 3(5) and (6) clarifying that Member States are not prevented from adopting rules on certain forms and aspects of off-premises sales.
- 31.
European Commission (2018) Commission Staff Working Document Impact Assessment accompanying the document proposals for Directives of the European Parliament and of the Council (1) amending Council Directive 93/13/EEC, Directive 98/6/EC of the European Parliament and of the Council, Directive 2005/29/EC of the European Parliament and of the Council and Directive 2011/83/EU of the European Parliament and of the Council as regards better enforcement and modernisation of the EU consumer protection rules and (2) on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC {COM(2018) 184 final}—{SWD(2018) 98 final}, SWD(2018) 96 final, Part 2/3, p. 55.
- 32.
According to the REFIT evaluation check, “under the national law of all Member States, it appears to be possible to rely on general contract law for remedies which consumers may invoke in courts. However…there is little national case-law providing a clear link between the remedies derived from the general contract law doctrines in national law and the unfair commercial practices as established in the UCPD. In addition, none of the Member States provide for the automatic triggering of contractual remedies…[furthermore] in six Member States [Bulgaria, France, Luxembourg, the Netherlands, Portugal and Slovakia] the existence of contractual remedies is made more explicit…[while] three Member States — Belgium, Poland and the UK — provide for special remedies specifically for breaches of the UCPD, which generally differ from the contractual remedies provided for other breaches of consumer law” SWD(2017) 209 final, p. 93.
- 33.
Twigg Flesner (2018), p. 7.
- 34.
These being either obliging in general Member States to introduce effective individual remedies for breaches of the UCPD or providing a harmonised set of remedies within the UCPD.
- 35.
For example in the UK, although the general rule according to the Addis v Grammophone, [1909] AC 488, case the claimant cannot recover damages for injured feelings in a contractual action, according to Farley v Skinner, [2002] 2 A.C. 732, “it is sufficient if a major or important object of the contract is to give pleasure, relaxation or peace of mind” In Greek law, under Article 299 of the Greek Civil Code (GCC) “compensation for immaterial damages cannot be awarded unless a legal provision explicitly permits such type of damages”. This is permitted in only two cases; firstly, in a tort/delict action according to Article 932 of the GCC, and secondly, if there is a violation of personality rights under Article 59 of the GCC.
- 36.
Loos (2019), p. 117.
- 37.
Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content, COM (2015) 634 final.
- 38.
Durovic and Micklitz (2017), pp. 47–48.
- 39.
European Commission (2017) Study on the application of the Consumer Rights Directive 2011/83/EU, p. 160. ec.europa.eu/newsroom/document.cfm?doc_id=44637.
- 40.
European Commission (2017) Commission Staff Working Document, Evaluation of the Consumer Rights Directive SWD(2017) 169 final, p. 58.
- 41.
Emphasis added.
- 42.
COM(2018) 185 final, p. 15.
- 43.
Emphasis added.
- 44.
Rott (2010), p. 190.
- 45.
COM(2018) 185 final, p. 3.
- 46.
Loos (2019), p. 119.
- 47.
ECJ, Pia Messner v Firma Stefan Krüger, Case C-489/07, Advocate General Trstenjak opinion of 18 February 2009, par. 85.
- 48.
Von Bar et al. (2008), see specifically Article II.-5:105(4).
- 49.
Loos (2019), p. 119.
- 50.
Supra n 47, par. 90.
- 51.
See, for example, CJEU, E. Friz GmbH v Carsten von der Heyden, Case C-215/08, Judgment of 15 April 2010, para 32: “In this connection, it should first be observed that it is settled case-law that derogations from the rules of European Union law for the protection of consumers must be interpreted strictly (see, inter alia, Case C-481/99 Heininger [2001] ECR I-9945, paragraph 31)”.
- 52.
European Commission (2014), DG Justice Guidance Document concerning Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, https://ec.europa.eu/info/sites/info/files/crd_guidance_en_0.pdf.
- 53.
Watson (2016), p. 244.
- 54.
SWD(2018) 96 final, Part 1/3, p. 75.
- 55.
The Federation of German Consumer Organisations in its report (Federation of German Consumer Organisations 2018, p. 10) brought forward interesting ways of preventing the abuse of right of withdrawal. More specifically, ”one possibility, for example, might be for clothing retailers to put technical safeguards in place that allow the goods to be tried on, but only worn if clearly visible labels or similar are removed first. The removal of such a protective device would invalidate the right to withdrawal. Similar measures could be used for technical devices such as televisions, which would initially be supplied in a restricted test mode. Active steps would be required to activate the full functionality of the device, and the user would be warmed that by taking these steps, they would lose their right of withdrawal”.
- 56.
Emphasis added.
- 57.
Ibid.
- 58.
Ibid.
- 59.
According to this point “‘online interface’ means any software, including a website or a part thereof and applications, including mobile applications, operated by or on behalf of a trader, which serves to give customers access to the trader’s goods or services with a view to engaging in a transaction with respect to those goods or services”.
- 60.
CRD, Article 8(3).
- 61.
BEUC (2018), p. 4.
- 62.
Twigg Flesner (2018), p. 11.
- 63.
Hotrec (2018), Hotrec in its position paper gives various examples of multiple listings with one “host”. In page 2 of the Position Paper, it stated that “see for instance tourism accommodation services offered through collaborative economy platforms, where multiple listings by traders are common. E.g. on AirBnB, in Amsterdam, 20% of all listings are multiple listings, with 1 ‘host’ (in reality a trader) having more than 100 apartments. In Athens and Brussels, respectively 42% and 36% of listings are multiple listings”.
- 64.
Federation of German Consumer Organisations (2018), p. 18.
- 65.
CJEU, Sabrina Wathelet v Garage Bietheres & Fils SPRL, Case C-149/15, Judgment of 9 November 2016.
- 66.
CRD, Preamble: paragraphs 13 and 18.
- 67.
- 68.
For a discussion of these definitions as they appeared in the 2015 pDCD see Giliker (2017), pp. 106–109.
- 69.
In Recital 12 of the DCD it is mentioned that “this Directive should also apply to digital content which is supplied on a tangible medium, such as DVDs, CDs, USB sticks and memory cards, as well as to the tangible medium itself, provided that the tangible medium functions only as a carrier of the digital content. However, instead of the provisions of this Directive on the supplier’s obligation to supply as well as on the consumer’s remedies for failure to supply, the provisions of Directive 2011/83/EU of the European Parliament and of the Council on obligations related to the delivery of goods and remedies in the event of the failure to deliver should apply. In addition, the provisions of Directive 2011/83/EU, for example on the right of withdrawal and the nature of the contract under which those goods are supplied, should also continue to apply to such tangible media and the digital content supplied on it. This Directive is also without prejudice to the distribution right applicable to these goods under copyright law”.
- 70.
Prastitou Merdi (2017), pp. 140–141.
- 71.
See for example: European Data Protection Supervisor (2018).
- 72.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR), OJ L 119/1.
- 73.
One cannot remain silent on the fact that many recommendations of both the REFIT and CRD evaluations have not been followed. See Loos (2019).
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Prastitou Merdi, T. (2020). The 2018 New Deal on Better Enforcement and Modernisation of EU Consumer Law: An Actually Good Digital Deal?. In: Synodinou, TE., Jougleux, P., Markou, C., Prastitou, T. (eds) EU Internet Law in the Digital Era. Springer, Cham. https://doi.org/10.1007/978-3-030-25579-4_16
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