EUCFR one year on

Having rights is one thing, enforcing them may be quite another. Today, the European Commission presented its first Annual report on the application of the EU Charter of Fundamental Rights, which maps the Charter's application following the entry into force of the Lisbon Treaty. The staff working document that accompanies the report gives a relatively elaborate overview of the specific policy areas in which the Charter has so far played a role.

As far as consumer protection is concerned, the Commission highlights the work on the Consumer Rights Directive and the modernisation of the Package Travel Directive (p. 40 of the staff working document). The report and working document, however, also contain references to several other topics that are of relevance for consumers and have been discussed on this blog earlier, such as: data protection, online behavioural advertising, children's rights and access to justice.

Among the facts and figures, furthermore, data can be found concerning the amount of questions the Commission received from the general public on fundamental rights protection. One that stands out is the considerable number of letters about matters that did not fall within the scope of EU law and were therefore not covered by the Charter (69% of approximately 4,000 letters). A first action point, thus, is to better inform citizens when they can rely on the Charter and where they have to turn to see their fundamental rights enforced. With its report, the Commission aspires to take a first step in that direction. Recommended reading, therefore.

Contact lenses are only the tip of the iceberg...

Although I’m quite short-sighted, I don’t wear contact lenses. Reason: I like myself in glasses. :) I tried contact lenses - they are very practical when swimming - but they simply don’t work for me on regular basis. However, I’m clearly aware that contact lenses make a critical difference to quality of life for millions of people everyday. For example one of my best friends "can’t live without them" – her words. :) To be more general, we are talking here about medical devices. That’s important problem and contact lenses are only the tip of the iceberg. What about a simple bandage or – more extreme - the most sophisticated life-supporting products or implants. No doubt the medical devices sector plays a crucial role in the diagnosis, prevention, monitoring and treatment of diseases and even saving the most precious – our life. EU Health and Consumer Commissioner John Dalli, and Hungary's Minister of State for Health Miklós Szócska, co-chaired this week a High Level Conference in Brussels on "Exploring innovative healthcare – the role of medical technology innovation and regulation". Main topics: improvements in the innovation process so that, safe, life-saving and life-enhancing medical equipment can be brought to Europe's patients and consumers as quickly as possible. Commissioner Dalli said "Europe's patients benefit from the latest in medical technology, but Europe is facing major public health, societal and demographic challenges and we need to respond with innovative solutions. Innovation is the oxygen of our economy and the answer to tomorrow's needs – it is imperative."

When you need Big Brother's help... on the right to consular protection and assistance

Shortly after the earthquake and tsunami hit Japan, I went to South Vietnam. As you can imagine, during my stay there I followed closely what was happening as a result of these national disasters. It was one of the main subjects of conversations with other travellers that I met there, too. One thing that kept on being mentioned was how people of different nationalities received various scope of help (or none at all) from the representatives of their governments during and after the crisis. For example, one of our fellow travellers had a flight back scheduled on Friday evening, the 18th of March, with Air France. However, she had received a message on Wednesday evening that her flight had been rescheduled to Thursday evening, the 17th of March, since as of Friday Air France was directing all their planes in the Asian region to Japan - to evacuate French citizens who wanted to come back to France in fear of nuclear radiation. At the same time, I heard from an Australian traveller, that their government had not made any such concessions to Australians living in Japan.

This situation clearly illustrates that in certain situations consumers who found themselves abroad might need help of their government but they will not always receive this help on the same rules and within the same scope. Interestingly, after the tragedy in Japan this has become a topic of conversation and discussions within the European Commission. On the 23rd of March EC released a press statement that EU is about to reinforce citizens' rights to consular protection and assistance in third countries (may be found here). Not many European citizens realize that when they are on holidays abroad in a country where their own Member State is not represented, they may ask for help and assistance representatives of ANY other Member State during emergencies and crisis (which could be important when you were e.g. in Libya, since only 8 Member States have their representatives there). This includes the right to ask to be evacuated as if they were citizens of that Member State. This protection is guaranteed by the EU Treaties (Articles 20(2)(c) and 23 of the Treaty on the Functioning of the European Union) and the EU Charter of Fundamental Rights (Art. 46) and should be granted not only in case of nation-wide crisis (like earthquakes in Japan, political unrest in Libya, etc.) but also in individual emergencies, e.g. when your passport gets stolen. When your lose your passport/money you may ask for some financial support, e.g. money for a flight back, which the assisting Member State will grant you upon authorisation of your home country, who then reimburses the assisting Member State and has a claim back towards you after you arrive safely at home.

The European Commission decided to take some coordination measures in the coming year to ensure day-to-day consular protection of all EU citizens and to increase awareness thereof among citizens (e.g. by giving such information while issuing new passports - ca 20 Member States are using this option at the moment). Moreover, a website had been launched on consular protection for EU citizens.

FAQ on consular protection - read more here.

No more hiding money while filing for a divorce? - new regulations on recognition and enforcement of decisions in mattters of matrimonial and patrimonial property regimes

One of the four pillars of the European Union is the freedom of movement within the European Community. Since its establishment and enforcement with every year more and more European citizens travel within the borders of the EU, get jobs in other Member States, settle there and often also get partners from other Member States (today there are ca 16 million international couples in the European Union). This has all been made easier by the harmonisation of European laws. Now the European Commission and Council take a closer look to what happens to these international partnerships/marriages when they end - either via divorce or death. More specifically, it has become clear that a lack of harmonized rules regarding the property rights of such international couples leads to long-time disputes, forum shopping (since often it's not clear a court of which country is empowered to give a ruling), and as a result: many costs to European citizens as well as institutions. 

The European Council proposes now two new regulations that would provide for clear rules for recognising and enforcing court judgements on a couple's property in all EU Member States through a single procedure. These simplified, unified rules are supposed to save per case (per couple) ca 2000-3000 Euro. They will enable married couple to choose the law that applies to their joint property. Registered partners will also get legal certainty since their assets would be subject to the laws of the country where the partnership was registered. Finally, clear rules would be set for choosing the court that is responsible for adjudicating the case.

Hopefully, this will contribute to European consumers being more secure in their property and financial rights and it will decrease the uncertainty and confusion at a time that is not easy to begin with since you are either getting divorced or burying your spouse...

Press release on this subject may be found here.

Questions and answers on problems relating to this subject may be found here.

Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes may be found here.

Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnership may be found here.

A hard nut to crack...

Long awaited MEPs decision was taken last Thursday (24 March). Generally speaking, MEPs backed the draft directive on consumers rights but with certain amendments. However, MEPs decided to postpone their final decision with a view to reaching and agreement with the Council. Anyway the Parliament endorsed IMCO's amendments, as well as a number of new compromise amendments supported by all political groups, to provide a mandate for negotiations with the Council on a new directive. So we are now waiting whether/how MEPs reach an agreement with the Member States.

More about voting and for a press release please click here.

If you are interested in substantial amendments, for the consolidated version of the new directive (for information purposes only) please click here.

Coming soon

As 23-24 March Parliament plenary meetings are approaching, the draft directive on consumer rights is a real hot potato for officials in Andreas Schwab' office (guiding the proposal through the Parliament) that they must deal with.

As was already said on this blog, in the works on the CRD no consensus was reached on what the consumer rights and a degree of harmonisation should be. The Socialists and Democrats (S&D) and Green groups both rejected Schwab's approach in the internal market committee on 1 February out of concern that it would reduce consumer rights in some areas. However, both groups have indicated that they might back the proposals if changes are made to the text. Moreover, the Member states want the new rules to limit harmonisation to online sales only.

The new CRD may at last win wide support from MEPs. Schwab (wisely) put off a plenary vote earlier this month so that he could ensure a broad majority for his report. Schwab is hopeful that an agreement on changes can be struck with the two groups before a debate is held on the proposal on Wednesday (23 March) and a vote is taken – according to the schedule – the day after. We are looking forward to …

OFT v Purely Creative: the English High Court on unfair commercial practices

Last month the English High Court handed down the first decision addressing the substance of the English implementation of the Unfair Commercial Practices Directive. The defendant, a company called Purely Creative, sent letters and scratch cards to a large number of addressees throughout the UK. While prizes could indeed be claimed, Purely Creative made money by charging consumers costs to win the prizes – costs that generally exceded the value of the prizes.

The High Court addresses the trade practices from different angles within the Consumer Protection from Unfair Trading Regulations, which implement the Unfair Commercial Practices Directive in the UK. Apart from examining the practices in the light of the general prohibitions of misleading trade practices and misleading omissions, the court also investigates whether the practices are in breach of paragraph 31 of the black list. This paragraph specifically addresses giving consumers the false impression that they have won a prize, while they have to incur costs to claim the prize (see the judgment for interesting interpretation issues on this provision). The result: the court finds many of the trade practices of Purely Creative unfair, both on the basis of the general prohibitions as on the basis of the black list.

Click here for the full judgment, available on the OFT website. Alternatively, click here for an exclusive chance to become a millionaire.

Overloaded...

I've been recently searching for some information on new campaigns and initiatives concerning consumers; both European and national but I was particularly interested in the Polish market. As it always is with researching, I accidentally found out plenty of websites, portals, databases etc. with informational sources, educational campaigns, tips what rights consumers have, tips what to do, how to behave. Finally I was really lost in multiple, chaotic communications. Not to mention that I felt extremely overloaded with information and simply tired. What made things worse, I found out that even more new initiatives, websites etc. are planed in a foreseeable future... Analyzing all these (of course not exclusively:) sources led me to the important conclusion. We constantly come up with new initiatives rather than master existing ones. We love creating new initiatives but when the dust settles we simply forgot about them. I wonder whether it is wise to start new websites and portals saying "all the same but with different words". Maybe it would be better to concentrate on (just) few. Sometimes fewer is better - I think. Such an undervalued and definitely not well enough (for sure in Poland) database is DOLCETA (http://www.dolceta.eu/). It is an ongoing online Consumer Education project involving 27 countries of the EU, financed by the European Commission. DOLCETA offers online modules which focus on different consumer topics. Very interesting and creative!

Delete cookies?! ... on changes in ePrivacy Directive

Recently I have mentioned on this blog one of the consequences of the revised ePrivacy Directive 2002/58/EC (revised by Directive 2009/136/EC of 25 November 2009), namely the requirement of the notification of the breach of privacy to internet users and authorities. Another important for consumers consequence of changes in this law concerns cookies.

I don't mean here chocolate cookies, but HTTP cookies - small pieces of information that are downloaded to your computer when you browse through internet that then may track the pages you visit, login information or other data and transfer them back to the cookies' creators. Doesn't sound like a cookie you would like to have, right? Well, as of 25th of May 2011, when the new law is supposed to be transposed to national laws, consumers should be able to (politely) refuse such HTTP cookies. And contrary to refusing acceptance of a regular, freshly-baked cookie, saying no to HTTP cookies should come easy to most of us. ... most of us. ;)

Member States are left with a problem of how to implement the new law in a way that it would not completely distort the practice of using European websites. It all sounds nice in theory - let's limit the possibility of businesses to store consumer data and to use them to track consumer preferences and then to target consumers with behavioural advertising. In order to do prevent such 'abuse', the consumers are to be informed every time their information is being stored in a cookie, what it is being used for and why, as well as how to remove the cookie. Does it mean that consumers will now be immune to having their data collected and stored, and the consumers' life will get this one step easier? No, most likely it will actually become more complicated and annoying, since what is foreseeable is a bunch of pop-up windows opening when you enter a new website, asking you whether you grant permission to let that site gather your data. Doesn't sound like something you would like to have to do with, still, right? *sigh* Let's see how these provisions will end up being implemented and what changes do we actually notice in our e-environment.

Recital 66 of the Directive 2009/136 mentions that:

"It is (...) of paramount importance that users be provided with clear and comprehensive information when engaging in any activity which could result in such [of information - JL] storage or gaining of access. The methods of providing information and offering the right to refuse should be as user-friendly as possible. Exceptions to the obligation to provide information and offer the right to refuse should be limited to those situations where the technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user. (...) The enforcement of these requirements should be made more effective by way of enhanced powers granted to the relevant national authorities."

New article 5(3) of the Directive 2002/58 says as a result:
"Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service."

International Women's Day - is there anything to celebrate? Musings on (lack of) equal pay.

Happy International Women's Day to all Women!

Unfortunately, for many of us this day cannot be greated with enthusiasm since while it is supposed to let us celebrate the power of women, we are all too aware that the position of women is still not as strong as men on the labor market. While consumers in the European Community are seen as weaker parties, in general, the position of female consumers is the weakest. Recent research had shown that women in the EU still earn significantly less (17.5% on average) than men. Vivianne Reding noticed that this means that women would have to work two months more in a year to earn as much as men do. Who needs holidays, right?

The scary fact is that in the past 15 years this gap had not been closing at all. This means that while we all realize that women are being discriminated against in the labor market, there is not much being done to prevent it - aside it being a subject of many politician's speeches and debates. And again, the European Commission wants to initiate a series of public-awareness campaigns to address this problem. Why not actually take some legislative/administrative measures to prevent this discrimination, though? Haven't we talked about it enough already? I think on this day, more than ever, certain specific steps should be taken and not just more empty promises be given. Let's talk about revision of the EU Directive on equal pay, for example, since obviously it has failed to achieve its aim. Let's talk about introducing quotas for women on higher administrative/business positions both in public and private sector. It's a bit ironic if the European Commission starts demanding this measures, though, taking into account that only 9 out of 27 European Commissioners are women...

Discussion of the report may be found here. To find more on the 5th of March as the first European Equal Pay Day - go here. Press release of the EC - go here. Gender pay gap campaign - more information may be found here.

ECJ under scrutiny

European Court of Justice released statistical data on its judicial activity in 2010. It brings good news to consumers since it shows that references for a preliminary ruling have never been dealt with so quickly as in the previous year. This means that consumers had to wait shorter for an answer of the European Court of Justice whether the national law applicable in their cases could be seen as compatible with European law.

On the other hand, last year the ECJ received more cases per year than ever before (1406 cases brought in 2010, 631 new cases, 385 references for preliminary ruling). This means that while the proceedings in front of the ECJ are being shortened (average duration: 16,1 months), at the same time more and more national proceedings are being prolonged by being referred to the ECJ. That's not good news for consumers, at all.

Moreover, the ECJ had completed 574 cases in 2010 which is slightly less than in 2009 (588 cases). That is not at all surprising to me, taking into account that whenever I access the ECJ's website recently it seems that the ECJ is not proceeding in that week... Maybe someone should look into national holiday agenda for the ECJ and adjust it to Dutch rather than e.g. Polish standards...

Press release may be found here.

For information purposes only

As previously mentioned on this blog (Who needs courts? EC: let's settle consumer disputes out of them), the European Commission pays more attention nowadays to finding out what options of redress consumers have. As we all, as consumers, know, at the moment these options differ from country to country and both: collective redress and alternative dispute resolution is still seen as something controversial and risky. Hopefully, the public consultation that is to be finalized mid March will result in creating a coherent, European system of ADRs. Until that time, it might be handy to know that on EC website you can check what is the state of play on consumer redress (ADR, court proceedings for small claims, injunctions, compensatory collective redress) in various Member States. DG SANCO prepared fiches on each and every Member State and fortunately they have been made public since it makes it easier to compare various legal systems and spot differences in consumer protection. You may find this overview here.