Tuesday, 24 December 2013
Friday, 20 December 2013
Since this blog regularly reports on preliminary rulings of the Court of Justice of the EU, some of our followers may be interested in learning more about the daily practice at the Court and a judge's view on the interaction between the CJEU and national courts.
If you are among those readers, you will find some nice literature for the holidays on the European Law Blog, where our colleagues have posted an interview that they recently held with Judge Sacha Prechal. Part I is about what it is like to be working at the Court, Part II concerns the cooperation with national judges, and embedding the internal market and transparency at the CJEU.
Thursday, 19 December 2013
19 December 2013: Opinion AG Sharpston in 4finance case (C-515/12)
AG Sharpston delivered a very interesting opinion today in a Lithuanian case concerning potential pyramid schemes. Have you ever been asked to recommend a certain product or a service to a friend by providing their email address or a phone number on a website, having been promised that if they register for the same service/ product you would get a certain benefit? The CJEU has to assess whether such practices could be considered to constitute a pyramid scheme that is prohibited as an unfair commercial practice in the EU.
UAB "4finance" concludes distance contracts with consumers the purpose of which is to grant consumers small loans. From October 2010 to February 2011 it advertised its services by stating that anyone who registers on its website would receive a credit to his bank account for each 'friend' introduced by them who then registered on this website. The initial registration fee was very low - LTL 0.01, while if a friend registered on the same website consumers could get a credit to their account ('a bonus') of either LTL 10 or LTL 20. While registering every consumer was asked to provide a phone number or an email address of his friends, who would then be invited to register by 4finance. After registration you could apply for a small loan with 4finance.
The Lithuanian State Consumer Rights Protection Authority considered this to be a pyramid selling scheme, where consumers received a right to payment primarily for the introduction of new entrants to the scheme rather than for the sale or consumption of products, and, therefore, it fined 4finance. Since 4finance questioned this decision the case arrived at the CJEU.
AG Sharpston decided in its opinion that a national court to establish that there was a pyramid promotional scheme needs to take into consideration: 1) whether a consumer gave consideration in order to join such a scheme; 2) whether the scheme had a pyramid structure - that is it consisted of different levels with the operator at the apex and there was a cumulative recruitment of new members increasing exponentially; 3) whether the compensation paid to existing scheme members was derived primarily from the consideration given by new recruits, and it should not matter how small the consideration was.
This opinion was based on the cumulative and exhaustive list of elements that must be established in order to recognize a pyramid scheme as mentioned in Point 14 of Annex I to the Directive. The pyramid scheme does not have to be fraudulent, since fraud is not one of the requirements. Nor is there a requirement there for the consideration to be of (at least) a certain value. (Par. 21) It also does not matter whether a high amount of the return in comparison to the entry fee is promised or a speedy gain, since these requirements are not listed either as defining pyramid schemes (Par. 22).
There is an interesting issue of conflicting language versions of the Directive that the AG Sharpston interprets, so for anyone interested in language & law debate, you should read the text of the whole opinion.
CJEU on the scope of unfair commercial practices - Case C‑281/12 (Trento Sviluppo en Centrale Adriatica)
Can incorrect advertising with the only effect of making consumers visit a certain shop be sanctioned as an unfair commercial practice?
Today, the Court of Justice decided that this is actually the case under European law.
The decision was rendered in the case Trento Sviluppo srl, Centrale Adriatica Soc. coop. arl v Autorità Garante della Concorrenza e del Mercato, case C‑281/12. An Italian consumer had complained to the local consumer autority (Autorità Garante per la Concorrenza e il Mercato, AGCOM) about a folder spread by a supermarket. The folder showcased an attractive offer concerning a laptop; when the consumer went to the shop and tried to by the product, however, it was not available. AGCOM opened an investigation and decided to fine the supermarket for attracting customers on its premises through an enticing yet bogus offer.The defendant challenged the fine and brought an action which finally ended up in front of the CJEU.
The Court in this context had to assess whether the relevant European instrument, ie the Unfair Commercial Practices Directive, allows national authorities to include a similar advertising technique within the scope of forbidden commercial practices.
The Directive (article 5) prohibits practices which are likely ‘to materially distort the economic behaviour of consumers’. Two main categories of practices are forbidden, namely aggressive and misleading practices. According to article 6 of the Directive, a practice is misleading
"if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:…(b) the main characteristics of the product, such as its availability …
The core question before the CJEU was, accordingly, whether the decision to visit a shop can be considered as a "transactional decision" which the concerned advertisement was likely to affect. This requires to interpret the wording in a rather extensive way: the definition of transactional decision contained in the directive's art 2(k), however, is quite broad, covering ‘any decision taken by a consumer concerning whether, how and on what terms to purchase’
Interpreting the Directive, the Court esteemed that the definition "covers not only the decision whether or not to purchase a product, but also the decision directly related to that decision, in particular the decision to enter the shop."
The practice of enticing consumers by advertising attractive offers with (very limited) availability is hardly rare in many sectors. Therefore, it is likely that the impact of this decision will mostly depend on national authorities and their willingness to sanction similar cases every time they come under their attention.
Friday, 13 December 2013
And just one more news item for today: strengthened consumer rights can of course not diminish the reality of the economic crisis and an honest evaluation of the state of EU citizenship is, therefore, needed. The European Ombudsman, Emily O'Reilly, gave a speech on this topic at the closing conference of the 'European Year of Citizens 2013', which highlights the importance of bringing Europe closer to its citizens:
'This is a time therefore when we need to keep foremost in our minds those values and principles on which the EU was founded, not just the economic ones but also, and more importantly, respect for fundamental rights, for the notion of freedom, solidarity the protection of minorities and respect for cultural and language diversity.
The Irish President Michael D. Higgins has referred to “Human Europe” and when people struggle to describe what is felt to be missing from the current make up of our Union perhaps this precisely is it, the sense of the heartbeat pulsating away and not just the sterile and silent ebbs and flows of the stock market.'
A summary of the Ombudsman's speech can be found here.
Yesterday, the European Parliament voted in favour of draft legislation giving anyone legally residing within the EU a right to open a bank account. I quote from the Parliament's press release:
'"In today's world, consumers as well as the retail sector depend upon access to modern payment services. Providing electronic payment services is not very costly, and they can make consumers' lives easier, boost business efficiency and help to modernize our economies. Parliament therefore considers it urgently necessary to require banks to provide these services and empower consumers to make informed choices. Parliament has dealt promptly with this file, and it is now up to EU member states to do likewise, so that we can conclude work on this file in spring next year", said lead MEP Jürgen Klute (GUE/NGL, DE), after the vote.'
See also BEUC's press releases: 'Bank account plans: Timid steps towards more transparency' and 'EU paves way for the bank accounts consumers actually need'
Yesterday, European consumer organisation BEUC published a study that our colleague Natali Helberger (Institute for Information Law) prepared on consumer information. Her paper, which is also available on SSRN, may be summarised as follows:
Thursday, 12 December 2013
Challenging the Data Retention Directive - Opinion of AG Cruz Villalón in Case C-293/12 Digital Rights Ireland
Whilst the case mentioned in my previous post concerned a question that according to AG Wahl is beyond the reach of EU law, AG Cruz Villalón today presented his opinion on a topic that is certainly within its scope and, if the CJEU follows the AG's reasoning, could have a paramount effect on it. In Digital Rights Ireland, the AG submits that the EU's Data Retention Directive is incompatible with the right to privacy laid down in the Charter of Fundamental Rights.
AG Cruz observes:
'72. [T]he collection and, above all, the retention, in huge databases, of the large quantities of data generated or processed in connection with most of the everyday electronic communications of citizens of the Union constitute a serious interference with the privacy of those individuals, even if they only establish the conditions allowing retrospective scrutiny of their personal and professional activities. The collection of such data establishes the conditions for surveillance which, although carried out only retrospectively when the data are used, none the less constitutes a permanent threat throughout the data retention period to the right of citizens of the Union to confidentiality in their private lives. The vague feeling of surveillance created raises very acutely the question of the data retention period. (...)
77. It is true that Directive 2006/24 requires the Member States to ensure that data are retained in accordance with that directive. It is interesting to note though that it is required to carry this out only in such a way that those data and any other necessary information relating to them ‘can be transmitted upon request to the competent authorities without undue delay’. Directive 2006/24 provides, moreover, that the Member States must ensure that providers of electronic communications services observe minimum principles concerning the protection and security of the data retained.
78. However, no provision of Directive 2006/24 lays down the requirement for those service providers themselves to store the data to be retained in the territory of a Member State, under the jurisdiction of a Member State, a fact which considerably increases the risk that such data may be accessible or disclosed in infringement of that legislation.
79. That ‘outsourcing’ of data retention admittedly allows the retained data to be distanced from the public authorities of the Member States and thus to be placed beyond their direct grip and any control, but by that very fact it simultaneously increases the risk of use which is incompatible with the requirements resulting from the right to privacy.
80. Directive 2006/24 therefore constitutes, as is clear from the foregoing reasoning, a particularly serious interference with the right to privacy and it is in the light of the requirements resulting from that fundamental right that its validity, and in particular its proportionality, must primarily be examined. (...)
102. The serious interference with the right to privacy which, as a consequence of the "creating" effect of Directive 2006/24, the Member States are meant to incorporate into their own legal systems thus appears to be disproportionate to the need solely to ensure the functioning of the internal market, even if that collection and retention must also be considered an appropriate and even necessary means of achieving the ultimate objective pursued by the directive of ensuring that the data are available for the purpose of the investigation and prosecution of serious crime. In summary, Directive 2006/24 would fail the proportionality test for the very reasons which justified its legal basis. The reasons for its legitimacy in terms of its legal basis would, paradoxically, be the reasons for its illegitimacy in terms of proportionality.'
On the division of tasks between EU and Member States, AG Cruz remarks:
'120. The European Union legislature cannot, when adopting an act imposing obligations which constitute serious interference with the fundamental rights of citizens of the Union, entirely leave to the Member States the task of defining the guarantees capable of justifying that interference. It cannot content itself either with assigning the task of defining and establishing those guarantees to the competent legislative and/or administrative authorities of the Member States called upon, where appropriate, to adopt national measures implementing such an act or with relying entirely on the judicial authorities responsible for reviewing its practical application. It must, if it is not to render the provisions of Article 51(1) of the Charter meaningless, fully assume its share of responsibility by defining at the very least the principles which must govern the definition, establishment, application and review of observance of those guarantees.'
Accordingly, 'it was for the European Union legislature to define the fundamental principles which were to govern the determination of the minimum guarantees for access to the data collected and retained and their use' (para. 121).
See the CJEU's press release for further details.
See the CJEU's press release for further details.
What position do consumer organisations hold under EU law when it comes to assisting consumers in pursuing their claims in court? While the Court of Justice of the EU (CJEU) recently clarified the conditions under which a consumer organisation may bring an independent claim regarding unfair contract terms (ACICL v. ASE), a case that is currently pending concerns the possibilities for an organisation to join in a procedure regarding the enforcement of an arbitration award. Today, Advocate-General Wahl handed down his Opinion in this case, C-470/12 Pohotovost'.
The case concerns a Slovak credit supplier, Pohotovost', who had concluded a consumer credit contract with a certain client. Subsequently, as a result of arbitration proceedings concerning this contract, an arbitration tribunal ordered the consumer/client to pay the credit company a certain amount of money. The arbitration award became final and execution proceedings followed. At this stage, consumer organisation HOOS asked to be added to the proceedings, in particular in order to challenge the impartiality of the bailiff involved in the case, who earlier had been employed by Pohotovost'.
Slovak procedural law prevents the consumer organisation from joining the proceedings. The referring court is in doubt as to the validity of this national rule of procedure in light of the consumer protection offered by EU Directive 93/13 jo. Articles 38 and 47 of the EU Charter of Fundamental Rights (consumer protection and the right to an effective remedy).
According to AG Wahl, EU law does not preclude a provision of national law that prevents a consumer organisation from joining in enforcement proceedings. At the same time, the relevant provisions of EU law do not stand in the way of a judge allowing a consumer organisation to join such proceedings. In other words, in the AG's opinion the question referred to the CJEU is neither directly nor indirectly governed by EU law: Directive 93/13 does not address the role of consumer organisations joining in individual proceedings, nor does it prohibit Member States from adopting a higher level of consumer protection by allowing judges to accept consumer organisations being added to such proceedings. Articles 38 and 47 of the Charter do not lead to a different conclusion, since they do not support an interpretation of the Directive in the sense that it would lay down a right for consumer organisations to join in individual enforcement proceedings.
In sum, whereas this opinion does not promote a further extension of EU legislative competences (and thus respects the procedural autonomy of the Member States), it does offer a clear illustration of the process of constitutionalisation of EU consumer law (visible in the growing number of references to the Charter in preliminary reference procedures).
Today, the CJEU released a decision whose potential impact on Member States' administrative practice will have to be carefully weighed in the coming months.
The main question before the Court was the following: (how much) can citizens be required to pay in order to get a transcript of their data being processed by an administration?
Access to personal data is a very important component of European data protection, last but not least because it is instrumental to other pillars thereof (such as the right to have one's data deleted). In the case at hand, Ms X wanted to get a transcript of her residence information over a number of years from her municipality, in order to claim that the notice concerning a certain fine had been sent to the wrong address. Her municipality provided her a certified transcript of her past and present addresses levying a charge of ca 12 euros. X consteted the payment request before a local court, which denied her claim. The Court of Appeal of 's Hertogenbosch issued a preliminary ruling request.
Dutch law does not leave authorities free to charge any price for the transmission of certificates. The sum levyed must be such that "the income from that fee does not exceed the related expenditure". It is not guaranteed, however, that the "related expenditure" considered only concerns the transmission costs. Besides, from the wording of Directive 95/46 which sets European principles in the matter, it is not clear whether authorities can claim a fee at all.
From the English and Dutch versions of the Directive, it could seem that the data should be communicated without excessive delay and free of charge. Other language versions, however, inter alia the German, Spanish, Italian and French ones, do not seem to grant a similar interpretation. All in all, the Court considers there is no prohibition for MS to levy a fee on this "service" [par 21].
If a sum can be charged, is there a limit to it? The Court considers that such limit should be carefully considered in order to make sure that the need to pay a charge is not likely to prevent anyone from accessing her of his personal data [par 29]. It is in principle up to national courts to ascertain whether the fee levied respects this condition. However, just after having stated this principle, the Court gives a much more precise criterion: the fee should not exceed the costs which the authority has to incur in order to transmit the information. National courts have to "carry out any verifications necessary" to ascertain whether such requirement has been respected [par 31].
What will this imply for national burocracies? There's quite something to be curious about.
Wednesday, 11 December 2013
Earlier this year, we had reported that the European Parliament, both through its Economic and Monetary Affairs Committee and in a plenary vote, had manifested its support for the Commission's proposal on a Morgage Credit Directive. On Tuesday, the Directive has been approved in first reading, which means that now the word is to the Council, that might decide to approve the directive or to send it back to the Parliament with amendments.
Some key features of the proposed directive are:
- the introduction of a standardised information sheet, which should make comparing different offers easier and also include "worst case scenario" information;
- the establishment of a series of business conduct rules aimed at preventing malpractice and conflicts of interests;
- esuring that consumers are given the chance to repay the debt earlier than originally agreed;
- a "passport" regime aimed at making it easier for credit providers to do business cross-borders;
- european-wide standards for the credit-worthiness assessment of mortgage applicants.
- rules facilitating the "smooth" handling of arrears and other repayment difficulties.
The impact of the rules would vary greatly from country to country. For instance, the Commission's impact assessment reports that in 2006/2007, a stunning 45% of UK mortgages were granted without the consumer's income being verified, a figure which is unlikely to represent the EU's average. An interesting collection of fact and figures has been put together in a rich Commission memo.
The text of the proposed directive can be dowloaded here (part II).
As we mentioned in February, the European Commission was examining the practices of pharmaceutics companies with regards to their delay in introducing cheaper, generic versions of a painkiller 'fentanyl' on the Dutch market (Consumer health update). Since the Commission could establish from the internal documents of the pharma companies that they agreed to delay the introduction of the generic meds for 'a part of [the] cake', the Commission had no doubts that the so-called 'co-promotion agreement' was really an anticompetition agreement and infringed the EU law. The US company Johnson & Johnson was fined with almost 11 million USD, while the Swiss company Novartis has to pay almost 5,5 million Euro in fines (Commission fines Johnson & Johnson and Novartis Euro 16 million for delaying market entry of generic pain-killer fentanyl).
You may have heard previously that sugar is bad for consumers, but the artificial sweeteners are often mentioned as being even more detrimental for consumer health (see e.g.: Coca-Cola 'under pressure' from consumers over Diet Coke aspartame use). The European Food Safety Authority (EFSA) announced yesterday its opinion on one of the most commonly used sweeteners - aspartame. It conducted a full risk assessment thereof and concluded that this substance is safe at current levels of exposure (current acceptable daily intake is estimated at 40mg/kg bw/day). In their studies experts have ruled out a possibility of aspartame causing damage to genes and inducing cancer, harming the brain, the nervous system or affecting behaviour or cognitive functions of its users. The breakdown products of aspartame appear naturally in other foods and therefore should not be seen as posing additional risks, either.
The European Council's meetings take place this week and the Council published yesterday its conclusions among others with regards to stepping up the fight against illicit trade in tobacco products (Economic and Financial Affairs). Since the business of smuggling cigarettes into the EU seems to be growing, the Council deems it necessary that stricter rules are applied to prevent it. The negative financial impact of illicit trade in tobacco products is estimated at over 10 billion euro on the budget of the EU and the Member States. More importantly for consumer protection, such practices have a negative impact on health protection, especially of young people. The Council points out to the Member States and the Commission areas in which some improvements could be made to more effectively combat illicit trade, e.g., easier and faster detection of smuggled tobacco products, cooperation with source and transit countries, awareness raising campaigns (Cigarette smuggling threatens financial, social and health security of the EU and must be tackled effectively).
Tuesday, 10 December 2013
As we reported last month ("Sir, please, leave your mobile ON"), and as timely as promised, the European Aviation Safety Agency (EASA) updated its guidelines on the use of portable electronic devices on board (PED). Pursuant to the new rules air passengers will be allowed to use their smartphones, e-readers, tablets provided these remain in the "Flight Mode" throughout the whole journey, which includes take-off, taxiing and landing. No more having to switch off and on your devices for these few annoying minutes. The guidelines should be published in the beginning of 2014 and hopefully the airlines will start applying them ASAP. (EU extends the use of electronic devices on planes) More information about these rules may be found here.
Thursday, 5 December 2013
Today, the CJEU delivered also a judgement concerning enforcement of uncontested cross-border claims: Case C‑508/12 Vapenik v Thurner.
European Enforcement Orders are a mechanism allowing judgements on uncontested claims to be enforced in a country different than the one where they have been issued without incurring the hurdles of exequatur or validation procedures.
The dispute concerned repayment of a loan concluded between two parties none of whom was acting in a professional capacity. They were, this, both consumers.The creditor sued in his home country Austria, the procedure ran in accordance with Austrian law and the duly notified debtor decided not to appear before the court. The judgement, which found in favour of the creditor, remained unchallenged and thus became final and enforceable. The creditor then asked the same Austrian court to grant him a European Enforcement order to have the judgement more easily enforced in Belgium, where the debtor lives. The court refused, holding that one of the requirements for issuing such an order against a "consumer" debtor is that the judgement has been given in the state where he has his domicile (see Regulation 805/2004, art 6(1)(d)).
In short, the CJEU found in favour of the claimant, the creditor, who submitted [par 20] that the rule is intended to protect consumers when the other party is a professional and does not apply to "peer to peer" contracts as the one at hand.
In particular, the court observed [par 33] that "there is also no imbalance between the parties in a contractual relationship such as that at issue in the main proceedings, namely that between two persons not engaged in commercial or professional activities. Therefore, that relationship cannot be subject to the system of special protection applicable to consumers contracting with persons engaged in commercial or professional activities."
P.S.: More curious readers might also want to take a look directly at the Court's reasoning in the case, which provides an interesting outlook on (the Court's view on) consumer protection as a system.
Consumer protection associations require less protection than consumers - CJEU in C-413/12 (ACICL v. ASE)
5 December 2013: CJEU judgment in C-413/12 (Asociación de Consumidores Independientes de Castilla y León v. Anuntis Segundamano España SL)
Unfair Contract Terms Directive enables not only consumers to claim unfairness of contractual provisions included in their specific contracts, but it also gives a possibility to consumer protection organisations to represent consumers in claiming unfairness of certain contractual provisions in abstracto. In the case adjudicated today the CJEU was asked to assess on what conditions consumer protection organisations may start such proceedings.
A Spanisch consumer protection association - ACICL - has its registered office in Salamanca, 110 members and limits its activity to the territory of the province Castilla y León. It asked for an injunction before the court in Salamanca against ASE - a commercial company registered in Barcelona. ASE manages a website on which various parties, both professional and non-professional, may publish advertisements concerning real estate and second-hand goods, but also employment. Standard contract terms of ASE contained two provisions (limiting liability and guarantees), pursuant to ACICL, which should be seen as unfair and ASE should be prohibited from using them in the future. The court in Salamanca refused, however, to preside over the case finding that it did not have jursidiction in the matter, since Spanish law obligates consumer protection association to start injunction proceedings before the court of the defendant's residence.
CJEU was asked whether the high level of consumer protection argued for in the Directive should not preclude such national procedural provisions that force a consumer protection association to ask for an injunction before the court where the defendant has its residence. Moreover, the inability to appeal from a court's decision to refuse jurisdiction was questioned. After all, contractual clauses that force consumers to start proceedings before the courts other than of his domicile are often recognized as unfair. However, the CJEU does not consider consumer protection associations to be in the same inferior position with regards to the seller or a service provider, as a consumer would be in. (Par. 48)
The CJEU decided today that national law may require consumer protection associations to bring injunction proceedings before the court where the defendant has its residence and there is no need for appeal proceedings to be granted in case jursidiction is denied. While Art. 7 of the Directive obligates Member States to enable consumer protection associations to represent consumers interests by asking for an injunction against the continued use of injunctions, the Directive does not contain any provisions that would regulate which national court should have a jurisdiction or how many instances of jurisidiction are given. (Par. 28) This issue has also not been regulated in the Injunctions Directive. (Par. 29) There is, therefore, no harmonized procedure on the matter. The principles of effectiveness and equivalence are also not seen as having been infringed. The CJEU does not consider the fact that the ACICL may not have financial means to start an injunction procedure at a court that is far away from its own offices an obstacle that results from the existence of the national procedural rules, but rather from the assciation's financial situation. (Par. 37) The general procedural rules aim at protecting justice and foreseeability and are given priority here over individual interests, that is, specific financial situation of a party. (Par. 38) The answer of the CJEU could be different if the procedure was a cross-border one, since then it may not be expected of the organisation to have to start a case only before the court's of the trader's country of residence (see Henkel - par. 47).
Tuesday, 3 December 2013
The ECC-Net published a report "Enhanced Consumer Protection - the Services Directive 2006/123/EC. Analysis of Article 20.2 and Article 21 related consumer complaints reported to ECC-Net between 2010 and 2012". This network gives consumers free professional advice related to their problems with cross-border transactions within the EU (incl. Norway and Iceland). As the name suggests this report analyses two years worth of reports on consumer complaints submitted with regards to the cross-border transactions they concluded. While the aim of the EU is to create a more uniform European internal market where consumers would be able to benefit from deals not only in their own home countries but also in other European Member States, in order to achieve this objective the same level playing field needs to be created for consumers. This means that consumers should not be discriminated based on their nationality or place of residence (e.g., if you want to buy a good in Poland, you should be offered it under the same price whether you reside in Poland or in Greece). That being said, 74% of the received complaints concerning services showed that consumers were offered different prices (based mostly on their residence ) while buying goods online (167 cases of different treatment out of 222 reported to ECC-Net), 21% complaints were related to services in the tourism industry and 5% in the rental and leasing services. The service providers mostly introduce differences in providing their services and in their prices by either redirecting consumers to national websites for limited access to retail goods, or by tailoring offered services to the consumer's country of residence. Consumers mostly complained about the refusal to supply, price differentiation and difference in other conditions of access (e.g. requirement to have a bank account in a given country). 72 cases out of 222 (32%) required active intervention on behalf of consumers with a nearly 50% rate of success. Only 12 cases were reported to relevant enforcement authorities with only one decision having been made by these authorities. More data can be found in the report, but the ECC-Network signalises that more should be done to make the Services Directive effective for consumer protection.