Calling for better air passengers' rights

The European Parliament was discussing today certain issues concerning air travel. The Transport and Tourism Committee voted on a new resolution on air passengers' rights (Air travel: Transport Committee calls for a fair deal for all passengers). The resolution calls on the European Commission to clarify air passengers' rights, ensure uniform application of the appropriate provisions, as well as to improve the enforcement thereof with regard to airlines that breach these provisions. 

The members of the EP are convinced that air carriers should provide a contact personnel at each airport, who would be able to take immediate decisions on assistance, reimbursement, rerouting and rebooking in the even of flight disruption. Moreover, each carrier should have a central information point, a website, as well as a low-cost phone number and email address that would be open to accept consumers' complaints.

The price of a flight ticket that is advertised online should include all charges (otherwise, it should be considered to constitute an unfair commercial practice). Passengers should have an option to withdraw from an online booking within 2 hours of booking. They should also have an option to correct minor booking errors.

National sanctions with respect to air carriers that breach EU rules should be made more effective. European Commission could also draw up and publish airline performance records, based on the annual number of complaints. Moreover, the passenger's complaint should not be processed for more than 2 months by an airline and 2 months by an enforcement agency.

The extraordinary circumstances under which the compensation does not need to be paid by the airlines should be clarified (including rulings of the ECJ on the subject).

In other news, the Civil Liberties Committee debated today on data protection of EU air passengers who travel to the US (MEPs divided over transfer of EU air passengers' data to the US). The passenger data agreement with the US will be voted on the 26th of March. At this point, the members of the EP are divided as to their assessment of it. There are doubts whether sufficient balance was reached between security issues and passengers' data protection. Another issue that was being discussed was the proposal for the EU Passenger Name Records, i.e., a proposal to collect and store passengers' data for international flights arriving in and departing from the EU.

More affordable roaming?

To continue with the previous post, the Industry Committee decided today that as of June 2012 retails clients should be able to buy roaming services from suppliers other than their home service suppliers (Industry committee sets out to lower mobile roaming rates). This means that a consumer could keep his phone number and his service provider for domestic use of his phone, and choose another operator only for foreign calls. If the proposal for this regulation is upheld, that would lead to more competition among roaming service suppliers and possibly lowering of prices for these services. Another proposal is to lower roaming price caps for calls and SMS texts, as well as to cap retail data roaming charges (the currently binding cap expires in June 2012).

Enhanced European communication network by 2020

Neelie Kroes, Vice-President of the European Commission who is responsible for the Digital Agenda, gave a speech yesterday in Barcelona with a few promises concerning further development of European communication network (speech text may be found here). She intends to make sure that every European has at least 30 Megabit coverage by 2020 (4G technology may come in handy here) and at least half of them have ultra-fast access at over 100 Megabits. To achieve this aim she intends to support development of many new technologies, that if combined could lead to to European consumers getting used to obtaining better services and higher speeds (e.g. Fibre-to-the-Home, upgraded Cable, Fibre-to-the-Cabinet, LTE).

"European consumers will get used to obtaining better services and higher speeds, which will trigger new bandwidth-hungry applications and services, creating in turn the conditions for financing the competitive networks, wired and wireless, fixed and mobile, of 2020."

To encourage that development the European Commission has already released the digital dividend 800 Megahertz band for wireless broadband, which should be authorized by the Member States to be used by 1 January 2013 (six MS have already completed this process). New plans encompass finding and releasing more of wireless broadband by 2015 for e.g. radio programmes.

Finally, the EC encourages more competitive and sound policies regarding mobile phones use by consumers. From 2002 to 2010, mobile prices dropped 50% or more, but the aim is to lower these prices even more. Roaming regulations need to be adopted, as well, so that consumers may get the most value from the use of their smartphones also when travelling abroad.

Naughty Member States

Once again European Commission needs to closely monitor Member States in order to enforce proper consumer protection.

Slovakia was called to ensure proper implementation of the Directive 2009/22/EC on injunctions for the protection of consumers' interests. Based on the provisions of this Directive Member States need to enable consumer associations and organizations to ask for an injunction against a commercial operator to immediately cease its activities which go against certain consumer interests (e.g. misleading advertising). In Slovakia, this is not possible in the area of services as well as timeshare contracts, which goes against the provisions of the Directive (Consumers: Commission calls on Slovakia to ensure full protection of consumers' interests).

Luxembourg needs to adjust their laws as far as awarding study grants, financial aid for volunteers and other allowances is concerned. Currently many of these benefits are only accessible to residents of Luxembourg which discriminates against migrant workers and infringes the principle of freedom of movement of workers. (Free movement of workers: Commission asks Luxembourg to end discrimination in access to study grants and allowances)

The production of wine and its strict regulation has previously been mentioned on this blog. Recently, the issue that many wines that we are drinking are not actually made-of-grapes-wines has been raised on the news. In France, for example, the by-products of winemaking are used in the production of wine spirits and wine distillates and these spirits are later on marketed as "eaux-de-vie de vin" or "distillats de vin". The European Commission, correctly in my opinion, aims at banning such marketing as an infringement of provisions of the Regulation No 110/2008 on spirit drinks. The fact that French winemakers were able to use by-products of winemaking (which are cheap) to produce spirit drinks, while in other Member States actual wine needed to be produced, created a competitive disadvantage for winemakers across Europe. Therefore, French law needs to be amended in this regard. (Agriculture: Commission asks France to comply with European rules on marketing wine spirits and wine distillates) One could also consider that these marketing names are potentially confusing and misleading to consumers. The French names refer to wine, after all, although the raw materials used for production of these spirits are actually only by-products of winemaking.

Finally, Austria, Cyprus and Greece were asked to adjust their legislation in order to properly implement the Blue Card Directive, which should have been transposed by 19 June 2011. Pursuant to the provisions of this Directive, highly skilled people from outside Europe are easier enabled to come and work in Europe, filling gaps that cannot be filled by EU nationals. It establishes a fast-track admission procedure for these foreigners and ensures a common set of social and economic rights, such as equal treatment with nationals as regards working conditions and pay, as well as access to goods and services. ('Blue Card': Commission warns Member States over red tape facing highly qualified migrants)

How to switch bank accounts remains a mystery

Last week a consumer market study was published on consumers' experiences with bank account switching (Consumer Market Study on the consumers' experiences with bank account switching with reference to the Common Principles on Bank Account Switching). Already in 2007 the European Commission discovered that banks don't enable consumers to easily move their accounts if they choose to do so and urged the Banking Industry Committee (EBIC) to remove existing barrierts to customer mobility. As a result, the EBIC esatblished a self regulatory initiative which was intended to bring clarity to consumers. Therefore, as of November 2009 it was supposed to be easier for consumers to change their bank account from a current bank to another bank (Changing your bank). In general, the consumers were only supposed to make a request to a new bank who would then, in theory, help the consumer through the switching process, transfer all standing orders and direct debits to the new bank etc. Unfortunately, the new study showed that this clarity was not achieved.

Only 19% of mystery shoppers were able to successfully open a bank account with a new bank and switch a standing order based on the process described in the new self-regulatory guidelines. Shoppers claimed that 71% of banks did not assist in the transfer, which meant that they did not follow self-regulatory guidelines, 7% took more than 14 working days to open an account or switch an order. The study also showed that bank staff was not always aware of switching accounts' procedures and that the level of information that consumers could receive about this varied significantly (14% consumers received no information at all).

EU Internal Market Commissioner Michel Barnier said "The results of the study published today explain why consumers change their banks so rarely. If consumers are not able to easily switch bank accounts, they cannot take advantage of better and cheaper banking services on offer elsewhere. The single market is thus deprived of the competitive drive that leads to innovation, cost savings and better quality banking services. This, in the long-run, can prove to be an obstacle to growth". (Consumers: Switching bank accounts - 8 out of 10 mystery shoppers faced difficulties)



50 years of consumer rights

On 15 March 1962, President John F. Kennedy read his famous 'Special Message on Protecting Consumer Interest' to the American Congress. The 50 year anniversary of this event will, among other things, be celebrated with a conference in Utrecht on 'world consumer day', 15 March 2012.

2012 also marks the 50th birthday of the European consumer organisation BEUC. An overview of BEUC's achievements over the years can be found on the special website dedicated to this anniversary. BEUC announces that it will present its 2020 consumer strategy in May of this year. 

Furthermore, BEUC's anniversary website draws attention to a particular consumer issue every month - February's 'topic of the month' is, indeed very topically, data protection.

Small world (II) - EU conference on data protection

In the context of the European Commission's plans for reforming the legal framework on data protection (on which we posted earlier), an EU-US conference is organised on 19 March 2012. More information can be found on the website of DG Justice, which states:

'The European Union recognises the protection of personal data as fundamental right; and the EU Treaties oblige the EU legislator to lay down a comprehensive set of rules. The EU is currently reviewing its legal framework on data protection; and this conference will contribute to reinforcing transatlantic dialogue at a time of concurrent policy and legislative initiatives in the EU and US. It will provide a forum for US and EU stakeholders from public and private sectors to obtain comprehensive, accurate and up-to-date information on EU data protection principles and the ongoing reform, and to discuss US and EU perspectives focusing on commercial privacy. The conference will also take stock of the operation of the EU-US Safe Harbour agreement and discuss issues regarding its further development.'

The conference will be held simultaneously in Washington DC and Brussels (via video conference link). A web cast will be made available, both live and after the conference.

Small world

For those of you who enjoy academic tourism, some interesting events are coming up relating to European consumer law. These include:

International conference
'European and national consumer law: what's new?'

1-2 March, University of La Rioja, Spain

International conference

'Consumer rights: The first fifty years'

15 March, University of Utrecht, the Netherlands

Secola conference
'Principles and specific rules in European contract law'

1-2 June, Messina, Italy

and, already next week, a symposium (in Dutch) on the Common European Sales Law (CESL)

29 February, Amsterdam, the Netherlands.

More news on other upcoming conferences on the proposal for a CESL will follow shortly. For an informative summary of an international conference on this topic that took place in Trier, I refer to Eric Clive's post on the Edinburgh 'European Private Law News' blog.

Human rights in business

This week, the European Commission's DG for Enterprise and Industry announced that it has selected three business sectors for a year-long project aimed at developing sector-specific guidance on the corporate responsibility to respect human rights. One of them is the ICT sector. The Commission indicates that:

'The guidance developed through this project will be based on the UN Guiding Principles on Business and Human Rights. The European Commission identified the development of sector-specific guidance as one of the priority actions in its recent communication on corporate social responsibility.

Extensive consultations with enterprises and all concerned stakeholder groups are planned as part of the project process. Shift and IHRB will coordinate this process on behalf of the European Commission. The development of the guidance is due to be completed by the end of 2012.'

From a private law perspective, it will be interesting to see whether the human rights guidance that is expected to result from this project will consider the development of private law remedies for consumers, employees and third parties (e.g. liability under contract or tort law) alongside voluntary commitment to human rights standards by ICT businesses. Insofar as internet users are concerned, the recent proposal for a General Data Protection Regulation (on which we posted earlier) might serve as an example, since its Article 77 establishes a right to compensation for damage from a controller or processor who infringes data protection law.

Finally, here is some recommended further reading...
...on the history of human rights: 'The last Utopia' by Samuel Moyn
...on human rights and EU-based businesses: Alexandra Gatto's book on 'Multinational enterprises and human rights'
...on contract law and human rights (for those of you who read Dutch and from this group especially those reading this on an Apple computer): a news paper article by Lyn Tjon Soei Len.

Money back guaranteed regardless the reason for travel organiser's insolvency - CJEU in Blödel-Pawlik (C-134/11)

16 February 2012: CJEU judgement in Blödel-Pawlik case (C-134/11)

Imagine you book a package travel for you and your partner. Before you trip commences, you receive a notice from the travel agency that they are declaring insolvency. What happens then? According to Art. 7 of the Package Travel Directive you should have no problem getting your money back, since the travel agency needs to be insured against insolvency.

This wasn't so easy for Mr Blödel-Pawlik. Even though the travel agency he used took out insurance against insolvency and provided him with two notices of guarantee, confirming that the cost of the trip would be refunded if the travel agency became insolvent, he still had problems with getting reimbursed. The reason for this was that it was clear that the travel agency never really intended to organise the trip in question. It was fraudulent conduct on its part to offer organisation of this trip for which the insurance company did not want to take responsibility towards consumers. The question asked to the CJEU was whether Art. 7 of the Package Travel Directive should be interpreted as intending to protect consumers also against fraudulent intent of travel organisers.

The CJEU answered: yes. The purpose of Art. 7 is to protect consumers against the financial risks arising from the insolvency of package travel organisers, which means that the refund of consumer's money has to be guaranteed. (Par. 19-20) There is no extra condition added to the provision of Art. 7 as far as the reason for travel organiser's insolvency is concerned. (Par. 21) This means that:

"facts such as imprudent conduct on the part of the travel organiser or the occurrence of exceptional or unforeseeable events cannot constitute an obstacle to the refund of money paid over or to the repatriation of consumers under Article 7 of Directive 90/314" (Par. 23)

No general obligation to monitor information stored by online social networking platforms - CJEU in Sabam (C-360/10)

16 February 2012: CJEU's judgement in case Sabam (C-360/10)

The CJEU published today a judgement that is important for consumers' use of the online social networking sites. The potential limitation for consumers using such platforms could come due to lowered protection of their personal data, as well as censorship of information that they are allowed to share with their communities. This censorship could, e.g., happen due to the need to protect copyrights. Namely, parties who hold intellectual property rights to musical, cinematographic etc. works may ask national courts for an injunction that would require hosting service providers to install systems that would identify electronic files containing protected artistic works, with a view to prevent them from being made available to the public at large, in breach of copyright.

Pursuant to the judgement the national courts of Member States may not issue an injunction against a hosting service provider that would oblige it to install a certain system for filtering information. This contested system would require the hosting service provider to filter information which is stored on its servers by its service users as a preventative measure. It would be applicable indiscriminately to all users, for an unlimited period and it would have to be installed at the own expense of the hosting service provider. This specific contested filtering system is seen as being able to prevent future infringements of copyrights.

In the case SABAM - a Belgian management company representing authors, composers and publishers of musical works - asked for such an injunction against Netlog. Netlog runs an online social networking platform where every person who registers acquires a personal space ('profile') which the users fill themselves. Among other data users may also publish musical and audio-visual works in Sabam's repertoire, making them available to the public at large. Netlog itself doesn't pay any fee to Sabam for allowing its users to share Sabam's repertoire, which led Sabam to demand from Netlog ceasing unlawfully making available musical or audio-visual works from Sabam's repertoire. Netlog claimed that in order to comply with such an injunction it would have to install a specific filtering information system.

The CJEU reminded that holders of intellectual property rights may apply for an injunction against operators of online social networking platforms, given that their services may be exploited by users of those platforms to infringe intellectual property rights. (Par. 28) However, the rules adopted by national courts in order to protect intellectual property rights may not require a hosting service provider to carry out general monitoring of the information that it stores. (Par. 33-34) In the case at hand, the injunction would require installation of a filtering system that would require:

"–        first, that the hosting service provider identify, within all of the files stored on its servers by all its service users, the files which are likely to contain works in respect of which holders of intellectual-property rights claim to hold rights;

–        next, that it determine which of those files are being stored and made available to the public unlawfully; and

–        lastly, that it prevent files that it considers to be unlawful from being made available." (Par. 36)

All in all, hosting service provider would have to actively observe files stored by users, and would have to examine almost all of the information thus stored by all of the service users in order to prevent any future infringement of intellectual-property rights. Such general monitoring is prohibited by Article 15(1) of Directive 2000/31 on e-commerce. (Par. 38) 

The CJEU recognizes that the right to intellectual property is enshrined in Article 17(2) of the Charter of Fundamental Rights of the EU. However, it contests that it is not an inviolable right, that would have to be absolutely protected. (Par. 41) Protection of the fundamental right to property has to be balanced against the protection of other fundamental rights. (Par. 42) In the given case a fair balance must be reached between:

"the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as hosting service providers pursuant to Article 16 of the Charter" (Par. 44)

As long as the injunction requires a hosting service provider to install a costly, complicated, permanent computer system at its own expense it has to be seen as seriously infringing the freedom of the hosting service provider to conduct its business. (Par. 46) Moreover, the contested filtering system could infringe also the fundamental rights of service users, namely their right to protection of their personal data and their freedom to receive or impart information (safeguarded by Art. 8 and 11 of the Charter). (Par. 48) Additionally, freedom of information could potentially be infringed, as well, since that filtering system may not distinguish adequately between unlawful and lawful content. As a result, introduction of such a filtering system could lead to the blocking of lawful communication. (Par. 50)

Summing up, it is good news for online social networking sites like MySpace or Facebook, on which consumers may post audio or video files that could potentially infringe someone's copyrights. This judgement confirms that they are not obliged to install general monitoring systems that would filter all information stored by consumers on such platforms.

Simplified cross-border money transfers thanks to SEPA

Yesterday, the European Parliament adopted in the first reading a new Regulation establishing technical requirements for credit transfers and direct debits in euros and amending Regulation (EC) No 924/2009 (position of the EP may be found here, the final text of the Regulation is not yet available). This new regulation establishes a single Euro payments area (SEPA) with the same rules and standards for euro credit and direct debit transactions among banks. While its provisions do not apply to personal credit or debit card payments, it is still of great relevance for European consumers. Since all national banks will now have to apply the same charges, this means that as of 1 February 2014 there should be no more hidden charges in cross-border transactions, which led to unfair competition and hindering of cross-border trade. For example, if a EU citizen moves to another Member State, he may continue using the same bank account, e.g. in his home country, for receiving salary or paying bills in another Member State. 

"This regulation really benefits citizens. It will enable them to make payments from one bank account to others all over Europe, just like a normal domestic payment. It will be possible to make all cross-border credit transfers and direct debits in the same way as normal domestic payments. A person working abroad will not need to open a new bank account in the host country, but may receive his or her salary in the home country bank account. Companies will benefit too, by not needing more than one bank account in Europe for each payment purpose" - this statement has been made by the SEPA rapporteur Sari Essayah (EPP, FI). (Simple and efficient cross-border payments)

Unfair terms in consumer credit agreements - AG of the CJEU in Camino (case C-618/10)

14 February 2012: AG Trstenjak gave her opinion in the case C-618/10 (Banco Español de Crédito v. Joaquín Calderón Camino)

This case concerned an unfair contract term that constituted a part of a consumer credit agreement. In May 2007 Mr Camino concluded a loan agreement with a Spanish bank for the sum of EUR 30.000. He intended to purchase a vehicle for that amount. The loan was terminated early since the consumer did not timely make all of the agreed repayments. The bank started proceedings in the Spanish courts claiming repayment of the loaned amount plus interest and costs. One of the contractual terms set the rate of interest on late payments at 29%. The Spanish court of first instance considered (of its own motion) that term unfair, and therefore void, and decided to replace that contractual term by another one - fixing the rate of interest at 19% instead. The bank objected to this verdict by claiming that the national court may not raise of its own motion such an issue at the beginning of the procedure, where no motions were made concerning it. The main questions asked to the CJEU are therefore: 

1. Does a national court have authority to assess of its own motion unfairness of a term concerning interest on late payments in consumer credit agreements in limine litis or at any stage during the proceedings for an order for payment or should it wait for an objection of a consumer to the application of such a term? 

2. Does art. 6 (1) of the Unfair Contract Terms Directive which states that an unfair term 'shall not be binding on the consumer' grant a power to national courts to replace a contractual term which has been established to be unfair by another term which is not regarded as unfair?

Question 1

As far as the first question is concerned, it is important to mention that the procedure for an order for payment has been formalized and harmonized in Member States with the goal to make it simpler, quicker and more effective for contractual parties. Therefore, allowing national courts to conduct assessment of unfairness of contractual terms in these proceedings of their own motion could be seen as going against this goal, since it would require a thorough assessment of contractual rights and obligations (lengthening the procedure). As the AG mentions:

"If the Court should accept the existence of such an obligation under EU law, this would ultimately mean that the national legislature would be forced to made comprehensive modifications to its law of civil procedure in order to comply with the rules of EU law. At the same time, however, it would have to ensure that the national order for payment procedure does not lose its efficiency and is retained as an instrument for simple, low-cost enforcement." (Par. 27)

The AG considers the judgement given by the CJEU in the Pénzügyi case, in which the CJEU put an obligation on national courts to investigate whether there is an unfair term in the contract, even if national procedural rules permit that only if the parties so request. (Par. 32-33) However, the AG does not think that this rule should be applied to the case at hand, which concerns the order for payment procedure. (Par. 34) The AG differentiates these two cases based on the phase of proceedings that they were in. In the Pénzügyi case the consumer appealed from the order for payment procedure, initiating the declaratory judgement procedure. In the Camino case the court assessed of its own motion the unfairness in the order for payment procedure, to which pursuant to the AG the Pénzügyi case does not apply. (Par. 36) Another difference between these two cases was as to the type of contractual term that was being assessed (in Pénzügyi case - term conferring jurisdiction; in Camino case - term concerning interest on late payments). (Par. 40)

"(...) jurisdiction agreements must in principle be distinguished from terms which lay down substantive contractual obligations. A distinguishing feature of the latter is that they often contain detailed terms which are binding on the contracting parties and whose incompatibility with the requirement of good faith cannot always be determined prima facie, not least because of their complexity. Rather, such a finding often requires a thorough assessment by the national court having regard to all the circumstances of the individual case." (Par. 41)

Therefore, while a national court knows without doubt that it is dealing with an unfair contractual term when it is assessing a term conferring jurisdiction, the same cannot be said for other substantive contractual terms (like the one on interest on late payments). In the first case, a national court does not have to conduct thorough assessment of unfairness (prolonging the procedure), in the second one - it does. (Par. 45-46) A need to conduct such a thorough assessment would negatively influence efficiency of a national order for payment procedure, that is quick enforcement of uncontested pecuniary claims. (Par. 49, 52-53) Moreover, it does not seem that by refusing to conduct the test of unfairness in such proceedings the principles of equivalence and effectiveness would be infringed. (Par. 65, 73-74)

"(...) it is possible to concur with the unanimously held view of all the parties, that it appears sufficient, in order to ensure that consumers are protected against claims based on unfair contractual terms, if, as is generally envisaged in a national order for payment procedure, the consumer in respect of whom an application for an order for payment has been made is given the opportunity to make a legal challenge by bringing an appeal." (Par. 74)

harmonization character of the Directive, Member States may put an obligation on their national courts to conduct such an assessment during the order for payment procedure.

Question 2:

The AG takes into account literal interpretation of Article 6(1) as well as its purpose. The text of the Directive does not mention a possibility of 'replacement' of unfair terms. The only legal consequences of unfairness is the fact that such a term is 'not binding'. Since this rule is mandatory, that means that no derogations thereof are permitted. (Par. 84) Moreover, text of the Directive states that the contract continues to bind the parties if it is capable of continuing in existence without the unfair terms. 

"Article 6(1) of the directive must therefore be understood to mean that, after the unfair terms have been removed, the contract must continue in existence in unmodified form as to the remaining terms, if that is legally possible, which notionally precludes any replacement of terms or modification of the contract." (Par. 85)

Moreover, while the short-term purpose of Article 6(1) is to prevent consumers remaining to be bound by unfair contract terms, the long-term purpose is to prevent continued use of unfair terms in commercial practices. (Par. 86) The AG justly notices that if replacement of unfair contract terms by national courts was allowed, that would significantly diminish the deterrent effect of the unfair contract terms regulation. 

"Whilst the seller or supplier possibly has grounds to fear that, by virtue of a finding that a term is not binding, he will continue to be bound by an agreement which may be less favourable for him, a modification along the lines described above ultimately results in the terms of the agreement being modified in accordance with the law and thus to a state which is acceptable to the seller or supplier. (...) the seller or supplier may ultimately feel provoked by such a legal situation, especially since he would have nothing to lose by attempting to impose his terms on the consumer. " (Par. 88)

Answer: Article 6(1) of the Directive does not allow for national courts to modify a consumer agreement so as to replace an unfair contractual term by another term which is not regarded as unfair.

It is a very interesting opinion, especially the second answer given by the AG, if it is upheld by the CJEU, may lead to changes in many national laws (since at the moment in many Member States judges tend to replace unfair contract terms by not unfair contract terms instead of removing them from the contract).

Calling 112

Recent survey showed that many Europeans don't know that when they travel within Europe there is one emergency number (free of charge!) they can call in every country: 112 (112 day: 74% of Europeans don't know what emergency number to call when travelling in the EU. New campaign.). Only 34% of regular travellers and 26% of all Europeans are aware of that (Eurobarometer survey on 112). This is astounding, taking into account that often it is when we travel that we need emergency assistance and knowledge of that number could be more than just handy. The European Commission asked and received help of many transport companies to increase awareness of this emergency number among European travellers in 2012. Interestingly, also European countries who are not members of the EU have introduced or are introducing this number for emergencies (e.g. Turkey, Croatia).

More on this emergency number may be found on the website set up for it.

Towards a United State(s) of Europe?

While Father Frost turned Amsterdam into a winter wonderland, trains came to a stand-still and skating fever started rising, a small group of academics gathered at the Oudemanhuispoort (photo by Joasia Luzak) last Friday to discuss the relationship between private law and nationalism. If one has to get snowed in to debate this important topic, who better to do so with than Martijn Hesselink, Guido Comparato (the two organisers of the seminar), Ruth Sefton-Green, Ralf Michaels, Jan Smits and Hugh Collins?

The seminar, which formed the conclusion of a HiiL project, explored the question whether resistance against the Europeanisation of private law on the level of the Member States might be explained on the basis of nationalism. As the organisers framed it:
'If nationalism is the political principle according to which the political and the national unit should be congruent (Gellner) should then not the resistance against the Europeanization of private law, often in the guise of technical arguments, not be regarded as a form of (crypto-)nationalism if such arguments consistently regard the nation state as the most natural locus for private law making? And, on the other hand, if nations are imagined communities (Anderson), construed by men and women over time, should not then the work on a Common European Sales Law and a European Law Institute count as important instances of European national building? Nationalism seems bad, indeed dangerous, in light of the catastrophic role it played in the 20th Century. However, more recently it has been argued that nationalism and liberalism are not irreconcilable (Tamir) and that the solidarity that is needed for a functioning welfare state requires a common sense of belonging that is found in the nation (Miller). Can a similar normative argument be made in favour of liberal private law nationalism?'

For European consumer law, these queries are of great relevance, since their answers may explain some Eurosceptical tendencies in the approaches to EU law in certain Member States and propose ways to overcome these. The presentations of Ruth Sefton-Green and Ralf Michaels highlighted instances of crypto-nationalism (which in some cases were not even very cryptical) in French and English law, taking into account the importance of national culture and language, as well as concerns of democracy and otherness. Jan Smits sought an explanation for nationalism in public choice theory, sketching how the search for homogeneity within a nation-state could serve the maximisation of the interests of actors ('nationalists') within a society, and then exploring whether the nation-state still offered the best framework for the pursuit of these actors' interests. Hugh Collins, on the other hand, welcomed all participants to the seminar to the 'Study Group on Social Justice in European Private Law', emphasising the importance of further consideration of the authority of principles of private law that determine what are just outcomes in economic and social interactions. Martijn Hesselink made a strong case for the newly proposed Common European Sales Law to be considered as a common European model of justice between private parties. On the basis of his analysis, as well as the in-depth research done on the theme by Guido Comparato, it may be argued that pro-European views can be seen as a form of 'Euro-nationalism'. Outlining a constructive approach to the application of fundamental rights in European private law, my presentation during the seminar sought to find support for this thesis in a combination of constitutional and private law theory. As Guido suggested, finally, it may be argued that a broad notion of legal culture is no longer bound to the geographical dimensions of nation-states, but could benefit from 'stepping away from the blurring shadow of the Volksgeist'.

Some pictures of the seminar can be found on the website of the Centre for the Study of European Contract Law. The papers are meant to be published in the European Review of Contract Law later this year.

4 pillars of Consumer Agenda

Commissioner Dalli introduced current Consumer Agenda to members of IMCO today. In his speech he focused on four pillars: safety, information, rights and enforcement (see also our earlier post: "Roadmap for the European Consumer Agenda").

SAFETY

Soon, the General Product Safety Directive will be under revision. Changes to the existing provisions of the directive may lead to strengthening of market surveillance and deal with challenges linked to globalisation of the production chain. Another issue that needs to be tackled by the European Commission is how to move on from regulating safety of products to regulating safety of services, as well.

INFORMATION

Consumers should not only have access to information but also tools to understand it. This means that information should be transparent, unbiased and accurate, on one hand, and that consumers should be educated so that they can understand the information they receive, on the other hand. The idea is to add consumer education to students' curriculum. Empowering consumer organisations will help in educating consumers, as well.

RIGHTS

Consumer rights in sectoral policies will need to be made more transparent, easier to understand and make use of (especially as far as banking services are concerned).

ENFORCEMENT

Consumer redress should be fast, cheap and effective. The idea is to build on the proposals on ADRs and ODRs. The network of national enforcement authorities needs to be strengthened, coordination improved, and cross-border agencies encouraged to assist in solving more issues.

"Organic wine" EU label

While reading EU press releases today I stumbled upon a post introducing new EU rules regarding organic wine (New EU rules for 'Organic Wine' agreed). Apparently, the Standing Committee on Organic Farming (SCOF) had agreed on these new rules and they may supposed to influence production and labelling of wine as of this year. 

Currently, there is no definition in EU of "organic wine". Organic grapes are defined and, therefore, EU wine growers may get a certificate that their grapes are organic and they may label their wines as "wine made from organic grapes". That's not the same as labelling their wines as "organic wine" since this second label covers the whole wine-making process, from grape to wine. For example, sorbic acid and desulfurication will not be allowed and the level of sulphites in organic wine will have to be at least 30-50mg per litre lower than in regular wines. Maximum sulphite level is set at 100mg per litre for red wine and 150 mg/l for white/rose. The new definition is consistent with the organic objective and principles laid down in Council Regulation on organic farming standards (EC 834/2007). It follows also the Wine Common Market Organisation (CMO) regulation 606/2009 on grapevine products and oenological practices.

I found this news interesting since I'm allergic to sulphites and may only drink organic wine. However, from what I heard around me more and more consumers are interested in drinking organic wine - mostly, because the lower sulphites level in wine makes it more likely that you will have a headache-free day the next day. From the EU internal market perspective, this is good news since the EU wine growers will be better able to compete now against wine growers from other continents, who have been able to label their wine as organic for some time now.

More info to be found in the MEMO.

7 February 2012 - Safer Internet Day

Today is a Safer Internet Day, organized by the European Commission's INSAFE network in order to encourage children, their families and teachers to discover the online world together ("Digital Agenda: Safer Internet Day 2012, linking up generations for a safer digital world"). Currently 77% of 13-16 year olds and 38% of 9-12 year olds who use the Internet admit to having a profile on a social networking site. 12% of the latter group admitted to having been bothere or upset by something they have seen online. Since most children receive advice on safety online from their parents, teachers, relatives - then it makes sense to organize this year's event around the communication about online world between generations.

It's not only a European event, it's celebrated worldwide to promote safer Internet for children and teenagers. However, it fits perfectly within the programme of the Digital Agenda. In December 2011, the Commission arranged for 28 leading companies to commit to making a better and safer Internet for children, and three more companies joined the coalition in January 2012. These companies enable easier reporting of harmful content, ensure privacy settings at age-appropriate levels, offer wider options for parental control and control classification.

The 6 key tips that INSAFE gives to parents and teachers to keep children safe online are:

• Talk about the internet and dedicate time to explore it together with the child. Ask the child to show them what he or she likes to do online, and try not to be shocked or overreact if they do not share the same interests. 
  
  
• Stimulate the child's creativity. Point them in the direction of the best online content to explore for their development (or just for fun). The child can learn and discover new sites, play games, write blogs, create websites. Stretch his or her imagination. 
  
  
• Set up rules or boundaries together. When\Where\Why and for how long can the child use their mobile phone or computer? If you listen to the child and establish fair rules, then he or she is more likely to stick to them.
  
  
• Protect personal data and help the child understand that information or photos they put online can remain visible to everybody forever. Help them set up the highest level of privacy settings on social networks. 
  
  
• Think about using parental control tools to automatically filter certain topics (e.g. violence, porn) and limit the time the child will be able to navigate the web.
  
  
• Avoid having a computer in the child's bedroom. Put it in the living room instead. It will make it easier to follow the child's web-surfing habits on a daily basis. 

I agree with these tips except the latter one. I don't think we need to shield our children to the point of infringing their right to privacy. I had a computer in my room when I was growing up and maybe I encountered a few times something that had bothered me online but at least then I was not at risk of being embarrassed as well, knowing that my parents could be walking any time in the room and seeing it. It's all about trust and communication that we have with children, not absolute control (which is impossible to achieve, anyway), in my opinion.

Goal! ... Goals were set for future European regulations of sport sector.

Everyone has some hobby or passion that he just cannot help but be a bit emotional about, maybe even a bit out of control about. Many of these are sport-related. Unfortunately, some of these sport passions tend to take over rational sense which sometimes escalates in violence during sport events, match-fixing, players' doping etc. Sport has been recognized as one of the areas that European institutions have power to harmonize on a European level, on the basis of article 165 of the Lisbon Treaty. A few days ago, the European Parliament adopted a resolution in which it calls for more legislative initiatives aiming at regulating sport on a European level (Sport: EU tackles hooligans, corrupt agents and illegal betting).

One goal that was set for European institutions is to make sport more approachable and attractive for girls and women. On one hand, it may be achieved by increasing the amount of women in sport governing bodies, who could possibly better protect female interests in sports. On the other hand, it is interesting to see that the European Parliament members perceive cultural or religious grounds that could restrain girls (or more specifically 'immigrant girls') from participating in gym or swimming classes at schools as intolerable and inexcusable. Personally, this view seems to be a bit narrow-minded and may lead to some unrest it would lead to the adoption of a binding provision in this scope.

Less controversial idea is to create European blacklists of hooligans, that is, sport fans who are known to be violent or engage in discriminatory behaviour. They should be banned from all European stadiums during international matches. This goal could be achieved upon creation of a European database. I'm fully in support of this idea, especially since I'm supposed to attend a game during EURO 2012 and I worry a bit about safety measures that are going to be enforced.

The MEPs think not only about protection of potential female athletes as well as safety of citizens attending games, but also professional athletes. They suggest adoption of a new European law on the basis of which trafficking in performance-enhancing substances would be treated alike trafficking in illegal drugs. Moreover, any match-fixing, illegal betting etc. should be treated as a criminal offence in Europe. Licensing system should be adopted for betting operators. Other initiatives concerns sports agents as well as education system set up for young athletes aside their sports training.

Back to the drafting board for the European Commission on 'percentage less'

Last year we mentioned that the European Commission was busy updating the Regulation 1924/2006 on nutrition and health claims made on food ('How many calories/vitamines/etc. are in...? - new Regulation on Food Information'). Apparently, there are more changes to be introduced, but the European Parliament opposed today a new draft of the European Commission that would amend this Regulation ('MEPs veto 'misleading' food labelling changes'). The new amendments would have allowed food producers to label their products as containing a certain 'percentage less' of sugar, salt or fat content (e.g. '15% less sugar') in comparison to what the same product previously contained. 

The misleading part may come when consumers compare, e.g. two sorts of sausage of different brands and one has a label '15% less fat' while the other 'reduced fat'. The 'reduced fat' label may be put on a product, pursuant to other EU laws, only if that product has less than 30% of fat in comparison to other similar products. This means that if the producers of a really fat sausage reduce its fat content by 15% they could then label it '15% less fat' but not 'reduced fat' if it isn't 30% lower in fat than other sorts of similar sausage. Consumers may not know that, however, and be convinced that getting a '15% less fat' sausage would be healthier for them than getting a 'reduced fat' sausage. Right. So... back to the drafting board, European Commission!

The resolution is to be found here.

euvr - New journal on European consumer and market law

Mid January saw the birth of a new journal on European consumer law: the Journal of European Consumer and Market Law, aka 'euvr' (taking the initials from its German name, the Zeitschrift für Europäisches Unternehmens- und Verbraucherrecht). The journal is edited by the Association of European Consumer Law, of which two of the contributors to this blog are members. The first issue includes an editorial by Verica Trstenjak (Advocate-General at the Court of Justice of the EU), articles on consumer credit law and the optional instrument, and a case note on CJEU Weber & Putz by the main contributor to this blog.
[To reassure readers who might sense a conflict of interests here, seeing the personal overlap of bloggers and editors/authors: no payment, force or other incentives were used to get me to advertise this journal here. Just thought it might interest you to know about the new magazine...]

The journal's 'mission statement' reads as follows:

'This new Journal aims at filling a gap in existing publications in the field of European consumer law. Its main focus is on issues of consumer law in the EU internal market. European consumer law is understood in the broadest sense including user and passenger law. The focus of the journal goes beyond the traditional understanding of consumer law as consumer protection law and includes consumer law from the perspective of businesses in the B2C market.

The emphasis lies on the debate of consumer law as it stands in a system of multilevel governance. This includes discussing issues of private as well as public law, of substantive as well as private international and procedural law, of national, international and supranational law, new regulatory instruments (e.g. uniform law, soft law, service standards) as well as questions of law making.

The journal contains articles (peer reviewed), short contributions, legislation report, case commentaries, pending cases, book reviews and events. Contributions will appear in English and/or in German.'

More information and a call for papers can be found on the euvr's website.