Congratulations to Dr. Luzak!

This morning, Joasia Luzak, founder of this blog and my colleague at the Centre for the Study of European Contract Law (CSECL), convincingly, successfully and with élan defended her PhD thesis on 'The implied duty of a service provider to warn about a risk of construction defects resulting from a contract with a third party, with emphasis on defects resulting from design failures'. In her analysis, she made a comparison of the rules that have been developed in English, German and Dutch case law on precontractual and contractual duties to warn. She then compared the relevant rules in the Draft Common Frame of Reference to these. A short summary of the research (in Dutch) can be found here. We will of course keep you posted on the publication of the book.

Congratulations, Joasia!

Cross border prescriptions

Time of winter holidays is coming soon. Have you ever wondered what happens if you want to buy your medicines when you have flu skiing... Commission decided: it is time to know what you think. Thus consultation on "Measures for Improving the recognition of prescriptions issued in another Member State" is in full swing.

Consultation period started on 28 October 2011 and Commission would like to end it by 8 January 2012. As all patients and health professionals prescribing medicinal products or medical devices belong to target groups, everybody may take part (online questionnaire).

It all started with the Directive 2011/24 which requires that the Commission adopts the measures enabling a health professional to verify the authenticity of the prescription and whether the prescription was issued in another Member State by a member of a regulated health profession who is legally entitled to do so (in other words something like “standard format”). What is worth mentioning, prescriptions would include e.g. elements to enable contact between the prescribing party and the dispensing party in order to understand the treatment.

Stakeholder input will feed into the impact assessment as announced on the European Commission's impact assessment webpage

The unanswered question(s) of ius commune

Yesterday and today, four of the authors of this blog attended the annual conference of the Ius Commune Research School (a cooperation of the law schools of Maastricht, Leuven, Utrecht and Amsterdam, with branches in Edinburgh and Stellenbosch, and some individual members in other universities and legal practice). This year, the event took place in Utrecht and addressed a broad range of questions regarding both private and public law aspects of the possibility of a European ius commune. Here are some impressions...

The key note speeches were given by Katharina Boele-Woelki (Utrecht), Jan Wouters (Leuven) and Martijn Hesselink (Amsterdam):

Boele-Woelki spoke about the different existing and possible future legal regimes concerning property relations between spouses in Europe. She addressed the European Commission's proposals in this field (on these proposals, see also an earlier post on this blog) and commented on the possible ways forward: bilateral agreements, harmonisation (for instance according to the suggestions of the Commission on European Family Law, which reduce the number of regimes to 2 as opposed to the currently existing 5), unification, or the introduction of an optional regime.

Wouters looked into the relations between private law, the EU and global governance. Taking the examples of food safety standards, forest certification (e.g. taking action against the illegal harvesting of timber) and credit default swaps, he argued that the EU legislature can sometimes use standards developed by private bodies to pursue a certain public policy or 'common good' (e.g. the protection of public health or forests in the first two examples), while at other times it will replace these kinds of rules with mandatory legislation in order to serve certain public policy goals (e.g. market integrity in the third example).

Hesselink reflected on the question of how many systems of private law there are in Europe. He focused on the normative dimension of this dilemma, starting from the value of a 'sense of belonging' to a system. At this point, he distinguished between five views: nationalism, Europeanism, cosmopolitanism, dualism (meaning 'normative agnosticism'), and pluralism. He then went on to consider which of these (not mutually exclusive) loyalties could be the right one, and whether it would be possible to determine a hierarchy of values on the basis of them. In his view, the most plausible model for the current state of European contract law would be one of 'Europeanism as post-nationalism and proto-cosmopolitanism' (the latter term being based on the work of Habermas, in particular his new book on Europe's Constitution). Still, other values (especially justice) in Hesselink's view may trump Europeanism and system thinking, which means for instance that (on a less abstract level) an optional Common European Sales Law (CESL) may be a welcome instrument, but should not be pursued at any price.

In the smaller workshops, a wide range of more specific questions related to the idea of a 'ius commune' were discussed. I attended the workshops on 'contract law' and 'constitutional processes'. The first one focused on the merits of the proposed CESL (including the historical background to some rules, the expected usefulness of the remedies in case of non-performance, rules on digital content, and the pros and cons of optional regimes in private law) and considered the likely (economic) effects of the recently adopted Consumer Rights Directive. The workshop on 'constitutional processes' presented some of the research done within the scope of the 'European national and constitutional law' research project (Eunacon) led by Monica Claes, e.g. regarding the foundation of the EU on an 'uncommon principle' of federalism, and the impact of judicial networks (such as international associations of courts) on the development of law and its consequences for the conceptualisation of the constitutional order. Furthermore, attention was paid to the need for and possibility of establishing a constitutional ius commune, taking into account both institutional and substantive aspects of the theme. As Leonard Besselink, who chaired the second part of the workshop, remarked, the fact that this difficult query could not be easily solved did not diminish the beauty one could find in the unanswered question (a proposito, the beauty of the system was one of the values that Martijn Hesselink would refer to in his speech as well). Therefore, what could be a more appropriate ending to this post than a link to the piece Besselink based his observation on? Here it is.

Towards a European legal culture

The European Law Institute that was inaugurated in June (with a conference on which we posted earlier) has now officially opened its office in Vienna. Commissioner Reding was present at the first working meeting, dedicated to the proposal for a Common European Sales Law, and observed that:

'The European Law Institute will help build a European legal culture. More consistency between Europe's different legal systems will help strengthen mutual trust and our citizens' confidence in the EU's legal system, strengthening confidence in the European rule of law, which is the cement binding the European Union together. It will make the European area of justice concrete and real so that people can exercise their rights and take advantage of the Single Market's opportunities. The Institute will also bring added value to research on how EU law is implemented across the Union. It will engage in projects that will have concrete results for the daily lives of European citizens and legal practitioners.'

As regards European legal culture, the Oxford conference that I referred to in last Friday's post is now being advertised on the website of the Institute of European and Comparative Law.

Lindner - Brussels I and the consumer that went AWOL

Today, the Court of Justice of the EU (CJEU) gave its judgment in Lindner. The facts of the case can be found in an earlier post on this blog. Basically, the questions put to the Court all come back to one point: does the consumer protection provision laid down in Article 16 of Regulation 44/2001 on jurisdiction (the Brussels I Regulation) also apply to consumers who left their last domicile without giving notice of a change of address? Or, in other words, does Article 16 of the Regulation apply to consumers who have gone AWOL?

The Court answers with an unequivocal 'yes'. It states at para. 55 of the judgment:

'in a situation such as that in the main proceedings, in which a consumer who is a party to a long-term mortgage loan contract, which includes the obligation to inform the other party to the contract of any change of address, renounces his domicile before proceedings against him for breach of his contractual obligations are brought, the courts of the Member State in which the consumer had his last known domicile have jurisdiction, pursuant to Article 16(2) of that regulation, to deal with proceedings in the case where they have been unable to determine, pursuant to Article 59 of that regulation, the defendant’s current domicile and also have no firm evidence allowing them to conclude that the defendant is in fact domiciled outside the European Union'.

Therefore, the allocation of jurisdiction to the courts of the Member State in which the consumer has his domicile - guaranteed by Article 16 in order to protect consumers from costly, far-away proceedings in the professional party's court of choice - is also valid in situations where we only know the consumer's last domicile. It is noteworthy, however, that in this case the persuasive arguments are not based on consumer protection. Rather, the CJEU refers to wider objectives of the Regulation which apply to the consumer and his counterparty alike:

• 'strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued' (at para. 44);
• avoiding a situation 'in which the fact that it is not possible to identify the current domicile of the defendant precludes determination of the court having jurisdiction, thereby depriving the applicant of his right to bring proceedings' (para. 45);
• and: 'the criterion of the consumer’s last known domicile ensures a fair balance between the rights of the applicant and those of the defendant precisely in a case such as that in the main proceedings, in which the defendant was under an obligation to inform the other party to the contract of any change of address occurring after the long-term mortgage loan contract had been signed' (para. 46).

So far, the Court stays within the logic and system of the Regulation (to which it refers in para. 43). The cherry on the pie, however, is in the final paragraphs of the judgment, where the Court considers the requirements to be complied with in the subsequent proceedings, referring to the Charter of Fundamental Rights of the EU. It had been pointed to the Charter by several Member States (see the Opinion of the AG). Referring explicitly to Article 47 of the Charter, the Court emphasizes that 'proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence are observed (see Case 125/79 Denilauler [1980] ECR 1553, paragraph 13, and Case C‑394/07 Gambazzi [2009] ECR I‑2563, paragraph 23)' (para. 48-49). Fundamental rights, such as respect for the rights of the defence, however, do not constitute unfettered prerogatives and may be subject to restrictions (Gambazzi, para. 29). Applied to the case at hand, the Court states:

'52. As regards the requirement relating to the need to avoid a disproportionate interference with the rights of the defence, it must be pointed out that this applies in particular for the interpretation of Article 26(2) of Regulation No 44/2001. That provision must be understood as meaning that a court having jurisdiction pursuant to that regulation may reasonably continue proceedings, in the case where it has not been established that the defendant has been enabled to receive the document instituting the proceedings, only if all necessary steps have been taken to ensure that the defendant can defend his interests. To that end, the court seised of the matter must be satisfied that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant.

53. It is true that, even if those conditions are satisfied, the possibility of taking further steps in the proceedings without the defendant’s knowledge by means, as in the case in the main proceedings, of notification of the action served on a guardian ad litem appointed by the court seised constitutes a restriction of the defendant’s rights of defence. That restriction is, however, justified in the light of an applicant’s right to effective protection, given that, in the absence of such proceedings, that right would be meaningless.'

The application and interpretation of the Charter in this context gives some insight into the role that fundamental rights play in the EU legal order. It is however not immediately obvious what the 'rights of defence' include, even after the Court's decision. One may for instance still argue about the outcome - the AG, after all, considered that the appointment of a guardian without the consumer's knowledge and consent is not enough to assume submission to the jurisdiction of the court under Article 24 of the Regulation. The Court seems to attach greater emphasis to the need for someone to be there and represent the consumer, even in the consumer's absence.

Reporting on digital content contracts

Yesterday, together with three colleagues, I attended a conference on 'Consumer legislation for digital products' that was organised by DG Justice in Brussels. At this conference we presented the results of a study on the topic that we carried out on request of the European Commission. This study was a joint project of the Centre for the Study of European Contract Law (CSECL) and the Institute for Information Law (IViR) and concerned the legal framework for digital products, such as films, music, e-mail, social networking and e-books. Empirical data on problems that consumers encounter when buying and using these types of digital content were provided by Europe Economics, whose report is also available on the Commission's website.

As indicated by the Commission, 'the studies will feed into the Commission’s ongoing work aimed to ensure a stepped up enforcement of the existing legislation also to purchases of digital content and to assess the need for further possible adaptation of EU consumer legislation to changing markets'. In this field, the recently adopted Consumer Rights Directive and the proposal for an optional Common European Sales Law are of importance.

Only constructive criticism expected... on Common European Sales Law conference

Last week, together with two of my colleagues, I attended a "Conference on European Contract Law - unlocking the internal market for growth" in Warsaw, Poland. The theme of the conference was focused on the new proposal for a Regulation of the Common European Sales Law. You could read previously on this blog about Commissioner Reding's speech given during this conference (Reding on Common European Sales Law), but I wanted shortly to share my observations and most important remarks that were made during these two days.

I have to admit that I have mixed feelings as to this conference, since it tried to be for everyone (academics, practitioners, consumer organizations' representatives, business organizations' representatives, politicians) and therefore at times was for no one (or just a few chosen ones). Due to the large amount of invited speakers their time to talk was limited to ca 10min, which meant that often the questions posed during the discussion were longer than the presentations (!). However, despite the time issues, full schedule and very general remarks made by some, there were many important issues raised by the speakers and by their audience. It's good to have a venue to talk about these issues, even if barely ever a satisfactory solution was mentioned.

I think for readers of this blog mostly the presentations given by the members of the European institutions would be relevant, since they talked about reasons behind the current proposal for the CESL, as well as its future development. And so, Dirk Staudenmayer, representative of the European Commission, assured that the goal during drafting of the CESL was to create a very comprehensible, easily accessible instrument. That need to make the CESL easily accessible influenced the scope thereof (i.e. basically limitation to regulation of sales contracts). He called the structure of the CESL an added value to already existing European regulations, since the CESL's provisions follow the life cycle of the contract (from formation to prescription). That pragmatic approach is visible also in the structure: there is no general and specific part division which allows the readers to avoid having to shuffle back and forth through the regulation. The terminology of the CESL was also made more concrete; general terms (e.g. reasonableness) were deleted as much as possible. The CESL was drafted in a way to assure high level of consumer protection (apparently no one of the national consumer lawyers consulted accused the CESL of providing lower level of consumer protection than in their current national legislations) as well as to protect interests of the businesses. The scope of the CESL protects SMEs, since the European Commission found problems with actions undertaken by SMEs in the common market and wanted to eliminate these problems. Large businesses are excluded from the scope of the CESL, since there were no such problems found with relation to them. Of course, Member States are welcomed to broaden the scope of the application of the CESL to cover large businesses, as well. Additionally, large businesses may choose to use the CESL regulation by adopting their standard contract terms in accordance therewith. The scope of the CESL was extended to cover digital problems, since it's a fast-growing, important for consumers market and these transactions have also been regulated by the Consumer Rights Directive. 

The main problems that had been mentioned as far as the regulation of the CESL is concerned is the lack of any provisions e.g. on legal capacity, agency, national prohibitions. What if the parties to a cross-border contract choose to regulate it by the provisions of the CESL, and one of these parties is 15 years old. The CESL does not determine whether a 15 year old would have a legal capacity to conclude a contract. Laws of which country would then be applicable to determine that?

Another problem that had been mentioned many times was the problem with the legal basis for adopting the CESL in its current scope as a regulation. The legal basis currently given by the European institutions is Article 114 of the Treaty while the academics claim that it should have been Article 352 of the Treaty. The latter one has not been chosen by the European Parliament, as Diana Wallis explained, since it would have excluded it from active participation on the scope and adoption of the CESL. This explanation, while sufficient on a political level, leaves a lot to be required from the legal/ academic perspective.

Diana Wallis reminded everyone about the vote that had already taken place in the European Parliament on the Optional Instrument, in which the European Parliament with clear majority expressed its support for the adoption of the OI. She mentioned that the works on the CESL are especially important in the current financial crisis, as the CESL is perceived as one key to solving financial crisis (by helping to unlock internal market's potential for growth).

Another member of the European Parliament, Klaus-Heiner Lehne, sees the Optional Instrument as a new method to try and develop new ways of harmonisation of the European law. According to him, minimum harmonisation doesn't work and the idea of introducing full harmonisation in the Consumer Rights Directive had failed, as well, due to many exceptions thereof and a limited scope of that directive. In his opinion if we adopt the CESL we will acknowledge that the full harmonisation in Europe will never be achieved. After all, the CESL allows the Member States to shape their national laws as they see fit (with exceptions introduced by e.g. European consumer legislation). However, cross-border transactions are a different matter and that is what the European rules should and would regulate fully. This also means that the CESL is a clear example of how subsidiarity rule works in Europe. 

As far as the idea of using the CESL as a toolbox was discussed, Mr Lehne mentioned that we already have that in the DCFR, so there is no need to treat the CESL as a toolbox. Toolbox, after all, does not need to have a binding force, parties may decide whether to choose to use it and how to use it.

Additionally, it was mentioned that there would be a database created of national case law that will be issued on the interpretation of the CESL, after its adoption. This, hopefully, will allow the judges to interpret the general terms used in the CESL in a similar way. However, the past experience with the CLAB database (that was supposed to lead to a uniform interpretation of the 'unfairness' concept in consumer contracts) showed us that such expectations can be way premature.

I think these are the most important remarks that had been made that might be important to you, readers. At the end of the conference, Mr Lehne warned that as of now people who oppose the idea of the Optional Instrument on principle are excluded from further consultations on the CESL. They expect only constructive criticism at this stage. Too much money and time have been put into this project not to achieve some result now...

Improper implementation of the Services Directive

While the European institutions are busy preparing new sales' regulations (Consumer Rights Directive and Common European Sales Law), services seemed to be a bit forgotten. This is surprising taking into account that consumers conclude many contracts for provisions of services in various areas of their lives. The Services Directive, which harmonizes these contracts to a certain extent, was adopted on 12 December 2006 and binds in all Member States at the latest as of the beginning of 2010. Or at least, it was supposed to...

Two weeks ago the European Commission referred three Member States (Austria, Germany and Greece) to the CJEU for only partial transposition of the Directive (Services Directive: the Commission refers Germany, Austria and Greece to the Court over incomplete transposition of the Directive). The Directive required EU countries to remove unjustified or disproportionate legal and administrative barriers to the setting up of businesses and the provision of cross-border services in the EU. Another goal thereof is to get rid of unwarranted barriers affecting service recipients (both consumers and businesses) wanting to make use of services from other Member States. All in all, it's supposed to facilitate cross-border provision of services to consumers and businesses, alike. What have the three Member States missed to implement?

"Austria has yet to pass any horizontal transposition laws while in Germany three measures have still to be adopted (one at federal level and two at regional level). In Greece a whole series of measures has yet to be adopted, especially in economically important sectors such as tourism and personal and business services. A law on private employment agencies and a law on estate agents and sales representatives, for example, have still to be adopted."

It's good to know that the poor uncle (that's how European regulation of the provision of services could be perceived in comparison to the regulation of sales contracts) gets any attention from the European institutions, at all.

ICT Tourism Business Platform

Since the Internet became more popular, travel information search and booking has been one of the top five most popular consumers' tasks online. Consumers book flights, hotels and whole package trips online. And even if they decide to make a travel reservation via phone or in person, they often first double check all information on their trip destination as well as hotels, travel companies online. This means that the tourism sector becomes more and more tailor-made to the particular consumer, rather than remaining mass service. It seems that these tailor-made services are often delivered by SMEs instead of big companies, but big companies have an advantage over SMEs of having developed more e-commerce applications and platforms. In order to help SMEs to compete on this market, the European Commission plans to create an ICT and tourism platform (functional by the end of 2012). Such a platform would help SMEs to interconnect via big distribution networks with all important market players and therefore, it would enable their participation in the digital value chain. More on this may be found here.

European (legal) culture & consumers

The best part of my working day today consisted of reading a part of a thesis manuscript dedicated to the cultural dimension of national resistance against the 'Europeanisation of private law'. Having come to the end of the chapter, it seemed interesting to look at possible references to 'legal culture' in the recent proposal for a Common European Sales Law. So here is what I found..

Recital (1) of the proposed Regulation states:
'(...) From the range of obstacles to cross-border trade including tax regulations, administrative requirements, difficulties in delivery, language and culture, traders consider the difficulty in finding out the provisions of a foreign contract law among the top barriers in business-to-consumer transactions and in business-to-business transactions. (...)' (emphasis added)

And the conclusions of the Communication accompanying the proposal say:
'It is also an innovative approach because, in line with the principle of proportionality, it preserves Member States’ legal traditions and cultures whilst giving the choice to businesses to use it.'

It shows that the current initiatives in the field of European contract law steer clear, as far as possible, from interference with the legal traditions and cultures of the Member States. This is confirmed by the fact that the proposed CESL does not include any provisions on topics that generally engage (culturally determined) values, in particular the morality of contracts. It differs in this respect from previous academic proposals for comprehensive sets of contract law rules, such as the PECL and DCFR.

Does this mean that the CESL should be considered not to touch upon any questions of legal culture? Interestingly, in a speech that Commissioner Viviane Reding gave in Leuven in June of this year (on which we posted earlier) she remarked that:
'In the long run, the optional instrument on European Contract Law needs to become embedded in a European legal culture where lawyers, judges and academics progressively develop a joint understanding of the principles of private law as they are common to the legal systems of our Member States and of the evolving acquis communautaire.'

But what then is meant by a 'European legal culture'? In this context, more food for thought can be found in a recent article by Jürgen Habermas on 'Europe's post-democratic era', in which he submits that:
'A Europe-wide civic solidarity cannot emerge if social inequalities between the member states become permanent structural features along the fault lines separating poor from rich nations. The union must guarantee what the constitution of the German Federal Republic calls the "uniformity of living standards". This "uniformity" refers only to a range of variation in social living conditions that is still acceptable from the perspective of distributive justice, not to the levelling of cultural differences.' (emphasis added)

To be continued...

And as a final note here: European legal culture will be the theme of a conference that is being organised in Oxford mid December (more information will follow on this blog), which promises an interesting discussion and - talking about culture & consumers - presents an excellent opportunity to go and see Leonardo in London.

Clive on (Warsaw conference on) Common European Sales Law

Eric Clive's summary and first impressions on the Warsaw conference on European contract law can now be found on the European Private Law News blog. The first reactions from stakeholders (consumer and businesses organisation) and academics seem to be generally favourable and constructive towards the proposal on a Common European Sales Law.

Reding on Common European Sales Law

The text of Commissioner Reding's speech at the currently ongoing conference on the future of European Contract Law, organised by the Polish presidency, is now available on the website of the European Commission. Reding emphasises the potential role of the recently proposed Regulation on a Common European Sales Law:

'The optional Common European Sales Law will provide companies with an easy and cheap way to expand their business to new markets. It will bring more choice, security and a better deal to consumers. In the Commission's analysis, it's a win-win situation: for businesses and consumers who want to take advantage of our Single Market. Europe needs to develop and exploit such win-win situations. Because we have no time to lose in our fight for stability, growth and competitiveness of this marvellous continent. Some say in these days that Europe is in danger. I do not share this negative view. I believe Europe is full of opportunities and of potential that we just need to unlock with determination. And the optional Common Sales Law is one of these opportunities.'

Some first-hand news on the conference proceedings will probably follow next week when Joasia, who is attending the conference, will be back from Warsaw. Furthermore, Eric Clive promised to post on the conference on the Edinburgh European Private Law blog.

2020 vision on health and consumers

Today, the European Commission presented its proposals for its new Health and Consumer Programmes for the period 2014-2020. Commissioner Dalli observed that '[t]hese two programmes are about people; about fostering the conditions for people to live to their full potential and play a key role in society and in the economy. Keeping people healthy and active for longer is good for people and is good for jobs and growth. Confident, empowered consumers create thriving markets. I am confident the two programmes will make a significant contribution to achieving Europe 2020 goals – to create smart, sustainable and inclusive growth by the end of this decade'.

The proposed Consumer Programme aims at improving possibilities for consumers to actively take part in the internal market, in particular by:

- enhancing product safety through effective market surveillance;
- improving consumers' information, education and awareness of their rights;
- consolidating consumer rights and strengthening effective redress, especially through alternative dispute resolution;
- strengthening enforcement of rights cross-border.

In relation to these points, the Commission indicates that it intends to enhance consumer awareness of available rights under EU law, for instance through giving more publicity to the work of the ECC-net (network of European Consumer Centres).

Online music in Europe

This short video outlines problems that European regulators face with regard to creating a single market for transactions concerning online music. Illegal downloading, problems with online licensing, databases and copyrights are all mentioned.

Write as if you were writing it for your Grandma - tips on simplifying legal language.

In a recent talk "The right to understand" for TED Sandra Fisher-Martins, translator and language-activist, made some interesting remarks about the complexity of language used in documents (legal, medical etc.) and how we could simplify it (btw, she also gives astounding statistics on literacy rates in Portugal). She argues for a civic movement, consumers becoming more demanding as to what is not only their daily need, but also a civic right: the right to understand.

"Next time you're handed a document you don't get, demand to understand. Put pride to one side for a bit and ask until it's all clear."

She also argues for drafters of these documents to write them in a way that general public would understand and not only the drafters themselves. After all, as Einstein once mentioned:

"If you can't explain it simply, you don't understand it well enough".

So how do you simplify the language? She advises to write the documents as if you were writing it for your grandmother, without patronizing her and with respect. You use three techniques to do it:

"First of all, you start with what's most important. Grandma is busy. She's not going to read three full pages just to get to the main idea. (...) Second, use short sentences. Because Grandma. like any of us, if the sentences are too long, by the time she gets to the end, she won't remember the beginning. Finally, the third: use simple words - those that Grandma already knows."

Opt-out tools from targeted online advertising: it's just an illusion putting me back in all this confusion...

A recent study on online behavioral advertising (Why Johnny Can't Opt Out) conducted by researchers at Carnegie-Mellon University showed that consumers are having serious troubles to use opt-out tools that advertising companies provide to them in order to enable consumers to opt out of receiving ads targeted based on their Web-surfing behavior. Some consumers that were tested couldn't find the opt-out page without additional instruction received from the test moderator. Some consumers got confused and thought that they would need to pay for using the opt-out tools. Consumers who managed to find opt-out tools, often managed to opt-out only from one type of ads instead of from all of them. Additionally, there were complaints made that the opting-out process took a long time (ca. 45 minute for some). The test results show that the self-regulatory measures that advertising companies implemented at the moment in the US to enable consumers to stop targeted advertising are less than satisfactorily efficient. This data should be interesting to European legislators who struggle at the moment with the implementation of the ePrivacy Directive. (see e.g. Cookies going stale)

(see: Consumers Don't Understand Opt-Out Tools)