Friday, 28 January 2011
Thursday, 27 January 2011
iConsumers: an eYou guide on digital rights
citizens, organisations and public authorities with an interest in European contract law: a possibility to take part in the public consultation on the Commission's green paper regarding this field (deadline Monday 31 January 2011!)
and other poets.
“Cloud computing conjures up images of floating zeroes and ones – data liberated from the desktop and drifting effortlessly from one server to the next.”
While this poetic line from Viviane Reding’s speech for tomorrow’s data protection day already makes a post on this blog worthwile, you may well be asking yourself what this ‘cloud computing’ is all about and what on earth it has to do with consumer law.
First of all: what is ‘cloud computing’? Cloud computing concerns online software which can be used by consumers and businesses without them having to install the software on their computers. Think of online data storage, but also of online network software such as LinkedIn or Facebook.
These programs are of great value to consumers and businesses, but also bring along risks concerning data protection (privacy as well as the risk of loss of data). The EU Data Protection Directive is running old (15 years) and so the Commission is announcing improvements in order to safeguard the consumer’s confidence in cloud computing services. Or, in the words of Reding: ‘A cloud without robust data protection is not the sort of cloud we need.’
For more beautiful poetry (as well as information on Reding’s proposals on cloud computing), click here and here.
Happy data protection day tomorrow!
[Picture: David Kleinert Photography]
Wednesday, 26 January 2011
John Dalli, European Commissioner for Health and Consumer Policy, said it was an important step forward for all patients in Europe.
The Directive will benefit patients across Europe by clarifying their rights to access safe and good quality treatment across EU borders, and be reimbursed for it. Generally speaking, people prefer to receive their healthcare closer to home. No one wants to travel further than necessary when they are sick. However, sometimes the need for certain treatment leads patients to go abroad. Another reason could simply be that the nearest hospital lies across a border.
In addition to providing a clear and coherent set of rules on cross-border healthcare, this Directive will benefit patients in several other ways. It will help patients who need specialized treatment, for example those who are seeking a diagnosis or treatment for a rare disease. It will bring about closer and improved health cooperation, including the recognition of prescriptions, between Member States. Health experts across Europe will be able to exchange best practices and mutually benefit from innovations in health technology assessment and eHealth.
Tuesday, 25 January 2011
The burning question for consumers undoubtedly is: “How can I tell when a particular commercial practice is unfair?” The Unfair Commercial Practices Directive simplifies the answer to this question. Certain commercial practices are always prohibited under the Directive throughout the European Union while the legality of others can be determined by applying clear and common criteria.
First of all, certain commercial practices are always prohibited under the Directive. To ensure that traders, marketing professionals and customers are clear about what is banned, a black list of 31 unfair practices has been drawn up. The same list applies in all 27 Member States of the EU. The legality of a commercial practice that is not banned outright can be assessed by evaluating it against specific legal criteria. Two main categories of unfair commercial practices – "misleading" and "aggressive" – are described in detail in the Directive. The vast majority of practices which would be considered unfair fall under these provisions.
'Human rights conventions are constructed with the high responsibilities of coercive governments in mind: they assume that government must show all those over whom it exercises power an equal concern. We must therefore approach the question whether people have comparable rights against giant transnational corporations by first fixing the level of concern these organizations owe to those whose lives they affect. Which analogy should we use? Ordinary commercial enterprises do not owe the same concern to customers as to shareholders: they are obliged to seek a profit for the latter by enticing the former. They are subject to the constraints of decency of Part 4 [of 'Justice for Hedgehogs', CM] but not the much stronger constraints of coercive government. But giant corporations have many powers that strike critics as coercive and it might therefore be right to hold them to the greater level of concern we associate with governments. I have not attempted argument for or against that different analogy, but nothing in my discussion of human rights in Chapter 15 rules it out.'
Question: where would (or should) the line be drawn between 'ordinary' and 'giant' corporations?
And: can a theory of (international) fundamental rights do without a further explanation of the addressees of these rights, i.e. without explaining against whom fundamental rights may be asserted, and why? (compare Sloane, p. 985-986)
(Which reminds me of another previous post on the scope of fundamental rights protection)
Monday, 24 January 2011
The latest draft of the proposal for the CRD aims at harmonization of TWO currently binding directives: Directive 97/7/EC on Distance Selling and Directive 85/577/EC on Doorstep Selling. Unfortunately, in the works on the CRD no consensus was reached on what the desirables provision of the regular consumer sales transactions should be. Also the unfair contract terms regulation was left out of the final draft. Still, the EU authorities are optimstic that the CRD will "give consumers more confidence when they shop online", "will strengthen both the Single Market's functioning and consumer rights", "will make it easier for consumers to shop cross-border, in particular on the Internet", "will make it less costly for traders to offer their products to consumers in other countries", "businesses will benefit from lower costs, a level playing field and more legal certainty".
There are indeed certain much need changes to the doorstep and distance selling that the CRD introduces, taking into account the current consumers' problems with these transactions (e.g. hidden charges, lack of right of withdrawal from online auctions, default pre-ticked boxes). However, despite the high words used by Viviane Reding, the EU's Justice Commissioner, still falls short of its original goal to fully harmonize consumer protection in the most important areas of consumer rights.
Thursday, 20 January 2011
Wednesday, 19 January 2011
As regards the 'do'-question: A new EU Compendium on 'Fundamental Rights and Private Law', edited by Christoph Busch and Hans Schulte-Nölke (European Legal Studies Institute, Osnabrück) provides interesting insights into the practice of fundamental rights application to civil cases, based on a wide-ranging legal-comparative analysis. Aimed in particular at judges and legislators, it gives an excellent introduction to the topic and may thus inspire the further integration of fundamental rights argument in (consumer) contract law.
Talking about new books: Those of you interested in the 'should'-question are probably already (getting) familiar with Ronald Dworkin's 'Justice for Hedgehogs'. An interesting reply to his account of human rights, by Robert Sloane (Boston University), can be found here.
Tuesday, 18 January 2011
ADR are nothing new (more information on ADR in European Union may be found here). There are over 750 of them in various Member States. However, there is no harmonisation as to this alternative to courts that consumers may use to solve their disputes with professional parties. ADR is supposed to be advantageous to consumers due to its speed and low costs of participation. Certain directives already mention these schemes (e.g. E-Commerce Directive) and European Commission was already recommending the use of ADR for cross-border disputes. You might think that there is no need for European Commission beginning a public consultation on ADR then. However, the fact that the need for and advantages of the ADR had been recognized in past years does not mean that the state of the art as far as they are concerned is satisfactory. The public consultation that is being launched now is suppose to address certain problems with ADR: the territorial scope of their activity (certain Member States have more possibilities open to consumers to use ADR than others), the sector-specific activity of ADR (certain sectors do not recognize the possibility to solve the disputes via ADR at this moment), the recognition of ADR (the idea is to encourage both consumers and professional parties to use the ADR system). The European Commission's public consultation will remain open until 15th of March 2011 (more information on taking part in it may be found here) . The legislative proposal is expected for November 2011.
Friday, 7 January 2011
The OFT described mental capacity as ‘a person's ability to make decisions and depends in part on their cognitive abilities to: learn, remember and understand’. For many people, for reasons of illness or disability, their mental capacity can be affected in ways which may prevent them from making certain decisions that may impact on their lives.
The OFT’s guidance for creditors on mental capacity is a way to advance the principle of responsible credit. In the context of consumer credit, the principle of responsible lending concerns professional diligence in assessing creditworthiness and supporting education of consumers,warnings about the risk related to default on payment and over-indebtedness. In this particular case, the OFT expects creditors to form a view on whether the borrower is able, perhaps with support, to make an informed borrowing decision and whether they can afford to make repayments under the credit agreement in a sustainable manner.
Further, the principle of responsible lending have gained a considerable momentum in the European Consumer Credit Directive(Directive 2008/48/EC). Aimed at tailoring credit products to consumers’ needs and ability to repay. This has implications for evaluating the suitability of the product design as such and the suitability of the product for a particular borrower. The latter includes consumer’s understanding of the product and its risks and lender’s understanding of the creditworthiness.
Tuesday, 4 January 2011
The intersection of financial exclusion and vulnerability in the context of access to and use of credit
What is the real power of New Year’s resolutions? This morning I started to carry out mine which have to do with more jogging. However, there is nothing fantastic about it, as New Year’s resolutions mostly have to do with goals aimed at improving one’s physical health. Nevertheless, the UK Office of Fair Trading(OFT) has recently set a more remarkable challenge for consumers by urging people to begin thinking now about saving for next Christmas, somehow aimed at improving consumer financial health.
Accordingly, the OFT is providing practical advice to people wishing to avoid the financial strain they may have faced this Christmas as part of its Save Xmas campaign. Top tips include: (1) plan early - be realistic about what you are going to need for next year and budget accordingly, (2) look at your options - find out about the pros and cons of post office, bank, building society and credit union savings schemes, as well as Christmas clubs, supermarket stamps and hamper schemes and(3)take action - choose the best option for you, and start putting some money aside. See more details at OFT website.Despite prevention of over-indebtedness and consumer insolvency is a necessary approach in UK and any other Member State, not agreement has been reached on whether it should be encourage to treat consumption on the basis of earned income instead of expected income. See final report of the Group of Specialist for Legal Solutions to Debt Problems(CJ-S-DEBT) launched in 2006.