Sunday, 30 May 2010

One click could save your soul

Conducting an April Fool's Day joke a British game maker found out exactly how many of its customers read contract terms and conditions (full story here).

The following clause was added to the contract signed before making any online purchases:

By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from or one of its duly authorised minions (...) we reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction.

You had an option to opt out from this clause, by ticking a box, which actually would have rewarded you with a 5 British pound voucher. So how many people have seen that clause (read: how many have read the contract terms and conditions?)? About 12%. Your automatic reply would be: "12% only?", however, previous research has shown even more discouraging numbers. I guess we should rejoice that we care more about our rights to our eternal souls than about our consumer rights?

Paper: 'Does anyone read the fine print? Testing a Law and Economics Approach to Standard Form Contracts' may be found here.

Thursday, 27 May 2010

Financial literacy

A bit last minute but European Commission organizes a conference on 'Financial literacy: Dolceta' tomorrow, 28 May 2010, in Brussels.

For anyone who was not aware of that fact previously but still would like to benefit from these meetings - the conference will be web-streamed and presentations and videos will be uploaded at a later date.

I posted about the new website Dolceta a while ago on this blog. Dolceta is a website for online consumer education. The EC has recently published an additional section on Dolceta on financial literacy targeted at teachers.
The conference is supposed to explain various potential uses of that section of Dolceta's website as well as better explain financial literacy (as a lession to draw from the financial crisis) and its problems.

'The recent financial crisis revealed that consumers are increasingly obliged to make decisions in relation to a wide range of complex financial products and services. With a view to empower consumers, the European Commission is working on three complementary fields: pre-contractual information, advice and financial education.
Financial education is a crucial complementary principle in a way that empowers consumers to make informed choices and play their role in the integration of financial markets. Financial education should be introduced at an early age in order to to be efficient and effective.'

Programme of the conference and more information about it might be found here.

Tuesday, 25 May 2010

Teaching Consumer Law in the New Economy - follow up

A conference on Teaching Consumer Law in the New Economy organized by the Centre for Consumer Law of the University of Houston was again a success. It is a great opportunity to meet fellow practicioners and academics working in the same field, to exchange interesting ideas and to try to find problems to new issues in consumer law (or in teaching consumer law).

In the afternoon of the first day (Friday, 21 May) the first session concerned the collection of debts, litigation and settlements. Some time was devoted also to secured financing and payment systems. Another mixed session approached consumer behavior issues in law. Within this session I gave a short presentation on various functions of warnings and how they may influence the liability of a service provider (e.g. a builder in the construction sector).

On Saturday (22 May) the presentations and the discussion focused on arbitration and consumer credit issues. A session was devoted to teaching consumer law via clinical studies, which sounds like a great way to make students not only study textbooks but also gain some practical knowledge of consumer law. Maybe one day we will be able to introduce that sort of teaching into our courses.

Monday, 24 May 2010

Let's stick together

On 18 May the European Economic and Social Committee (EESC) published an Opinion on the ‘Green Paper on Consumer Collective Redress’. The EESC points out that the question of collective judicial redress (‘class action’) has been under discussion since 1985 and urges for decisions to be taken and schemes being implemented without further delay. It maintains that consumer redress is a fundamental right and that ‘[c]ollective redress mechanisms are necessary to give consumers a realistic and efficient possibility to obtain compensation in cases of damages of distinct, numerous and similar nature’. However, it takes care to emphasise that a European collective action should respect the limitations imposed by the Treaty and the national differences in procedural and constitutional law.

Taking into account these factors, the EESC is in favour of:

- an EU Directive to ensure a basic level of harmonisation and to leave at the same time sufficient leeway for those countries which to date do not have collective judicial redress systems in place (…);

- safeguards to make sure that collective actions do not take the form of the class actions employed in the USA (…);

- a combined system of group actions, which combine the advantages of the two systems of ‘opt in’ and ‘opt out’, depending on the nature of the interests at stake, the determination of the group members or the lack of it, and the extent of individual damage (…);

- granting individuals the right to opt-in to aggregate litigation proceedings rather than simply presuming them to be a party to it unless they opt out (…);

- the Commission’s statement that any EU mechanism ought to prevent unmeritorious claims and that the judge can play an important role in establishing whether a collective claim in unmeritorious or admissible (…);

- granting victims full compensation of the real value of the loss suffered (…);

- such a collective judicial mechanism [being] guaranteed sustainability in terms of adequate funding;

- the system (…) cater[ing] for a system of appeals.

Furthermore, the EESC recommends the Commission to take further action to encourage the development of alternative means of consumer redress (internal complaint handling systems, alternative dispute resolution), which consumers could use before they resort to the judicial system.

Friday, 21 May 2010

Teaching Consumer Law in the New Economy

I'm currently in Houston, Texas, for a conference on Teaching Consumer Law in the New Economy organized by the Centre for Consumer Law of the University of Houston.

All throughout the morning session on the first day of this conference the presentations and the discussion focused on the influence of the financial crisis on consumer legislation. The speakers mentioned consumer credit and bankruptcy laws of not only US but also UK, Australia and Vietnam. It's interesting to consider how to make these matters more approachable in order to convey these issues to law students (as well as to consumers).

Wednesday, 19 May 2010

Does having a website mean you operate worldwide? - opinion of AG in ECJ case C-585/08 Pammer and C-144/09 Hotel Alpenhof

18 May 2010: ECJ Advocate General's opinion in case C-585/08 Pammer and in case C-144/09 Hotel Alpenhof

The opinion of the AG in these two cases is fascinating, mostly because the AG goes beyond just answering the questions asked by the national courts and decides to tackle (for the first time) some problems with interpretation of the contracts concluded online.

Mr Pammer lives in Austria and decided to book a trip with a German company specializing in boat excursions. The Reederei Karl Schlüter had a website that was available to Mr Pammer also in Austria and via this website Mr Pammer booked a trip for two people from Triest to Fernost. Unfortunately, the description of the trip did not correspond to the reality (how often did we hear that?). The cabin on the boat was 1-person only instead of 2-people, there was no outdoor swimming pool, no fitness centre, no functioning TV, no possibility to lie nor sit on the deck. Mr Pammer decided to cancel his trip and demanded his money back.

Ms Heller lived in Germany and found a website of an Austrian Hotel Alpenhof fascinating. She decided to use this website to book a stay there for her and her friends for the period of a week including the New Year's Eve. Ms Heller arrived at the hotel at the reserved time, however, she then proceeded to leave without paying fully for her stay.

The main question that was raised by the national courts in these cases concerned the jurisdiction matters. In which country should the claim be brought: Germany or Austria? In this respect interpretation of the Article 15 Sec. 1c of the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was needed:

'In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, (...) if (...) the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.'

If a company has a website that can be accessed by consumers domiciled in another Member State of the European Union - is that enough to consider this company as 'pursuing commercial or professional activity in the MS of the consumer's domicile'?

The AG's opinion is clear: the sole fact that the website is accessible from another country does not mean that the company who owns it pursues commercial or professional activity in this country. It does not matter whether that website is active (enables the consumer to immediately conclude a contract) or passive. (Par. 74)

Therefore, it is for the national court to determine in a given case whether under all circumstances of the given case the company was pursuing commercial or professional activity in a MS of the consumer's domicile. The AG thought he should give certain guidelines to the national courts on this matter.

Firstly, the content of the website should be taken into account. (Par. 78) The factors that might point to the company pursuing a commercial or professional activity in another Member State are the following information that could be found on the website:
  • international prefix before the contact telephone or fax number
  • serviceline for consumer's from abroad
  • route description from other countries to the place of destination
  • possibility to subscribe to a newsletter for consumers from other countries
  • possibility to ask a question about e.g. 'in stock availability' for consumers from other countries
  • possiblity to conclude a contract online with fulling in the address of another country

What will not be seen as sufficient, is if the company just gives its e-mail address. Although, this means of communication can be used internationally, it is not seen as sufficient to indicate that the company intends to conduct business abroad. (Par. 79)

Furthermore, it can be decisive whether the company pursues commercial or professional activities in a MS of the consumer's domicile if it already conducted such activity with other consumers from that MS. It has to be decided on a case by case basis what number of such contracts concluded would be seen as sufficient. The AG mentions that if the company traditionally concludes contracts with consumers from a particular MS then there can be no doubt that this company pursues commercial or professional activity in this MS. However, if that company concluded one other contract with a consumer from a given MS - that might not be a sufficient proof thereof. (Par. 80)

In certain cases also the language of the website may be an indication that a company directs its activities to consumers from a certain Member State. Especially, if there is a choice of the language in which the website appears left to the consumer. (Par. 81-83)

A following factor might be the domain used by the company. If a company based in England uses a domain of Spain '.es' that might mean that this company pursues commercial or professional activity among Spanish consumers. (Par. 84-85)

Finally, the fact that the consumers from a given Member State receive e-mails with links to the website of a given company or find these links on other national websitees, might be an indication that this company pursues its commercial or professional activity in a given MS. Even if the company was unaware that such e-mails would be sent out, that falls within its commercial risk. (Par. 88) It should also take responsibility for advertisements appearing in other media than online, e.g. TV or radio. (Par. 89)

The AG thinks, however, that there should be a possibility given to the companies to announce clearly on their websites that they do not pursue commercial or professional activity in certain countries. Such limitation is acceptable if it does not infringe other EU rights and obligations. (Par. 99)

In the Pammer case there was another question asked: whether the boat trip could be seen as a package travel, i.e. a transport that provides for a combination of travel and accommodation - under Article 15 Sec. 3 of the Council Regulation No. 44/2001. All other transport contracts are namely excluded from the scope of application of this Regulation.

The AG had no doubts that this is indeed the case. (Par. 50) The boat trip as offerred in the given case combined travel - from Triest to Fernost - and provided accommodation for the time of the travel within the same joint price. (Par. 42) Furthermore, the main purpose of this boat trip was not just pure transportation, but rather providing the consumers with the possibility to sightsee on their way from one place to another. The company was responsible not only for the quality of the transportation but also for the quality of entertainment and accommodation. (Par. 43) AG thought that this boat trip would even fall under the description of the package travel in Article 2 Sec. 1 of the Package Travel Directive 90/314.

Tuesday, 18 May 2010

Installation at own risk - opinion of AG in ECJ case C-65/09 Gebr. Weber and C-87/09 Putz

18 May 2010: ECJ Advocate General's opinion in case C-65/09 Gebr. Weber and in case C-87/09 Putz

The AG considered two similar German cases today both concerning interpretation of the provision of Article 3 of the Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees.

Article 3 of the Directive establishes the system of liability of the seller for non-conformity of the goods he had delivered to the consumer. In accordance with that Article 3 the consumer may demand repair or replacement of the defective goods free of charge and without significant inconvenience, unless this is impossible or disproportionate. The consumer may demand price reduction or terminate the contract in case he is not entitled either to repair or to replacement.

Mr Wittmer bought polished Italian-manufactured floor tiles at a price of EUR 1.382,27 from Weber which he had laid in his house. Subsequently, shading appeared on the surface of the tiles, visible to the naked eye. The marks could not be removed, so that the only remedy possible was complete replacement of the tiles. The costs for this were estimated by the expert at EUR 5.830,57 (delivery of new, free of fault tiles, removal of old faulty tiles, installation of new tiles).

Ms Putz purchased a dishwasher from Medianess which the company had delivered to the door of her house. After Ms Putz had the dishwasher installed, a defect became apparent, which was not attributable to the installation but to the machine itself. Removal of the defect was not possible, so Ms Putz requested not only delivery of a dishwasher free from defects, but also disconnection of the defective machine in her kitchen and installation of the new one.

In both above-described cases the main question asked by the German courts to the ECJ was whether the consumer may require the seller to bear the costs of removing goods not in conformity, when the goods had been properly installed and connected by the consumer after the delivery.

The AG is of the opinion that this is not the case:

'the provisions of Article 3(2) and (3) of the Directive are to be interpreted as meaning that where a consumer product, such as the dishwasher at issue, which has been, in a manner consistent with its nature and purpose, installed and connected by the consumer, is brought into conformity by way of replacement, the seller is not required to bear the costs of disconnecting/removing the product not in conformity and of installing/connecting the product free from defects, if under the contract of sale concerned the seller was not obliged to install the purchased product' (Par. 68 in Putz and Par. 67 in Weber)

The AG mentions that the literal interpretation of the Article 3 of the Directive is not conclusive. Some language versions seem to suggest that the 'replacement' would cover also the removal of the defective goods, while other language versions refer only to 'replacement' as replacement-delivery. (Par. 44 in Weber, Par. 45 in Putz) However, on the basis of the contextual and systematic interpretation of the Directive the AG comes to a conclusion that the rights of the consumer to subsequent performance are limited by obligations contracted under a sale contract. (Par. 45-54 in Weber, Par. 46-55 in Putz) This means that:

'the rights afforded to consumers under Article 3 of the Directive are aimed at remedying the lack of conformity by comparison with what was originally owed to the consumer under the contract of sale, namely to bring the consumer into possession of goods free from defects' (Par. 54 in Weber, Par. 55 in Putz)

If the seller was to be held responsible for removal of the defective good, the seller's liability would then extend to circumstances which occurred after the passing of the risk to the consumer, which are therefore dependent on his will and the use the consumer makes of the goods concerned. (Par. 56 in Weber, Par. 57 in Putz)

'Whereas the range of possible ‘normal’ uses that can be made of highly specified and finished goods, like, for example, a computer or a table, may be quite defined and foreseeable, the simpler the goods, the greater the range of possible ‘normal’ uses. Thus, the closer the goods come to a building component or a raw material, the more numerous and undefined are the purposes for which they may be used, still in accordance with their nature. Accordingly, the costs of removing one and the same product may vary enormously.' (Par. 63 in Weber, Par. 64 in Putz)

The AG considers also the obligation of the seller to perform the remedy 'free of charge' and 'without significant inconvenience to the seller' as applying only to bringing the goods into conformity by replacement. (Par. 65 in Weber, Par. 66 in Putz)

In both cases AG's opinion leaves no doubts that the in case the seller was not obliged under a contract of sale to perform installation of the original defective good, he should not be charged with the installation of the new conform good nor with the cost of removal the old, defective one. He may rest assured that simple delivery of the new, conform good would be sufficient under the provisions of the Directive.

Does this, however, sufficiently protect the consumers? The Commission, and a few other governments, were here of the opinion that that is not the case. They argued that:

'the repair or replacement to which the consumer is entitled under Article 3(3) of the Directive refers necessarily to the goods not in conformity in the state and environment at the time when the lack of conformity occurs. It follows that if the goods not in conformity have been, in a manner consistent with their nature and purpose, incorporated into another thing, the goods not in conformity constitute, in that state, the object of repair or replacement. Thus, the consumer has, by means of replacement, to be put into a situation in which he would have been if goods free of defects had been delivered to him, which means that, if necessary, the goods not in conformity have to be removed and the goods free of defects installed' (Par. 41 in Weber)

While it is a view more consumer-friendly, I do believe it would extend the consumer protection a bit too far. While it is true that the consumers counted only on having to pay the costs of installation of the goods once, all the additional damage that they may suffer as a result of the non-conform goods that they had used, they are mostly likely able to claim from the seller on the basis of other national liability provisions.

It is important to mention that in Weber case another point was briefly considered by the AG. Namely, whether under the Article 3 of the Directive the seller may be obliged to bear disproportionate costs for one of the remedies that the consumer has in case of non-conformity of the goods, when the other 'primary' remedy is unavailable. (Par. 70 in Weber)

The AG claims that:

'In my view it follows clearly from that provision that that proviso applies to any remedy at ‘primary level’ so that, whether the consumer chooses repair or replacement, the remedy must in either case be both possible and proportionate, failing which the seller can refuse the primary remedies and the choice of the consumer is restricted to price reduction or rescission.' (Par. 81 in Weber)

'If the Directive were indeed, in accordance with such an interpretation, to be understood as meaning that the consumer could choose, where – as in the circumstances of the main proceedings – one of the two primary remedies referred to in Article 3(3) of the Directive was impossible, the other remedy whether or not it was proportionate, the application of the subsidiary remedies of price reduction or rescission, pursuant to Article 3(5), first indent, of the Directive, would obviously be very limited, namely to cases where both repair and replacement are impossible.' (Par. 84)

Saturday, 15 May 2010

Happy Consumer Family

Happy Consumer Family
Originally uploaded by P-E Fronning
We are all part of one big happy consumer family and since 15 May is an International Day of Families, I wanted to wish us all - all the best.

Wednesday, 12 May 2010

Anyone wants to complain? EC came up with a classification and reporting tool for that. ... Anyone?

EC recommendation of 12 May 2010 on EU-wide method for classifying and reporting consumer complaints

A few weeks ago I posted about a conference organized by the European Commission on consumer complaints. Today, the European Commission adopted a recommendation introducing an EU-wide method for classifying and reporting consumer complaints to be used by complaint bodies on a voluntary basis.

The method is expected to deliver comparable complaints data that will provide crucial evidence as to which parts of the Internal Market are underperforming for EU consumers. This, in turn, will allow for a quicker and better targeted policy response at both national and EU level. Consumer complaints are a key indicator of market health. There are more than 700 organisations handling consumer complaints in Europe. But they use different classifications. As a result, comparison and overview are not possible, even at the national level. To facilitate the adoption of the method, the Commission will provide technical assistance such as free software.

Conclusion: if you are a national consumer complaint body - call EC about the free software.

A bit worrying is the fact that the European Commission chose for the opt-in system, which means that the complaint bodies voluntarily implement and use this classification and reporting tools.

The method is intended to be used by bodies collecting complaints, such as national consumer authorities, consumer organisations, ombudsmen or regulators. These organisations will opt in to the system and to sending their data to the Commission. The Commission would then make the aggregate data public through the Consumer Markets Scoreboard.

I thought it was common knowledge by now that opt-in systems are generally much less effective than the opt out systems, since consumer behavior research showed that people tend to go with the default option. Someone should maybe let the European Commission know that if they really want the consumer complaint bodies apply the same classification and reporting tools they should maybe recommend the opt-out system and simply send the necessary software to all the national complaint bodies without waiting for them to register for that.

Well, on 27 May there will be a high-level conference held with interested national experts and policymakers. Maybe someone will raise this point then.

Press release on the subject may be found here.

Tuesday, 11 May 2010

European Consumer Consultative Group on review of Package Travel Directive: broad scope, joint liability and no full harmonisation

The European Consumer Consultative Group (ECCG) has presented its opinion on the review of the Package Travel Directive. Some of the main conclusions: a particularly broad scope, joint liability and no full harmonisation.

The main reason for the European Commission to review the Directive, is to extend the scope of the Directive to adapt to changes in the market. Most notably this concerns the so-called ‘dynamic packages’, i.e. two or more services for a single holiday trip bought at the same time and from the same supplier, or from different suppliers that are economically linked, and are put together according to the consumer’s specific needs. These usually do not qualify as pre-arranges travel packages in the sense of Article 2 of the Directive.

In the light thereof, the ECCG advises a particularly broad scope of the revised Directive:

‘[T]he ECCG calls upon the Commission to take the opportunity of the review of the PTD to extend its scope such as to cover the widest possible number of different travel services. In this respect, dynamic packages should be covered, not only when they are concluded with the same company, but also when, via a “click through” on the website of one company, the consumer is redirected to the website of another company. In this case, the first company acts as an intermediary and should be held liable as any other travel agent. Also, there should be track keeping of this “click through” in the contract concluded with the second company.
Similarly, the situation where a tour operator provides accommodation only in his advertising material should be covered by the review, bearing the same liability as any other tour operator.’

The ECCG also proposes joint liability of the seller and organiser/tour operator:

‘[T]he ECCG calls upon the Commission to introduce a system of joint liability of the seller and the organiser/tour operator, towards the consumer. In any case, the travel organiser should, in terms of chain of responsibility, always be considered to be liable and should not be able to transfer the liability to the seller only. In parallel, there must be a clear indication in the regulatory text that the liability regime for travel business is that of a strict/no fault liability.’

Not surprisingly, the ECCG opposes the possibility of the Package Travel Directive becoming a full harmonisation instrument:

‘Full harmonisation will not bring an increase in cross-border sales, as it is observed that language barriers, as well as lack of proper enforcement measures at cross-border level are the most problematic barriers in the travel sector. On the other hand, the experience gathered with PTD has sufficiently shown that national developments in the area of consumer travel can vary considerably. It is therefore essential that, on the basis of a common regulatory framework that makes it possible for companies to design services more and more in a harmonized way within the EU, Member States must be granted the right to continue to regulate their market on the basis of the expectations of their domestic consumers and, even more, to quickly intervene if new developments in their travel services market call for such an intervention to protect consumers.’

Some of the further proposals are:
  • guidelines on the calculating of compensation and the inclusion of moral damages
  • a prohibition on price modification once the contract is concluded
  • the possibility for the consumer to cancel the contract without costs in case of force majeure
  • a right of withdrawal in distance selling of travel services

For the full ECCG opinion, click here.

Monday, 10 May 2010

Let's simplify legal jargon

TED Talk given by Alan Siegel in February 2010: "Let's simplify legal jargon!"

Alan Siegel is a branding expert and one of the experts on business communication. His goal, as shown in this presentation, is to simplify plain English used in legal texts and documents. He presents how he tackled and simplified a standard consumer credit agreement as well as some IRS tax forms.

I, at least, was impressed. It was always difficult for me to understand why lawyers and academics had to use the words that 'normal' people never have heard of to explain their point of view. Personally, I never thought it showed the increased level of knowledge of the subject that so many people believed it did. Hopefully, my own published texts are more approachable, that is, at least, what I am aiming for (am open to constructive criticism, by the way, so if anyone has suggestions and remarks - go for it).

Upon having conducted lots of research on information/warning duties of professional parties towards consumers, one of the conclusions I came up with was that the way the information/warning is formulated should influence the assessment of whether the information/warning has been given properly to the consumer. The more clear the language used, the more likely it should be that the consumer actually receives the message that the information/warning contains. And only when the message is received, we may talk about an informed consumer, can't we?

I leave you with the video, supporting the message in it 100%.

Saturday, 8 May 2010

Lost baggage? You'll get €1134.71, not more - ECJ in Walz (C-63/09)

6 May 2010: ECJ case C-63/09 Walz

Liability of air carriers for loss of baggage is limited to €1134.71 which amount includes both: material and non-material damage.

Mr Walz lost his baggage on his way from Barcelona (Spain) to Oporto (Portugal) while using Clickair airlines. He claimed that his damage was worth in total €3200 of which: €2700 for the value of the lost baggage and €500 for non-material damage resulting from this loss.

Clickair airlines wanted to use the limit for compensation as established in the Montreal Convention - Article 22(2):

‘In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights [SDR] for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.'

1000SDR equals €1134.71 if anyone wonders (as at 21 April 2010 according to IMF - International Monetary Fund).

The ECJ was confronted with a question whether the limit set in the Montreal Convention applies to both material and non-material damage. The Montreal Convention itself does not define the term 'damage'. (Par. 21) The ECJ decided that the Montreal Convention uses the term 'damage' in its ordinary meaning, which means it should encompass both the material and non-material damages. (Par. 27-29) The limitation of the liability of the air carrier is a result of application of the strict liability doctrine:

'a carrier is presumed liable for that damage, ‘upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier’.
A system of strict liability of that kind implies, however, as is apparent, moreover, from the fifth recital in the preamble to the Montreal Convention, that an ‘equitable balance of interests’ be maintained, in particular as regards the interests of air carriers and of passengers.' (Par. 32-33)

The idea behind that provision was therefore that the passenger would be compensated swiftly and easily, without having to prove the fault of the air carrier in losing the baggage.

What to do if you know you are traveling with the baggage that is worth much more?

Fill in a special declaration about the value of your baggage, making sure that the air carrier takes liability for its full value. That air carrier may charge you with extra costs for transporting the baggage but it might be worth the money.

In addition, Article 22(2) of the Montreal Convention provides that a passenger may make a special declaration of interest at the time when the checked baggage is handed over to the carrier. That possibility confirms that the limit of an air carrier’s liability for the damage resulting from the loss of baggage, laid down in that article, is, in the absence of any declaration, an absolute limit which includes both non‑material and material damage. (Par. 38)

Monday, 3 May 2010

Not overly optimistic maths

Consumer Markets Scoreboard - decline in consumer conditions - edition of May 2010

European Commission published on 29 March the Spring Consumer Markets Scoreboard. Consumer Markets Scoreboard informs as to how the internal market is performing for the consumers in terms of choice, competitive prices and satisfaction.

Interesting findings for the year 2009:
  • only 29% consumers made any purchase in another EU country (25% in 2008)
  • only 25% of retailers sold to another EU country (20% in 2008)
  • 34% of EU consumers bought goods or services online from national sellers (28% in 2008)
  • only 8% ordered online from elsewhere in EU
  • over 60% of cross-border orders fail
Despite the European Commission being busy in the past decades in removing barriers to trade in the internal market, it seems that the trust of the consumers in trading cross-border is still significantly limited. There is a certain growth with every year in a number of transactions conducted, however, the progress is very slow. Hopefully, with the new directive on consumer rights focused on harmonizing the internal market even more, the chances grow that the coming years will be more successful.