Friday, 9 December 2016

Camera, Camera, on the Wall...

The latest issues of INsights #18 contains a short article by Joasia Luzak 'Camera, Camera, on the Wall...' which introduces to the general public a previous joint publication by P. Lewinski, J. Trzaskowski and J. Luzak 'Face and Emotion Recognition on Commercial Property under EU Data Protection Law' published in Psychology & Marketing, vol. 33, issue 9, pp. 729-746. If you are interested in issues of privacy and how new technologies may challenge it, it's worth it to give it a read.

Thursday, 8 December 2016

Rescheduling credit NOT free of charge if payment for credit recovery agency added - CJEU in VfK (C-127/15)

In July we've mentioned an opinion of AG Sharpston in Verein für Konsumenteninformation case (C-127/15), which concerned debt collection agencies and a possibility of them being recognised as credit intermediaries (Debt collection agencies as ... - in this post we present the facts of the case in details). Today the CJEU issued a judgment in this case.

The CJEU shared AG Sharpston's opinion that the credit rescheduling agreement concluded between consumers and Inko, acting as a credit collection agency on behalf of the lender, could not be recognised as a 'free of charge' agreement, if it obliged consumers to repay the total amount of the credit and to pay interests and costs that were not agreed on in the initial contract. The concept of a 'credit agreement' is broad and covers also agreements on rescheduling of repayments of existing debts (para 30), incl. when these are concluded by credit intermediaries acting on behalf of the lender (para 32). Since in the given case, consumers would be obliged to pay first Inko's costs, and then remaining capital due and interest, they had a new obligation placed on them, which was not agreed in the initial contract - to pay the costs of a credit recovery agency (para 38-39). Therefore, the credit rescheduling agreement could not be seen as concluded free of charge.

While the CJEU further agrees that debt collection agency, such as Inko, should be perceived as a 'credit intermediary' (under Art. 3(f) of the Consumer Credit Directive), it doesn't, however, share the view of AG Sharpston that this would place any pre-contractual information obligations on the agency. While credit intermediaries have a duty to inform, this obligation does not stretch to 'credit intermediaries in an ancillary capacity' pursuant to Art. 7 of the Consumer Credit Directive, and this category encompasses such persons who are not credit intermediaries as their main purpose of trade, business or profession (para 47). If the referring court then determines that Inko only acted as a credit intermediary in an ancillary capacity, they would not be found negligent in not providing pre-contractual information to consumers. However, in this case the lender would need to ensure that such information reaches consumers (para 52).

The last part of the judgment is somewhat disappointing, considering that when debt collection agencies contact consumers they won't have an obligation to provide pre-contractual credit information, as long as they would maintain debt collection as only part of their trade. Banks (lenders) might not always be immediately aware that such a contact has occurred, which might hinder their performance of duty to inform.

Monday, 21 November 2016

Addressing financial innovation: the launch of a New Task Force on Financial Technology

Last week the Commission has launched a Task Force on Financial Technology focusing on the FinTech sector (see the press release here). FinTeach refers to new applications, processes, products or business models in the financial services industry such as peer-to-peer lending and crowdfunding. The new Task Force brings together the expertise of the Commission staff in several areas including competition and consumer protection, financial and digital services and digital innovation and security. It will assess the state of the sector in the EU and develop strategies for addressing the potential challenges that this sector poses, in line with the Commission's goal to develop a comprehensive strategy on FinTech. The work of this Task Force is potentially very important for protecting consumers of financial services, given that FinTech challenges the 'traditional' consumer protection rules, including for example the definitions of a consumer and a creditor. The task force will engage with stakeholders and present policy recommendations in the first half of 2017. We will be anxiously waiting for this report.

Thursday, 17 November 2016

AG Szpunar: after-sales helplines should be available at the cost of standard calls

Case C-568/15 Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main is a sign that one of the most recent EU legal acts in the field of consumer protection - the Consumer Rights Directive 2011/83/EU (CRD) - is gradually making its way before the Court of Justice. The opinion of Advocate-General Szpunar, delivered on 10 November, has just been published in multiple language versions. Full text of the opinion can be found here

The case concerns the concept of ‘basic rate’ contained in the Consumer Rights Directive. Article 21 CRD obliges Member States to ensure that “where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate”. The directive leaves it open, however, which of the following factors is decisive for the application of Article 21: 
  • the charges, which consumers incur when contacting the trader by telephone, i.e. charges should not exceed a certain threshold, in particular the costs of a standard call at normal market prices, or 
  • the profit, which the provision of non-geographic telephone lines generates, i.e. traders should not make profit through the telephone helpline and the overall cost of such calls is irrelevant.
Note that Article 21 only refers to the provision of after-sales telephone lines. A distinction should therefore be made between communication means used for the conclusion of the contract, where the trader is only required to inform the consumer about the costs higher than the basic rate – Article 6(1)(f), and telephone lines used after the contract is concluded, which are of direct relevance to the case at hand. 

Facts of the case 

The defendant, a German company, provided consumers with an after-sales-service telephone line available at a special (non-geographic) number containing the prefix 0180, which is used in Germany for support-oriented services at a single national rate. This rate, however, exceeded the normal market charges for standard calls, i.e. the costs which consumers typically incur, according to their contracts with telecommunications service providers, when they call a standard (geographic) fixed or mobile number. Zentrale zur Bekämpfung unlauteren Wettbewerbs, a consumer association, questioned the legality of this practice and brought an action for an injunction before the German court. The defendant maintained that the German legislation does not prohibit traders from providing helplines at a cost exceeding the cost of standard calls, provided that it is the telecommunications service provider and not the trader who profits from this practice. Literally speaking, such an interpretation was supported by the wording of Paragraph 312a of the Bürgerliches Gesetzbuch (German Civil Code, BGB), according to which consumers should not pay for anything else than for the mere use of the telecommunications service. BGB does not specify the type of the telecommunications service, though. Following this interpretation, the fact that consumers calling an after-sales telephone line have to pay more to telecom operators, has no bearing on the assessment of the trader's practice. 

AG’s opinion 

AG Szpunar did not share the argument of the defentant and proposed a pro-consumer interpretation of Article 21 CRD. According to the Advocate-General, consumers calling the after-sales telephone line of the trader must not incur charges higher than the normal costs which they would incur for calling a standard (geographic) fixed or mobile number. Who ultimately receives the remuneration payable by the consumer is legally irrelevant. But how did the AG arrive at this conclusion?

Having established that the literal and comparative interpretation of the term ‘basic rate’ does not provide necessary clarification, the Advocate-General turned to the schematic, teleological and historical reasoning. 

Schematic interpretation: Article 6(1)(f) and Article 21 

An essential part of the Advocate-General's analysis referred to the general scheme, purpose and regulatory context of the directive, and in particular the relationship between Article 6(1)(f) and Article 21 CRD. AG Szpunar noted that pursuant to Article 6(1)(f), interpreted a contrario, the trader is not required to inform consumer about the costs of the means of direct communication unless they exceed the basic rate. He further agreed with the observation of the European Commission that if the charges incurred by consumers were irrelevant to the interpretation of the concept ‘basic rate’, consumers would also be unable to estimate the costs arising from the use of the telecommunications service at a pre-contractual stage. Such an interpretation of Article 6(1)(f) would clearly undermine the rationale of this provision. In the context of Article 6(1)(f) the term 'basic rate' should therefore be understood as the costs of a normal standard (geographic) fixed or mobile telephone call. According to the AG, for reasons of systemic coherence as well as further arguments stated below, the same should apply to the interpretation of Article 21. 

Teleological interpretation: full harmonisation and a high level of consumer protection 

Having pointed to the full harmonisation approach adopted the CRD, along with its aim to achieve a high level of consumer protection, AG Szpunar turned his attention to the teleological analysis of Article 21. He noted that the existance of special telephone lines, with call rates higher than normal market rates, may prompt consumers to avoid telephone contact with the trader for fear of incurring excessive costs. This, in turn, could discourage consumers not only from discussing the details of their purchase, but also from asserting their contractual rights or seeking legal remedies. Article 21 CRD would thus lose its effectiveness if the protection of the consumer from premium call rates depended on whether or not the trader receives part of the charges paid. 

Legislative history 

Advocate-General also paid some attention to the historical evolution of the interpreted provision. He referred to the amendments proposed by the European Parliament and, assertedly, accepted by co-legislators as well as to the DG Justice Guidance Document. Based on this analysis, the AG concluded that the aim of EU legislature was to protect consumers from additional or excessive communication costs. An interpretation to the effect that the concept of ‘basic rate’ covers all costs of the telecommunications service, irrespective of the amount of these costs, would contradict these objectives. 

Final remark 

Attention of the reader should finally be drawn to the following statement in the AG's opinion: "it is clear from the general scheme of the directive that there is an irrebuttable presumption that the telephone assistance service is included in the parties’ expectations and therefore in the price already paid by the consumer. The use of a premium rate number would amount to making the consumer pay additional costs for the same service" (para 37). This argument appears rather tenuous. Reference to the price already paid by the consumer implies the internalisation of costs by the trader and could, in fact, support the contested German interpretation, according to which the (lack of) profit made by trader remains of relevance to the assessment. Overall, however, the pro-consumer interpretation of Article 21 CRD presented by Advocate-General Szpunar is well justified on other grounds and as such should be welcomed. 

Tuesday, 15 November 2016

Complex pricing in TV and other adverts - CJEU in Canal Digital Danmark (C-611/14)

Clearing up our backlog, on 26 October 2016 the CJEU issued a judgement on the interpretation of Art. 6 and 7 of the Unfair Commercial Practices Directive in the case Canal Digital Danmark (C-611/14).

Canal Digital provides television services to consumers in Denmark, offering them various TV packages. In many of its advertisements in 2009 promoting various TV subscriptions it could have confused consumers as to the real price for its services, considering that it separately showed the monthly price (made more visible by e.g. the use of a bigger font) and the additional six-month 'card service' charge and the full commitment period price (for one year). The last two prices were showed in smaller font, often in white against a light background, at the bottom of the advert, with consumer attention likely being drawn to the monthly price.

Misleading omission and disclosure medium 
The CJEU refers to the requirements of Art. 7(1) and (3) of the UCPD to determine whether a particular information should have been provided to consumers in order not to mislead them. It is, therefore, necessary to consider what method of communication has been used to convey information to consumers, as it could have placed limitations of time and space.  If this is the case, it is necessary to consider whether and what other means trader has used to convey material information to consumers. (par. 35) Art. 7(4) UCPD contains an exhaustive list of material information that has to be provided to consumers when inviting them to purchase, but even if all this information is provided, this does not exclude that this invitation to purchase would be considered as a misleading commercial practices either under art. 6(1) or art. 7(2) UCPD. (par. 71) It seems that the Court suggests that e.g. despite the price being a material information that needs to be provided, it could still be given to consumers in a misleading way if e.g. an important element of this price would not be mentioned or would be confusingly or in an unclear way mentioned, as in this particular case.
In case of TV adverts, consumers  cannot demand the same level of detail as with some other advertisements, and are also given a limited time to assess this information. (par. 60) If not all material information could be provided, commercial information could mention only some of it and the rest could be placed on the website. It is for the national court to ascertain what measures has the trader taken to provide material information to consumers, but it could be considered a misleading omission if the trader splits the price into two elements and only makes one of them visible in marketing materials, if this causes consumers to take transactional decisions, they would not have otherwise taken (par. 64).

Misleading pricing
Could it be consider misleading if the trader chooses a pricing strategy for a subscription that splits the charge into a monthly and six-monthly components, with only the monthly charge being highlighted in marketing, and the six-monthly charge either omitted or inconspicuously presented? Yes, as this would be likely to give average consumers false impression of a favourable price, contributing to consumers taking transactional decisions they otherwise would not have taken, which is for the national court to ascertain (but the CJEU suggests a positive answer to this test referring to the price as a determining factor in the mind of an average consumer - par. 46; esp. if the omitted price component was a significant part of the price - par. 47). The CJEU mentions that offers of TV service providers are often highly structured, both in terms of cost and content - "resulting in a significant asymmetry of information that is likely to confuse consumers." (par.41) Interestingly, for the test of misleading action, contrary to misleading omission, there is no exception made in the UCPD based on the advertisement being made through a limited as to time or space communication medium (par. 42).

If it talks like a seller... - CJEU in Wathelet (C-149/15)

Last week the CJEU also issued a judgement in the Wathelet case (C-149/15) concerning interpretation of the Consumer Sales Directive (CSD) with regard to a sale of a second-hand vehicle in Belgium.

Ms Wathelet has purchased a second-hand vehicle for 4.000 Euro as a consumer from a professional garage and did not obtain any receipt, proof of payment or a sales invoice for this purchase. The garage paid for the roadworthiness test, while Ms Wathelet paid for the registration of the vehicle. The car has promptly broke down, before the consumer received the invoice for the purchase. The garage found that the fault was with the engine and charged Ms Wathelet for 2.000 Euro for its repair. She has refused to pay this repair price, claiming that the garage as the seller of the vehicle was responsible for this fault. At this point, Ms Wathelet was informed that the garage has never owned the car and has sold it on behalf of Ms Donckels, another consumer. Ms Donckels has, however, never received the full purchase price, as the garage withheld 800 Euro to credit repairs that have been conducted on the vehicle. The garage sent then a letter to Ms Wathelet, confirming its capacity as an intermediary, stating that the engine failure is an 'ordinary risk' when buying a second-hand car from another consumer, and attached an invoice for the purchase price of 4.000 Euro on which it was handwritten that Ms Donckels was the seller. The invoice only had the signature of Ms Donckels. The garage refused to return the car until the repair price of 2.000 Euro is paid in full and brought proceedings against Ms Wathelet for payment of this invoice. Ms Wathelet counter-claimed demanding termination of the contract of sale and damages.


The Court of Appeal in Liege, Belgium, finds that there is strong evidence that Ms Wathelet was never informed that it was a private sale and, therefore, asks the CJEU whether the notion of a 'seller' encompasses not only professional traders who transfer ownership of consumer goods to consumers, but also traders acting as intermediaries for private parties, and whether the answer would differ depending on whether they are remunerated for their services and whether the consumer was informed of the fact that the sale was a C2C sale.

The CJEU first determines that the notion of the seller should be interpreted autonomously for the purposes of the Consumer Sales Directive, considering its objectives. The notion does not cover intermediaries (par. 33), however, that does not mean that it could not cover traders who act as intermediaries (regardless of whether they are remunerated for their services - see par. 43) but present themselves as professional sellers to consumers, giving consumers false impression that they are concluding a B2C contract (par. 34). The CJEU states that literal interpretation of art. 1(2)(c) of CSD does not prevent such an interpretation, teleological arguments - supporting high level of consumer protection - strengthen it (par. 35-36). It is essential for consumers to know the identity of the seller, and whether it is a professional party, as they will only have remedies for non-conformity of the purchased goods from a professional seller under CSD (par. 37). The consumer should have, therefore, been informed that the owner was a private individual, eliminating information imbalance between the parties. (par. 39-40)

"Therefore, in circumstances such as those at issue in the main proceedings, in which the consumer can easily be misled in the light of the conditions in which the sale is carried out, it is necessary to afford the latter enhanced protection. Therefore, the seller’s liability, in accordance with Directive 1999/44, must be capable of being imposed on an intermediary who, by addressing the consumer, creates a likelihood of confusion in the mind of the latter, leading him to believe in its capacity as owner of the goods sold." (par. 41)

"...The degree of participation and the amount of effort employed by the intermediary in the sale, the circumstances in which the goods were presented to the consumer and the latter’s behaviour may, in particular, be relevant in that regard in order to determine whether the consumer could have understood that the intermediary was acting on behalf of a private individual." (par. 44)

Monday, 14 November 2016

ECJ in Home Credit Slovakia (C-42/15): MS can impose written form for the conclusion of credit contracts

Last week, the Court of Justice issued its decision in Home Credit Slovakia, C-42/15. We have already covered the AG's opinion on this case, which was largely followed by the Court. For this reason, the comment here is limited to the two most complex questions discussed and decided by the Court.

Background: the Consumer Credit Directive (art 10.1) provides that “credit agreements shall be drawn up on paper or other durable medium”.  It then makes a list of 22 elements of information which should be included in said agreements.
Slovakian law requires credit contracts to be concluded “in writing”, which means that offer and acceptance have to be signed. This contract to be concluded in writing has to include all the elements mentioned by the consumer credit directive.
The facts of the case are largely unremarkable, except for the fact that  we know a few of the elements which the Directive and Slovakian law require to be included in the contract were not specified in the document signed by the parties, but only in the lender’s terms and conditions .
The main questions before the court of justice were:
  •     whether the directive requires all the information to be contained in a single document, ot whether it allows part of that information to be provided in a different document, aka the provider’s standard terms of business;
  •            whether a requirement under national law that all the information be included in one document- or that if part of the information is contained in a separate, unsigned agreement, the contract cannot have full legal effect - is precluded by the directive.

The AG had discussed at length the Slovak translation of the Directive’s text, and had ended up  discussing separately the compatibility of national legislation possibly imposing as well as not imposing the requirement that the information be all included in a single document.
When discussing expressly the possibility that national legislation allows for the information to be split among different documents, the AG went on to explain (para 52 of her Opinion) what conditions would make this acceptable in line of the Directive’s requirements.
The Court does not discuss much whether allowing the information to be split among different documents is in line with the Directive, since “there is nothing in the Directive to indicate that the credit agreements referred to in that provision must be drawn up in a single document” (para 30).

The Advocate General found this potentially more problematic, and included the requirements in her conclusions- there is no trace of the same nuance in the Court’s decision. On the other hand, the Court is more explicit on the fact that the formal requirements for the conclusion of a credit contract are left for the Member States to determine (para 39 ff), and avoids entirely the “single document” issue- which allows them not to make any reference again to the relationship between the standard terms and the text of the agreement. While the Advocate General assumed that the “in writing” obligation and the single document would go hand in hand, the Court is suggesting a different interpretation- namely that national laws could be seen to require that both the main text and the standard terms should be signed by the consumer. 

Thursday, 20 October 2016

ECJ: dynamic IP addresses can be personal data- and yet websites may be able to store them without consent

Yesterday, the Court of Justice delivered its decision in Breyer v Bundesrepublik Deutschland (C-582/14, not yet available in English), a case concerning the lawfulness of the retention of dynamic IP addresses and other information by internet service providers. 

Mr Breyer contested the practice of the German federal government's websites, which keep a register of all IP addresses accessing information on their pages, together with a record of the pages visited and the time of each visit. The purpose of this information storage, according to the German government, is to prevent and/or readily prosecute cyberattacks. 

Two questions were raised before the Court of Justice: 1) whether, contrary to the assumptions of the Government when devising this practice, the information concerned constituted personal data under Directive 95/46; 2) if so, whether the German rules applicable to the retention of personal data by websites, which would make the Government's practice illegal, were compatible with the directive.

As to the first question, the Court of Justice answered that the collection of dynamic IP can be qualified as collection of personal data. The main issue to be discussed in this context was whether dynamic IP information, which is by definition not constantly associated to an individual user, can nevertheless be considered as capable of identifying that user. This is materially possible only through obtaining additional information from the internet service provider which has issued the IP number. 

Making reference to the directive's 26th recital, the Court reasoned that the answer to the question depends on the ability, for the website's owners, to obtain the "missing" information legally and without disproportionate expenditure. The ECJ considers that this possibility is clearly present in a case such as the one under scrutiny, especially in the event of a cyberattack. 

Therefore, the answer to the first question is that dynamic IP addresses are to be considered and treated as personal data by a provider which has the possibility to use them, in case of need, in order to identify the users associated to them. 

As to question 2), the Court had to consider the compatibility with Directive 95/46 of the German provision according to which- thus the interpretation prevailing in Germany- online service providers are only allowed to collect personal data for purposes related to their service provision- and charging of potentially ensuing fees. 

In particular, the Court considered whether a similarly interpreted restriction was compatible with article 7 letter f of the Directive, according to which providers can collect and preserve data in pursuit of their legitimate interests, provided they do not disproportionately impinge on the user's fundamental rights and liberties. The national legislation implementing the directive must leave some room for the balancing required by this provision. 

According to the Court, therefore, article 7 letter f of Directive 95/46 stands in the way of a national rule that generally disallows providers to store personal data with the purpose of securing the website's continued workability- which, inter alia, encompasses the prevention and prosecution of cyberattacks.

Thus, the answer of the second question is that the Directive does not allow national legislation to be interpreted in such a manner that would render the collection of personal data (ie dynamic IP addresses and access information) for the prevention of cyberattacks illegal.    

This decision is rather double-faced: on the one hand, it has a privacy-friendly attitude insomuch as it makes clear that all information can be personal data when the provider collecting it has the possibility to, at some point in time, use it to identify people who have accessed its webpages. On the other hand, though, it threatens to preempt national legislations giving a strict interpretation of the legitimate interests allowing data collection. It will be interesting to see which of the two faces will become more visible in the decision's aftermath. 

Wednesday, 19 October 2016

Comparing prices in hyper- and supermarkets - AG Saugmandsgaard Øe in Carrefour Hypermarchés (C-562/12)

AG Saugmandsgaard Øe has issued an opinion today in the case C-562/12 (Carrefour Hypermarchés) concerning an issue of a potential misleading and comparative advertising. Carrefour holding consists of many hyper- and supermarkets across France, with supermarkets generally being smaller in size than hypermarkets. One of its main competitors is Intermarché holding that also operates many hyper- and supermarkets. While Carrefour has 223 hypermarkets, Intermarché has 79. 

In December 2012 Carrefour run a new advertising campaign, both on TV and online, in which it compared prices of selected 500 leading brand products in its shops and competitors' shops under a slogan 'Lowest price guarantee'. The comparison was clearly favourable to Carrefour, who also promised to pay twice the price difference if consumers proved that the advertised prices were incorrect. Intermarché questioned the objectivity of this price comparison and its correctness, as well as a possibility of this advertisement misleading consumers, as it wasn't made clear to consumers that the comparison was between prices of consumer products in Carrefour's hypermarkets and Intermarché's supermarkets. Especially, since both Carrefour and Intermarché belong to retail outlets which each have shops of identical format and size, whose prices where then not directly compared with.

The CJEU was asked to answer such questions as (1) whether comparative advertisement referring to prices of consumer goods should be allowed only if the shops are of the same size and format; (2) if the compared shops differ in size and format whether consumers should be informed about this under the UCPD's obligation of Art. 7 to reveal material information to consumers; (3) if (2) is answered positively, how should this information be given to consumers.

The AG advises the Court to answer that indeed (1) comparative advertisement may only compare prices of goods sold in shops of similar formats and sizes but only IF:

"it is found, in the light of all the relevant circumstances of the case, and in particular in the light of the information in or omissions from the advertising at issue, that the transactional decision of a significant number of consumers to whom that advertising is addressed is likely to be made in the mistaken belief that all the shops in those retail chains have been taken into account in calculating the general price level and the amount of savings which are claimed by the advertising and that, accordingly, those consumers will make savings of the kind claimed by the advertising by regularly buying their everyday consumer goods from shops in the advertiser’s retail chain rather than from shops in the competitor’s retail chain"

or 

"the selection of the shops for the comparison has the effect of artificially creating or increasing any difference between the prices charged by the advertiser and by the competitor."

Thus, the national court has to consider the effect of a given advertisement on both consumers and fair competition to assess whether in a given case the comparative advertisement showed by Carrefour has infringed requirements of the Directive 2006/114/EC. If it is not misleading and it is done in an objective way, it should be allowed. 

"In my view, there is in principle no reason to consider that an advertiser’s economic freedom does not also extend to the possibility of comparing prices in shops having different formats and sizes. In so far as an advertiser is capable of benefiting from economies of scale, as a result of the size, format or number of shops available to him, and, consequently, of charging prices lower than those of his competitors, he should be able to derive the benefits therefrom for marketing purposes." (Par. 30)

The discretion of the advertiser in designing his marketing strategies is not unlimited, however, and should consider the need to provide objective comparisons and not to mislead consumers.

The AG expresses also an interesting view on the capabilities of average consumers: "I consider that the average consumer is fully capable of deciding whether a price difference justifies, in his view, purchasing a product in one or other of the shops, when those shops have different formats or sizes, which may also entail differences in terms of the geographical proximity of the shops." (Par. 31) However, in the particular case: "I consider that an asymmetric comparison of that kind might deceive an average consumer as to the actual difference in the prices charged in the advertiser’s shops and in the competitor’s shops, by giving that consumer the impression that all the shops in the retail chains were taken into consideration in calculating the price information presented in the advertising, although that information applies only to certain types of shops in those retail chains." (Par. 42)

Only the second requirement - whether the comparison might artificially create or increase difference in charged prices on the market - should, however, be considered by the national court when assessing (2) whether consumers should have been informed about divergence in size and format of shops compared in this advertising. In general, the AG does not see the information on size and format of shops as always being material to consumers, but in certain circumstances it may become material information. (Par. 68-69)

If the information on the difference between compared shops should have been given to consumers, this would need to occur in the advertisement itself (3), pursuant to the AG. Only such dissemination would assure that the information is provided in a clear, intelligible, unambiguous and timely manner, esp. since choosing to compare prices of goods sold in shops with different sizes/ formats was a voluntary choice of the advertiser. (Par. 78)


Wednesday, 12 October 2016

Putting an end to silos enforcement of consumer (data protection) rights?

Last month, BEUC and the European Data Protection Supervisor (EDPS) held a joint conference on the enforcement of fundamental rights- notably, the right to privacy- in the age of big data. 

BEUC urges all competent authorities to coordinate their actions and strategies in this field, putting an end to "silos" enforcement, which is unable to guarantee equal respect of consumer rights across policy areas. 

BEUC particularly welcomed the EDPS's recently published opinion on "coherent enforcement of fundamental rights in the age of big data", which contains a set of recommendations, Here an excerpt from the study summary:

"The EU institutions and bodies, and national authorities when implementing EU law, are required to uphold the rights and freedoms set out in the Charter of Fundamental Rights of the EU. Several of these provisions, including the rights to privacy and to the protection of personal data, freedom of expression and non-discrimination, are threatened by normative behaviour and standards that now prevail in cyberspace. The EU already has sufficient tools available for addressing market distortions that act against the interests of the individual and society in general. A number of practices in digital markets may infringe two or more applicable legal frameworks, each of which is underpinned by the notion of ‘fairness’. Like several studies in recent months, we are calling for more dialogue, lesson-learning and even collaboration between regulators of conduct in the digital environment. We also stress the need for the EU to create conditions online, as well as offline, in which the rights and freedoms of the Charter may thrive.

This Opinion therefore recommends establishing a Digital Clearing House for enforcement in the EU digital sector, a voluntary network of regulatory bodies to share information, voluntarily and within the bounds of their respective competences, about possible abuses in the digital ecosystem and the most effective way of tackling them. This should be supplemented by guidance on how regulators could coherently apply rules protecting the individual. We also recommend that the EU institutions with external experts explore the creation of a common area, a space on the web where, in line with the Charter, individuals are able to interact without being tracked. Finally, we recommend updating the rules on how authorities apply merger controls better to protect online privacy, personal information and freedom of expression."
According to the opinion, the Digital Single Market strategy represents a good opportunity for taking a more coherent approach. We will see whether the different actors involved will be willing to seize the chance!