Tuesday, 28 July 2015

EDPS's data protection recommendations: "Europe's big opportunity"

Yesterday the European Data Protection Supervisor published his recommendations on the EU's options for data protection reform - Opinion 3/2015 Europe's big opportunity (see here). Also, a new app has been launched - EU Data Protection - that allows everyone to compare on their smartphones the latest texts of the new law on data protection, as they've been proposed by various European legislators. These have been issued in the past 3 years (starting with the Commission's proposal of January 2012) and the intention is to finalize the text of the new law by the end of this year.

The EDPS argues, among other, for:
  • possibility for users to have control also over pseudonymised data;
  • data only being able to be used for original purposes of its collection;
  • preventing "coercive tick boxes" - forcing internet users to agree to data collection and processing when there is no need for it;
  • providing an option to give broad or narrow consent to data collection and processing (instead of "all or nothing" approach);
  • establishing "an effective system of liability and compensation for damage caused by the unlawful data processing" with a possibility of consumer organisations, among others, claiming these damages for internet users;
  • introducing the principles of data protection by design and by default with more transparency and simpler wording when rights of internet users are integrated in default settings;
  • upon internet users' request data controllers could directly transfer data to other controllers;

The end to roaming charges as we know them... or is it?

On July 15 the European Parliament's industry committee approved the deal reached between the Commission and the Council on when to end roaming charges in the EU. Pursuant to this agreement, as of next year prices for calling to/from abroad will drop and as of 15 June 2017 additional charges for cross-border phone calls or the use of internet abroad should be abolished. They "should" be abolished, since we've heard these promises before (MEPs say NO to roaming and YES to open internet). Check the table for details on what roaming charges are to look like in the coming two years. Monique Goyens, Director General of BEUC, is less than enthusiastic about the reached agreement: "Today a deal has been drafted with a date to demolish the last digital borders of roaming charges. However, there is devil in the detail. The abolition of retail roaming prices by 2017 is dependent on a wholesale market review being completed, which promises to be a tough task. We cannot call it the end of roaming when there are built-in exceptions to allow providers to charge consumers when they go abroad if they fear it's too costly. It is critical that the EU and national governments observe the deadline and finally ban roaming" (see EU reaches unambitious deal on Roaming charges and Net Neutrality).

Conference: General Principles of Law: European and Comparative Perspectives

The Institute of European and Comparative Law organizes a conference on General Principles of Law: European and Comparative Perspectives, celebrating 20 years of the Institute. It takes place on Friday 25-26 September at St Anne's College Oxford and the Mathematical Institute, University of Oxford (UK). One of the panels will discuss the protection of the weaker party and how it is to be reconciled with the principle of private autonomy.

For further information and registration details check their website.

Thursday, 16 July 2015

Sono Italiano? - CJEU in UNIC and UNI.CO.PEL (C-95/14)

16 July 2015: CJEU in UNIC and UNI.CO.PEL (C-95/14)

Not surprisingly, the CJEU followed the AG's opinion in this case (Italian leather shoes not what they used to be...) and declared Italian law that placed more stringent than European rules on marketing and placing on the Italian market of leather shoes coming from other Member States or from third countries, but which have already entered the European market, as inadmissible. While proper labelling of consumer products is important, the national labelling requirements may not, pursuant to the CJEU, go as far as to impede "placing on the market of footwear which complies with the labelling requirements of this Directive". (Par. 42) As a reminder, the Directive requires the label to reveal the composition of the footwear, e.g. whether it's leather, but does not require country of origin of the leather to be revealed. While for many consumers origin labelling is extremely important, since it may allow them to follow their own preferences with regard to domestic/foreign products, exactly for this reason it could hinder the development of the internal market. (Par. 44) Therefore, the CJEU's judgment does not surprise.

Wednesday, 15 July 2015

Reading tip: Guardian article on Google "right to be forgotten" requests

Our readers will remember that since last year's ECJ decision in Google Spain, it is possible for individuals who think certain information concerning them should not be featured among Google's search results to demand the search engine to put a filter in place by filling in a simple form.

The Guardian has perused Google's transparency report from last year and found some interesting information as to the way this possibility has been made use of so far. The ensuing article really makes a worthy read.  

Monday, 13 July 2015

Salt water as cure for anything - AG Jääsikinen in Neptune Distribution (C-157/14)

9 July 2015: opinion AG Jääsikinen in Neptune Distribution (C-157/14)

Marketing of natural mineral water is specially regulated by the Directive 2009/54 in the EU. It determines the maximum level of sodium that natural mineral waters could contain in order to be advertised as suitable for a low-sodium diet. Due to the special character of these provisions, the question arose whether they take precedence over or rather are complimentary to the Regulation No 1924/2006 on nutrition and health claims. Specifically, while in the Annex of the Regulation the claim on "low sodium/ salt" seems to exclude from its application natural mineral waters, the same exclusion has not been added to the claim on "very low sodium/ salt". The levels of "low sodium/ salt" are the same in both these measures, but the Directive is silent on the "very low sodium/ salt" standard. 


AG Jääsikinen confirms that also producers of natural mineral water while marketing it must follow the guidelines as to what could be labelled as a "very low sodium/ salt" product from the Regulation. Additionally, in the answer to one of the posed question, the AG states that in the calculation of the sodium level all sorts of sodium should be considered (and not only table salt - sodium chloride - as Neptune Distribution has argued for). (Par. 29-33) If this opinion is upheld by the CJEU this will mean that natural mineral water could not be labelled as "very low sodium/ salt" if it contained very little table salt, but the overall sodium level would be high to the e.g. appearance of some baking soda in it (apparently present in certain natural mineral waters). This assessment doesn't surprise in light of the overall aim of protecting consumer health. (Par. 47-48)

Modification or execution of the contract? Price indexation terms before the Court of Justice (AG opinion in C‑326/14)

While legislative harmonisation of private law in Europe has seemingly been put on hold for the time being, existing European measures do not cease to bring "irritations" into the subject and its vocabulary. 
Last week, for instance, AG Cruz Villalon was confronted with the question of what entails a contractual modification under Directive 2002/22 CE, or the Universal Service Directive (here, USD), and in particular its article 20(2), according to which when a modification of contractual conditions occurs, users must be entitled to terminate the contract with no penalties attached. 

The question in Verein fuer Konsumenteninformation (here, the VK) v A1 Telekom Austria AG, the case we will be discussing here, concerned an indexation clause- a term stating that the provider may increase the service price on the basis of the consumer price index variations as determined by an Austrian statistics institute. 

In short: the AG concluded that a price indexation clause should not be seen as allowing a contractual modification- and thus should not be accompanied by the possibility for the consumer to terminate the contract- where the said clause complies with requirements of foreseeabilitytransparency and legal certainty (see first para 37) such as to ensure (para 41) that that they do not in concreto modify the contract, but rather uphold the original balance.

Want to know/understand more? Read below.

The VK claimed that, under article 20(2) of the USDe, such a term should only be allowed if accompanied by a clause allowing the user to terminate the contract when a price increase was actually adopted. This is plainly the case when other kinds of adaptation clauses are included in a contract, such as clauses allowing the provider to unilaterally recalculate the price in certain situations. 
The company, on the other hand, put forward (para 21) that a price increase based on an indexing clause should not be considered as a contractual modification. The Commission endorsed this last view, adding that in this specifc case the possible variations were clearly outlined, objective and linked to an evaluation performed by an independent third party (the statistics institute).

From the legal point of view, as mentioned above, the question is how to interpret the notion of contractual modification to the ends of the USD. In other words, the question is: 
does a price increase occurring under an indexation clause represent a modification of the contract, or merely execution thereof? 

The AG, after having considered two alternative options, essentially opts for a self-standing interpretation of the concept "contractual modification" for the ends of article 20(2) USD. Let's see how. 

First, he considered whether the Unfair Terms Directive (UTD), which devotes ample attention to indexation terms, should be used as an interpretive tool. According to the AG, although the Directive can be seen to express a certain favor of the European legislator for indexation clauses, the interpretation of article 20(2) cannot be based on the UTD because that Directive only has something to say as to whether certain terms are (to be considered) fair, not on the legal nature of actions undertaken under such terms (see paras 29-30).

Having this cleared, the AG (para 35) looks into the text's plain wording. Prima facie, he says, the notion "modification to the contractual conditions" does not include a price increase deriving from the application of contractual terms. However, he goes on, such literal interpretation would deprive article 20(2) of any meaningful bite, since it would make it possible for variation clauses to deprive users of the right of termination that the provision intends to grant them. 

Thus, the concept has to be interpreted autonomously in the context of the USD. In this context, the price indexation clause should not be seen as entailing a contractual modification where the said clause complies with requirements of foreseeability, transparency and legal certainty (see first para 37) such as to ensure (para 41) that that they do not in concreto modify the contract, but rather uphold the original balance. The foreseeability prong entails that the index used should be determined by a third, independent party on the basis of objective criteria. 

In a turn that is not surprising in this context, the AG (para 40 and 45) asserts that it is for national judges to decide whether a specific term fullfils the conditions above; only in this case, should it be seen as capable of allowing price variations to take place without any contract modification in the sense of article 20(2). 

From a technical point of view, the conclusion might be dubious: how can the "transparency" of a per se valid term determine the legal nature of following actions undertaken under that term? And how exactly did the advocate general come up with the requirements of foreseeability, transparency and legal certainty (as operationalisation of "upholding of the original balance")? However, it seems that in its core the conclusion makes sense. Whether the Court will share this view, and possibly find a better way to argue it, will only be known in a few months...


Friday, 10 July 2015

Unfair terms and the rights of co-debtors as consumers: Bocura v Bancpost (C-348-14)

In a decision published yesterday, the ECJ clarified and reaffirmed a few points concerning the relationship between the information duties established under the Consumer Credit Directive ("old" version, or 87/102) and the Unfair Terms Directive (93/13). 

It also made clear- which should not come as a surprise- that a natural person assuming the role of co-debtor within a consumer credit contract, for reasons not pertaining to her professional activity, should be considered a consumer under both directives. As a consequence, such co-debtor is entitled to receiving all the information that the Consumer Credit Directive requires lenders to provide to consumers.  

The interesting consequence is that, for the ends of assessing whether certain terms contained in a credit contracts should be considered as sufficiently clear and comprehensible, the co-debtor's position should also be taken into account. In particular, in order to assess whether the terms in that contract satisfied the transparency requirement irrespective of the fact that they did not mention certain elements that Directive 87/102 considers as essential information, the consideration of whether "the set of elements liable to have an incidence on the extent of her commitment" has been duly "communicated to the consumer" should, it seems, include the co-debtor's position

The decision is, as usual, available on the Court's website (currently only in French and Romanian).

Thursday, 2 July 2015

1:0 for Goliath - short update

Regarding the collective action against Facebook's data protection laws initiated by Max Schrems that we discussed previously the Regional Civil Court Vienna (“Landesgericht Wien”) dismissed the case on formal grounds. Schrems announced to appeal the decision.

For further details in German click here.

Thursday, 25 June 2015

Notary public warns against unfair contract terms - AG Cruz Villalón in C-32/14 (Erste Bank Hungary)

25 June 2015: opinion AG Cruz Villalón in case C-32/14 (Erste Bank Hungary)

Due to the importance of the mortgage agreements in most MS consumers planning to purchase a real estate need to conclude a loan/mortgage contract through the act of a notary public. Hungary is one of these countries. In this case a question arose inter alia as to the responsibility of the notaries public with regard to examining terms in the contracts they prepare against the unfairness test, as well as whether the proceedings to establish an executory title on a loan/mortgage agreement need to allow for an unfairness test of agreement's terms.

In December 2007 Attila Sugár concluded a loan agreement combined with a mortgage with Erste Bank Hungary. The contract was prepared by a notary public. Due to the consumer defaulting on his loan payments upon the bank's motion in December 2011 the notary public annulled the loan agreement and started execution proceedings against the consumer. In June 2013 the consumer appealed to the notary public to take away the executory title due to the loan agreement containing unfair contract terms. The notary public refused consumer's claim, confirming he acted in accordance with the formal proceedings that bind him as well as lack of his competence to preside over a dispute. The consumer appealed to court.

Advocate General concludes in his opinion that generally Member States may allow notaries to give executory titles to loan/mortgage contracts without having to engage in testing unfairness of this contract's terms. The Hungarian procedure taking place at the notaries' offices is purely formal and does not leave any room for unfairness test to be conducted. The AG indicates that while CJEU previously opposed a possibility to give an executory title to a loan/mortgage agreement without conducting an unfairness test, this assessment pertained to the judiciary role of courts. A notary public and his tasks are incomparable to these of a judge and a court (Par. 65-67) A consumer may still oppose the notaries' decision by going to court and if his protection against unfair contract terms is guaranteed in judiciary system, then AG considers Hungarian law compliant with the Directive (Par. 70-71)

However, if a notary public while preparing a notary act finds a potentially unfair contract term in it he should inform about this the consumer. The AG infers this duty to inform from the notaries general duty to inform and advise consumers (Par. 78-80). Just a warning about potential unfair contract terms in the contract is also insufficient, since the notary needs as well to explain to the consumer his role in and the procedure of execution of the loan/mortgage agreement (Par. 81).

While a notary public doesn't have a duty to search for unfair contract terms in a contract or to examine contract terms as to their unfairness, he acquires a duty to notify (inform/warn) the consumer that there is a potential unfair contract term in his contract. As with most duties to inform we may wonder when exactly consumer could expect to receive such a notification and what standard of care/ due diligence would be expected of the notary public by national courts.