Thursday, 28 June 2012

Environmentally friendly food - new EU logo helps in recognition of organic products

Another interesting news for consumers: as of 1 July 2012 also the new EU organic logo becomes obligatory on all pre-packaged organic food products produced in the EU. This means that any European product without this logo which claims to be organic, has not, in reality, fulfilled the European norms set for organic products. Imported products as well as non-packed organic products may choose to use this logo, as well. This does not mean that other logos confirming the organic character of the product will disappear from the labels, e.g., of received private certificates or regional logos (see pictures below this post for examples thereof). However, consumers who were confused by different logos on the organic products and doubted as to the product's organic character will be able to get some clarity now - they just need to look for the logo of an "Euro-leaf" (on the right).

This logo was introduced 2 years ago but with a two-year transition period before it became mandatory. Still, in the past two years almost a quarter of EU citizens already learned to recognize it.

"The visual field of the logo should also show the code number of the control body and the place of farming of the agricultural raw materials." (EU organic logo fully up and running from 1 July 2012)

Holiday savings - new roaming rules into force on 1 July

Today, the European Commission published a press release on the new EU rules on roaming charges that will come into force on 1 July 2012.

Good news for travellers with a weakly developed sense of direction, news addicts and users of digital services in general: For the first time, there will be a cap on so-called 'data roaming', meaning the downloading of data from the internet through a mobile connection (see also an earlier post on this blog). This should bring down the prices for accessing maps, videos, social networks and digital media while roaming through the EU, or at least make sure that travelling digital consumers will not be surprised by high bills when returning home. Furthermore, prices for sending text messages and making voice calls will also be cut.

The new maximum charges as of 1st of July will be:
  • 29 cents per minute to make a call, plus VAT
  • 8 cents per minute to receive a call, plus VAT
  • 9 cents to send a text message, plus VAT
  • 70 cents per Megabyte (MB) to download data or browse the Internet whilst travelling abroad (charged per Kilobyte used), plus VAT.
See also the European Commission's roaming website.

Wednesday, 27 June 2012

NO to ACTA... almost there

Just a short update on ACTA (see last: ACTA under more fire). Next week the European Parliament will have to decide whether to accept or reject it (on the 4th of July). Last week the International Trade Committee responsible for issuing an official recommendation voted against adoption of ACTA. (Parliament should say NO to ACTA) More here.

Monday, 25 June 2012

Inducement in doorstep selling contracts

In the last week's European news we could read about an action taken against Germany by the European Commission, urging Germany to stop infringing consumer protection in doorstep selling contracts. That caught my attention since Germany is known to actually try to go beyond the minimum level of harmonisation given in the Doorstep Selling Directive (85/577/EEC). This was one of the arguments raised against the introduction of the Consumer Rights Directive (2011/83/EU) with a maximum harmonisation character.

Apparently, while Germany gives some more rights to consumers concluding contracts in door-to-door situations, it also introduces one extra requirement for recognising that a contract was concluded 'at the doorstep'. Namely, consumers needed to be induced into entering into the contract. This is interesting, since this requirement actually reflects the economic rationale behind many provisions of the Doorstep Selling Directive. After all, it mainly aims at protecting consumers who were surprised by a salesman in situations they had not expected to have to negotiate a contract (i.e., outside business premises of the salesman when the consumer did not come out with an initiative to conclude a contract). It could be seen, therefore, that putting this requirement to paper should not infringe the consumer protection.

The European Commission points out, however, that the requirement of 'inducement' has not been mentioned either in the Doorstep Selling Directive or in the Consumer Rights Directive. Its explicit addition makes it harder to claim consumer protection since it may be difficult to prove that the contract was concluded under inducement. And so, in some German court cases consumers were unable to prove that the doorstep-selling situation was decisive for the signing of the contract because of previous visits by the trader. (Commission stands up for consumer rights) I wonder whether the European Commission's decision would have been the same if the burden of proof was placed on the trader, that is if he had to prove that there was no inducement instead of consumers having to prove its existence.

Sunday, 24 June 2012

Mandatory eCalls (EU life-saving system)?

Last year we mentioned that the European Commission issued a recommendation to mobile phone operators asking them to transmit eCalls properly (eCalls - towards a European life-saving system). Last week the European Parliament adopted a resolution pursuant to which all new cars should be fitted with eCall devices by 2015. 

An eCall device automatically alerts emergency services about road crashes through the public 112 emergency call system. This is seen as enabling the emergency services to arrive earlier at the scene of an accident, which may diminish the loss of lives and prevent more serious injuries. At the same time, these devices does not enable monitoring of car users' location unless an accident happens, which means that they do not infringe users' right to have their data protected.

Despite the strong support of eCalls in the EU institutions only a small number of cars is fitted with such devices up to now (ca 0,4%). Obviously, the industry does not put priority on deployment of such systems, which led the European Parliament to urge the European Commission to come with an appropriate legislative proposal to make this system mandatory by 2015.

"According to estimates, the eCall system would save up to 2500 lives a year and reduce the severity of injuries by 10 % to 15 %, the resolution states." (MEPs say mandatory emergency eCall system in cars will save lives)

Wanted: innovation

Last week the European Commission has launched a public consultation which would enable it to determine what kind of EU-level actions to undertake in relation to industrial innovation policy. This concerns consumers directly, since the more attention and support is given to the industrial innovation, the more likely it is that the products that consume less energy and/or are friendlier to the environment will become more available and affordable for consumers. (Boosting the demand for innovative European products and services) The public consultation is supposed to create a platform for bringing up ideas that would facilitate uptake of innovations on EU markets. See more here.

Thursday, 21 June 2012

You take the plane, and I'll take the train - on uniform passenger rights

Since I've been mostly travelling in the past month (the photo is one of the favourite ones I took in Mexico City), it's nice to find more EC news on consumer travel. While I mostly used air planes, there were also some buses and railways involved here and there. It would have been nice to know that as a passenger I had the same rights while using all these transport modes, or at least that if things went wrong I could expect similar assistance and complaint handling procedures. At this point, there is no uniform regulation of passenger rights for different transport modes in Europe. But this may change. 

This Tuesday there was a hearing organized in the European Parliament's Transport Committee with stakeholders from various travel organisations and consumer organisations in order to discuss strengthening of passenger rights. A survey prepared by Georges Bach was discussed (Draft report on passenger rights in all transport modes) in order to identify and find solutions to current EU travel issues. The survey mentions as such: unclear online pricing, lack of information while travelling, poor service for passengers with disabilities (see previous post), poor complaint procedures.

A good idea would be to draft one set of rules for enforcement of passenger rights - regardless the mode of transportation. This would give consumers clarity and legal certainty as to how to proceed when things go wrong during their trips. Unfortunately, this is seen as infeasible at the moment due to lack of experience with enforcement of rights for ship and bus passengers (these will only enter into force in 2013). Matthias Ruete, the Commission's Director General for transport, promises a revision of air passengers rights instead. This, however, was already on the table - so no news there.

"Monique Goyens of the European Consumers Organisation (BEUC) advocated enforceable pricing rules to halt the proliferation of unfair contractual terms and surcharges for basic services that should be automatically included in the fare." (MEPs assess how to strengthen passenger rights in all transport modes)

Unclear pricing is a huge issue for consumers, so it doesn't surprise that it was singled out in these talks as well. Hopefully, after many resolutions on this in the Parliament and many voices raised to change the transparency of the pricing policy this will finally get a priority at a drafting table in the European Commission.

Challenges of air travel

Most of us take it for granted that we can reach any destination within a frame of few hours, making use of advanced air travel options. However, for many disabled consumers air travel still is associated with lots of problems and unfair treatment. In order to fight this the European Commission has published guidelines on air travellers' rights. (What passengers with reduced mobility need to know when travelling by air) (based on the Regulation EC 1107/2006)

In general, persons with reduced mobility have a right to travel by air, but there are certain obligations placed on them, as well. Most importantly, a disabled person needs to notify airports and airlines about the need for special assistance at least 48 hours before the published time of departure. This allows the service providers to prepare special means that may be required (currently, only ca 40% of passengers pre-notify their assistance needs). A person with reduced mobility should not be refused travel on the ground that they don't present a medical certificate (if the medical condition is stable - e.g., a blind person) or that they don't have an accompanying person (if they are self-reliant). Moreover, such persons are allowed to travel with two pieces of mobility equipment (transported for free), a guide or assistance dog. Still, despite the Regulation binding the airlines already they continue to hinder air travel for disabled passengers and discriminate against them, for example:

"A senior UN official was denied boarding on a flight from Heathrow to Geneva because he was unaccompanied. The official was a paraplegic frequent traveller who had travelled unaccompanied for fifteen years."

"3 passengers on internal French flights were denied boarding because they were unaccompanied. They later successfully challenged the decision in court. The airline and ground-handling company faced substantial fines for non-compliance."

It gets a bit complicated when a passenger requires oxygen on board. The airlines may determine themselves whether to allow access to passengers with their own oxygen and they are not required to provide oxygen themselves either. This may mean that such passengers won't be in practice allowed to travel by air. The guidelines aim at least to provide passengers with certain clarity, advising airlines to make their rules on travelling with oxygen clear.

Can ECCs help you as well?

In 2011, over 70 000 consumers received free advice and assistence from the European Consumer Centres Network.
The centres, established in every EU country (plus Norway and Iceland), offer advice before purchasing something cross-border and assistance in case something goes wrong. 
In 2011, the majority (ca. 54%) of the cases handled by ECCs was either solved directly (ca. 41%) or handled to other organisations (ca. 13%). When a solution could not be reached, this was largely due to lack of cooperation on the side of businesses, but also, in increased proportion since the previous year, some of the claims were simply found to be... unfounded. If you are experiencing problems, then, it might be definitely worth a try.
More facts and contacts (including where to find ECCs in the various countries) can be found in the easy-to-read report brochure.

Wednesday, 20 June 2012

Outdoing Huxley

Data protection is high on the agenda of the European Commission, as is attested by the pending proposals for reforming the existing EU data protection framework (see earlier posts on this blog 'EU data protection reform' and 'EU data protection reform announced').

Last Monday, Commissioner Reding gave a speech on the topic at the Digital Enlightenment Forum in Luxembourg: 'Outdoing Huxley: Forging a high level of data protection for Europe in the brave new digital world'. She set out the Commission's aims in the field and explained the background to the proposals:

'Control of every movement, every word or every e-mail made for private purposes is not compatible with Europe's fundamental values or our common understanding of a free society. This is why the Union's Charter of fundamental rights recognises both the right to private life in Article 7 and the right to the protection of personal data in Article 8. But this is not all: Article 16 of the Treaty on the Functioning of the European Union also gives the European Union the legislative competence to establish harmonised EU data protection laws that apply to the whole continent and that make the right to data protection a reality. Data protection is thus one of the rare fields where we have full coherence between the fundamental right and the EU’s legislative competences of the EU. This makes data protection a particularly powerful fundamental right in the European Union, and the Commission’s proposals from 25 January have been designed to put this right into practice everywhere in our internal market.'

Reding's speech replied to some points of criticism that the proposals encountered so far (e.g. from the European Data Protection Supervisor, see 'Critical look at the new data protection rules'). Regarding possible problems related to the enforcement of the proposed rules, she observed:

'In the interest of legal certainty and of fair competition, we have introduced a one-stop-shop system.

For the consumer, this means that they will always turn to their national data protection authority when they have a problem with a company – no matter where the company is based. They will not have to labour through the process of contacting authorities in different EU countries, riddled as it is with problems of different languages or procedures. We make things easy for the consumer.

The same un-bureaucratic one-stop-shop exists for companies as well. They will only have to deal with one data protection authority: in the country in which they have their main establishment. This cuts costs while increasing legal certainty.'

On the point of possibly conflicting fundamental rights, such as the rights to privacy and data protection (incl. a 'right to be forgotten') v freedom of the press, Reding added:

'We are thus allowing Member States to create rules to reconcile the right to the protection of personal data with the rules governing freedom of expression.

This is certainly a difficult balancing act, and one that can only be achieved in the knowledge of the specific details of each individual case and the specific national circumstances. In short, the right to be forgotten is not an absolute right, it is a relative right. Like the general right to privacy, it is a right that needs to be reconciled with other rights which are also protected by the EU's Charter of Fundamental Rights.'

See the website of the Digital Enlightenment Forum for more information and the programme of the meeting.

Analogue enlightenment - Luminara di San Ranieri, Pisa, 16 June 2012

Monday, 18 June 2012

Topics of the month

Consumer organisation BEUC's topic of this month is...the proposal for a Common European Sales Law (CESL). On its website, representatives of various institutions and organisations give their opinions on the proposed optional instrument. While some praise the instrument for its potential to enhance consumer protection, others support BEUC's suggestion to develop other types of regulation for cross-border consumer contracts in the EU. Members of the EP even announce the preparation of an alternative approach, which will take the Consumer Rights Directive as its basis. To be continued...

Another topic of this month that may interest consumers is/was (depending on national preferences) the European football championship. To answer a question to which my brother drew my attention, I think under some circumstances it is still possible to send back orange t-shirts that were bought at a distance. Although it will be quite difficult to maintain that the product did not meet consumer expectations (unfortunately, the law does not always correspond to our feelings), football fans who received their shirts around the starting date of the tournament should be just in time to make use of their right of withdrawal from the sales contract under the Distance Selling Directive (without penalty, which in Dutch cases usually is something to be grateful for).

Thursday, 14 June 2012

CJEU judgment in Case C-618/10 Banco Español de Crédito SA v Joaquín Calderón Camino

Today, the Court of Justice of the EU handed down its judgment in a(nother) Spanish case concerning the Unfair Terms Directive. For a summary of the facts and of the Opinion of A-G Trstenjak in this case, I refer to an earlier post on this blog.

The CJEU reached a conclusion similar to the one of the A-G, holding that:

'the Spanish procedural legislation is not compatible with the Directive in so far as it makes impossible or excessively difficult, in proceedings initiated by sellers or suppliers against consumers, the application of the protection which the Directive intends to confer on those consumers.'


'where they find that there is an unfair term, national courts are required solely to exclude the application of such a term in order that it does not produce binding effects with regard to the consumer, without having the power to revise the content of that term. The contract containing the term must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible.'

See the text of the judgment and the press release for more information.

Tuesday, 12 June 2012

Football is money - A-G Bot's opinion in Case C-283/11 Sky Österreich v Österreichischer Rundfunk

A Dutch football coach once famously stated that 'football is war' (see on this and other thoughts on football-nationalism a nice article by Ian Buruma written at the occasion of the last World Cup). Nowadays, however, it might not be too far-fetched to say that, at least in Europe, 'football is money' would be a more correct description of the state of affairs. Rules and cases on transmission rights attest of the economic interests involved in the broadcasting of football matches, such as the ones of the ongoing European Championship.

Today, Advocate-General Bot delivered his opinion in the case of Sky Österreich v Österreichischer Rundfunk (ORF). The case concerned the transmission rights of several Europa League matches for which Sky had paid licence and production costs. In accordance with the EU Directive on Audiovisual Media Services, the Austrian regulatory authority in the field of communications decided that Sky had to grant ORF the right to transmit short news reports on Europa League matches involving Austrian teams. On the basis of Article 15(6) of the Directive it was established that ORF would only have to pay compensation for the costs of access to the satellite channel, which in this case equalled zero. Sky was of the opinion that this result was unfair, in particular insofar as Article 15(6) would systematically put exclusive right holders at an disadvantage. The dispute then reached the Austrian Federal Communications Tribunal, which raised a preliminary question regarding the compliance of the Directive with fundamental rights, in particular the freedom to conduct a business and the right of ownership (Articles 16 and 17 of the EU Charter of Fundamental Rights (EUCFR) and Article 1 of the First Protocol to the European Convention on Human Rights (ECHR)).

The reference for a preliminary ruling requested the Court of Justice of the European Union (CJEU) to evaluate the conformity with fundamental rights, in this case, the freedom to conduct a business and the right to property, of Article 15(6) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive).

A-G Bot considers that: 'It is clear from the case-law of the Court that the right to property, like the right freely to exercise an economic activity, is one of the general principles of law of the Union. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, restrictions may be imposed on use of the right to property, and the right to freely pursue an economic activity, provided that those restrictions correspond to objectives of general interest pursued by the Union and do not constitute, with regard to the objective pursued, a disproportionate and intolerable interference affecting the very substance of the rights thus guaranteed.' (para. 29)

Furthermore: 'Article 52(1) [EUCFR] ... accepts that limitations may be imposed on the exercise of rights such as the right to property and the freedom to conduct a business set out in Articles 17 and 16 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.' (para. 30)

Article 15(6) of the Directive, in the A-G's opinion poses a limit to the right holders freedom of contract: 'From the perspective of freedom to conduct a business, of which freedom of contract forms part, the immediate consequence of Article 15 is that television broadcasters who hold exclusive transmission rights can no longer decide freely with which bodies they may wish to enter into an agreement for access to short extracts. In other words, they may no longer grant licences to operators of their choice with a view to turning rights to extracts to account.' (para. 35)

It also affects the right to enjoy one's property: 'From the perspective of the right to property, this article has the effect of limiting the use that broadcasters who hold exclusive transmission rights may wish to make of their property.' (para. 36)

And, in the line of 'football is money' reasoning: 'More specifically as to Article 15(6) of the Directive, there is an infringement of the freedom to conduct a business and the right to property inasmuch as, the compensation of the right to short extracts being limited to the additional costs incurred directly by the provision of access, broadcasters who hold exclusive rights to the transmission of an event of high interest to the public can no longer freely decide on the price they charge for access to short extracts. The arrangements for compensation in this provision prevent, in particular, those bodies from having other television broadcasting organisations which wish to use short extracts contribute to the acquisition costs of those exclusive rights. The way those arrangements are structured may also have a negative impact on the commercial value of exclusive rights.' (para. 37, emphasis added)

Are these infringements of fundamental rights justified (cf. Art. 52 EUCFR)?

A-G Bot considers: 'By framing one of the ways in which the right to short extracts may be exercised, namely the compensation payable to the primary broadcaster, Article 15(6) of the Directive pursues the objectives set out in recitals 48 and 55, that is to say, in particular, the freedom to receive information and media pluralism.' (para. 42)

In this light, the analysis then requires the balancing of fundamental rights: 'The reason for the infringement of the rights recognised by Articles 16 and 17 of the Charter having thus been identified, it is now necessary to verify whether the limitation on the rights enshrined by these two articles is proportionate to the legitimate aim pursued. As this aim is primarily the need to protect another fundamental right, namely the freedom to receive information and media pluralism, the review of proportionality which I shall now conduct calls for the weighing of several fundamental rights. The issue is therefore whether, in adopting Article 15(6) of the Directive, the EU legislature achieved a fair balance between the right to property and the freedom to conduct a business, on the one hand, and the freedom to receive information and media pluralism, on the other.' (para. 45, emphasis added)

Taking into account the margin of discretion for fundamental rights protection, the fact that the Directive was not pursuing complete harmonisation and the market-oriented nature of EU law, A-G Bot concludes that 'Article 15(6) of the Directive is able to achieve the aim sought, namely to ensure the freedom to receive information and media pluralism, but also that it does not go beyond what is necessary to achieve this aim.' (para. 53, emphasis added)

In this context, the A-G considers of particular significance the fact that the restriction of fundamental rights is mitigated by conditions and limitations attached to the use of the short reports of football matches (para. 63). Importantly, the right to broadcast these short reports only extends to 'events of high interest to the public' (para. 64). Furthermore, the Member States, in the A-G's opinion, also play a role, since it is for them, 'in the transposition of the Directive, to ensure that they adopt an interpretation of the Directive which allows a fair balance to be struck between the different fundamental rights protected by the legal order of the Union' (para. 68).

Finally, comparing the aims and objectives of the EU, related to the internal market, with the case law of the Austrian and German Constitutional Courts, A-G Bot notes: 'It follows that the weighing of the different fundamental rights at stake does not necessarily call for the same response at national or EU level' (para. 80, emphasis added). Accordingly, the national highest Courts' different views on the matter (holding that a right to extracts of football matches should not be granted free of charge) are dismissed as not having significant bearing on the review of Article 15(6) of the Directive (para. 79). So: 1-0 for EU policy in respect to the Member States' balancing of fundamental rights? Let's see what the CJEU makes of it.

See also the press release on A-G Bot's opinion and, if you like European football, the Euro2012 website.

Monday, 11 June 2012


Last Monday, the European Commission presented a new proposal for a regulation (on electronic identification and trusted services for electronic transactions in the internal market) that would lead to more security of electronic transactions. The aim is to enable European citizens to use their own national electronic IDs in order to access public services in other Member States that require the use of e-IDs. As a result, the electronic signatures and related trust services will need to have similar legal status in the EU and may grow in importance (facilitating also eProcurement).

One has to wonder, however, whether these ambitious goals will be reached since the European Commission does not intend to force any Member State to introduce a new e-ID system, nor to join into the European recognition of national e-IDs, neither will it lead to an introduction of a European e-ID. (Digital Agenda news)

Still, the European Commission sees the importance of the new rules and mentions as potential beneficiaries of this new regulation: students (being able to register at a foreign university without having to travel abroad), citizens having affairs (business or personal ones) in different Member States (e.g. arranging a marriage abroad, moving abroad, filling tax returns abroad), patients (who could allow access to their online medical records to foreign doctors), etc. (Q&A)

Saturday, 9 June 2012

Children and (safe) medicines

It is a sensitive topic, isn’t it? When it comes to children, special rules applies. That is why all (EU) institutions – without any exceptions – are obliged to increase the transparency of procedures for ensuring that children can benefit from medicines.

In order to protect better the health of children, the EU adopted a Paediatric Regulation in 2006. The Regulation includes an obligation requiring pharmaceutical companies to conduct tests to determine whether and how their medicines can be used to treat children. European Medicines Agency (EMA) is responsible for ensuring that pharmaceutical companies comply with their obligations under the Paediatric Regulation.

In October 2009, two pharmaceutical companies lodged a complaint with the the European Ombudsman because EMA was obliging them to test how their heart failure medicine could be used to treat children. They alleged discrimination, since EMA had exempted two similar medicines from the requirement to be subjected to such tests.

EMA stated that the limited number of children suffering from heart failure meant that only one heart failure medicine could be tested effectively. According to EMA, the complainants' medicine was the most promising, and thus the most appropriate medicine to test.

The Ombudsman conducted an investigation into the assessment procedures for the different medicines. He came to the conclusion that EMA was indeed entitled to oblige the complainants to conduct the tests. However, he criticised EMA's failure to ensure adequate transparency in its decision-making process. He called on EMA to document fully and disclose its assessments in the future and also to introduce relevant guidelines in this respect. He asked EMA to reply to his recommendation by 30 September 2012.

Thursday, 7 June 2012

Better information on delayed train connections - AG in the CJEU case C-136/11 (Westbahn Management)

7  June 2012: opinion of the AG Jääskinen in the CJEU case C-136/11 (Westbahn Management)

This new case of the CJEU concerns transport services offered to consumers. We talk a lot on this blog about protection offered to passengers of air planes, but not so often do we get a chance to discuss European measures in other areas of transport, such as railway.

In the given case Westbahn Management wanted to provide passenger services on the railway line between Vienna West Station and Salzburg Central Station. They were granted an operational authorisation to provide these services by decision of the Federal Ministry of Transport, Innovation and Technology of 29 May 2009. In the case referred to the CJEU they sued ÖBB Holding AG which is a sole shareholder in the largest rail infrastructure management company in Austria. The reason for that was a lack of access to the information that the ÖBB had and was not fully willing to share. Namely, the ÖBB disposes of real-time data on all trains operating on the Austrian rail network, including the current positions of trains, arrival/transit/departure times for the remainder of the journey, data on delays and cancellations. They share this data only in so far as it concerns the trains of the railway undertaking they are sharing it with, and not of other railway undertakings. However, all the data is displayed by ÖBB on electronic notice boards at major stations. Westbahn Management required access to all real-time data from the ÖBB in order to be able to inform its passengers about current departure times of their connecting trains, which was especially relevant in case of delays and cancellations. ÖBB refused such a disclosure and claimed that it could only be possible if Westbahn Management concluded agreements with all other railway undertakings operating in Austria, who would then disclose their own data to it. Interestingly enough, a company owned by ÖBB (ÖBB-Personenverkehr AG) refused to sign such an agreement. And so, the legal proceedings began.

The Austrian Commission (monitoring competition proceedings) stayed proceedings and asked the CJEU, whether Article 8(2) of the Regulation No. 1371/2007 of 23 October 2007 on rail passengers' rights and obligations should be interpreted as meaning that information on main connecting services must include, in addition to scheduled departure times, notification of delays to or cancellations of those connecting services. If the answer to this question was in the affirmative, then the second question arises as to the interpretation of Article 5 of the Directive 2001/14/EC of 26 February 2001 on the allocation of railway infrastructure capacity etc. Namely, does it oblige the railway infrastructure manager to make real-time data on other railway undertakings' trains available to railway undertakings in a non-discriminatory manner, as long as those trains constitute main connecting services?

The AG Jääskinen believes that the answer to both these questions should be in the affirmative.

First, the AG considered a claim that information concerning delays and cancellations of train services could amount to a business secret (and therefore, not easily be shared). (Par. 31) The AG does not give credence to this claim, since according to him information will only amount to a business secret under EU law if it was confidential information, disclosure of which could harm the undertaking, and information about train delays and cancellations is not confidential in nature. To the contrary, disclosure of such information is necessary in order to guarantee a well functioning rail transportation system. ÖBB realises that and the importance thereof to passengers since it displays is on electronic boards. (Par. 33-34) Moreover, this information should not be perceived as personal data, that needs additional protection under EU law, since this information does not give away any details on passengers, or even on other service providers as such, but only on the issue of whether the scheduled connecting services are in fact available. (Par. 36)

As far as the objectives of the Regulation are concerned, it aims at safeguarding users' rights for rail passengers and to improve the quality and effectiveness of rail passenger services, as well as to attain high level of consumer protection. (Par. 38)

"This includes the right to obtain information concerning rail journeys both before they commence and while they are being taken, and, wherever possible, as soon as possible (recital 4)." (Par. 38)

A narrow interpretation of the provisions in the Regulation would limit the information to which passengers are entitled to the departure times described in the timetable. It would be contrary to the aims of the Regulation, among which the passengers' right to be informed of late arrivals and departures by the railway undertaking or the station manager as soon as such information is available. (Par. 40) The information on scheduled times of departure and arrival becomes useless in case of delays and cancellations, and if during the journey the passenger might obtain only such information it would be a mere repetition of the information he had already received. (Par. 41) The systematic interpretation of the Regulation confirms the difference between the static information before the journey begins, and the dynamic information during the journey. The information at these different points of time that consumers need is not generally the same. (Par. 42)

Finally, the Directive 2001/14 needs to be interpreted in a way to facilitate reaching of the objectives envisaged under Regulation No. 1371/2007. (Par. 49) This suggests that rail undertakings should be entitled to real time data from the infrastructure manager. (Par. 52)

Wednesday, 6 June 2012

Who are the champions?

Consumer protection in the past few years grew significantly in importance. As a result the European institutions do not limit themselves to drafting new consumer legislation and supervising their implementations but try also to intervene whenever European consumers' interests could be endangered in more ad hoc matters. A recent example thereof is the creation of a new website that gives consumer tips to fans travelling to EURO 2012 games in Poland or Ukraine. This new website is accessible, e.g., from the UEFA EURO 2012 homepage and will be broadly advertised, e.g., in hotels in Poland. The idea is to give an overview to consumers travelling en masse to and from Poland of their rights and obligations in this country, e.g., when their luggage will get lost on the way to the games, or when the hotel service will not be as advertised.

"The Europe Direct Contact Centre services will answer any on-line query on general EU consumer rights in 23 languages while a consumer Infoline in English – operated by the Polish consumer organisation Federacja Konsumentów – will provide legal support to those who run into consumer problems in Poland." (European Commission and UEFA launch 'Consumer Tips' for fans travelling to EURO 2012)

The infoline should already by open and operate until 31st of July 2012. The free number from a Polish phone (either mobile or fixed-line) is: 800 007 707. From a foreign phone you should call (it's not free then!): 0048 228 27 5474.

ACTA under more fire

We have mentioned previously that the European Commission considered referring ACTA to the CJEU as potentially infringing fundamental rights (ACTA referred to the CJEU) and the criticism it has received from the European Data Protection Supervisor (ACTA endangers fundamental rights of the EU citizens). This Monday (5th of June 2012) the fourth committee of the European Parliament rejected the ACTA. Of course, the positions of these committees are not binding, which means that the main committee responsible for giving its recommendation to the EP - the International Trade Committee - can still issue such a recommendation. However, it is a strong sign of the controversies surrounding the adoption of the ACTA which the EP members cannot ignore.

To sum up: the Civil Liberties Committee issued concerns as to the lack of compliance of the ACTA with the EU Charter of Fundamental Rights, since it does not ensure full respect for private life or full protection of sensitive personal information; the Industry Committee pointed out a lack of balance between intellectual property rights, business freedom, protection of personal data and the freedom to receive or provide information; finally also the Legal Affairs Committee and the Development Committee voted against the recommendation. (ACTA now rejected by four EP committees)

London Calling: new roaming rules

On the 30th of May 2012, the European Council adopted a regulation on roaming on public mobile communications networks within the EU. We have already discussed this new legal act (Hello? Hello?...) so it's only necessary to mention that the official text will be published in the EU Official Journal of 30 June 2012. (Council adopts new roaming rules)

Between Scylla and Charybdis - Secola 2012 on principles and rules

Last Friday and Saturday, the majority of authors of this blog attended the Secola conference on 'Principles and specific rules in European contract law'. In the beautiful setting of the Aula Magna of the University of Messina (Sicily), different aspects of this theme were discussed. 

The speakers posed some intriguing questions on the role of principles in European private law and the possible future development of such principles, for instance in the context of the application of a Common European Sales Law (CESL).  These included:
- the concept of freedom of contract and its limits (Salvatore Patti)
- the role of the principle of proportionality in European private law - given its flexible nature, how can this principle facilitate access to the internal market and how does it affect the balancing of interests in private legal disputes? (Gary Low and Caroline Cauffman)
- the role of the principle of effectiveness - can Article 47 of the EU Charter of Fundamental Rights be applied to the review of national legal remedies, in order to upgrade remedies for the breach of EU law via a consistent interpretation of national laws? (Norbert Reich)
- general principles derived from the acquis communautaire (Elise Poillot)
- the role of principles in codification processes - to what extent does the proposed CESL require judges to make law and, in particular, do we expect the Court of Justice of the EU to fill in all blanks within CESL's scope? (Simon Whittaker)
- principles of law in soft law instruments, such as PECL and Unidroit (Jan Kleinheisterkamp)
- principles and rules - following a Dworkinian approach, to what extent can principles of European private law yield specific rules and legitimize the solutions to 'hard cases'? (Pietro Sirena and Yehuda Adar); in my opinion a very interesting approach, though it raises many questions (some of which I also struggled with myself in a paper prepared for last year's Utrecht conference on principles and law)
- the principle of efficiency and European contract law - why should the principle of efficiency be followed when drafting and applying measures of European contract law, such as the CESL? (Horst Eidenmüller); a perspective that raised eyebrows among some of my Amsterdam colleagues who attended the conference, for (social justice) reasons explained (to a certain extent) here and here
- unjustified enrichment (Carlos Ignacio Gómez Igüerre)
- good faith and reasonableness - submitting that both concepts match with a solidaristic view of (European) contract law, how can they be made operative in, for instance, the case law of the Court of Justice of the EU? (Emanuela Navarretta)

The proceedings of the conference are planned to be published in Secola's series of conference books.

Tuesday, 5 June 2012

Timeshare transposition final

The new Timeshare Directive, which replaces an older Directive from 1994 (Directive 1994/47/EC), was due to be transposed across the EU by February 2011. Unfortunately, many Member States failed to fulfill their transposition duties in 2011. This unfortunate situation changed on 31 May 2012, when the European Commission closed an infringement case against Spain on the Timeshare Directive (Directive 2008/122/EC) after the country notified the Commission of a new law (Decreto-ley) transposing the rules. The Commission also closed a case against the UK following its recent transposition of the Directive for Gibraltar. As the Commission also closed cases against Lithuania, Poland and Slovenia on 22 March, this means that all Member States have now transposed the Directive into their national law. After ensuring that all Member States have adopted the necessary measures, the Commission will, as a next step, carry out a thorough assessment of the overall quality and completeness of the transposition. More.

Special consumer jurisdiction not only for contracts concluded online: AG's opinion in CJEU case C-190/11 (Mühlleitner)

24 May 2012: AG's Cruz Villalón opinion in the CJEU case C-190/11 (Mühlleitner)

Some time ago we discussed two CJEU cases Pammer and Hotel Alpenhof (ECJ instructs businesses what NOT to publish on their website to keep operations domestic only...) in which matters of international private law that influence consumer protection were discussed. In the case Mühlleitner, once again a special jurisdiction in consumer cases is being discussed.

Daniela Mühlleitner lives in Austria and was looking online for a second-hand car for her private use. She filled in a form with the characteristics of a car she wanted on the website: and one particular link to an offer caught her interest. Upon clicking on that link, she was re-directed to a website of Ahmad Yusufi and Wadat Yusufi (the defendants). She contacted them by phone, was informed that the car chosen by her was no longer available but they had similar ones to offer. She agreed to receive an email with more information about available cars including photos. Moreover, she indicated to the sellers that she lived in Austria and it was not considered to be an obstacle in concluding a sales contract. Some time later she went to Germany and concluded the sale contract with the defendants. Soon afterwards, upon her return to Austria with the car, she discovered defects in it. Since she could no longer get in touch with the sellers, she started legal proceedings to claim re-payment of the sale price and damages. The Austrian courts did not believe they had jurisdiction over these proceedings.

As a reminder, article 15 (1) (c) of the Regulation 44/2001 declares that the courts of consumer's country of domicile could have jurisdiction if the seller conducted his activity in this country or directed his activities to this country. In case, Pammer and Hotel Alpenhof the CJEU indicated certain factors that should be taken into account in order to determine whether sellers directed their activity to consumers from other Member States.

The question in Mühlleitner case was whether article 15 (1) (c) of the Regulation should be applied in this case, i.e. whether it applies only in situations of contracts concluded at a distance.

The AG Cruz Villalón argues that the applicability of this article is not limited only to contracts concluded at a distance. (Par.12) Firstly, historical arguments are being raised - previously binding Treaty of 1968 contained a similar provision whose application was neither limited to distance contracts. (Par. 15) Moreover, official statements of the Council and the Commission as well as previous judgments of the CJEU (e.g., Ilsinger) determine that article 15 refers to a number of sales methods, among others also distance sales contracts concluded online. (Par. 20) Therefore, it is clear that the Regulation did not aim at limiting a number of consumer contracts to which article 15 and a special jurisidiction in consumer cases would apply. (Par. 21)

Friday, 1 June 2012

There must be a bank (account) for everyone?

Yesterday the Economic and Monetary Affairs Committee of the European Parliament took a potentially very important step towards effective inclusion of all European citizens in contemporary markets- By a vote of 36 to 2, the Committee has urged the European Commission to propose by January 2013 a European legislation establishing a legal right to a  basic bank account. 
The rapporteur said that having a basic payment account is nowadays necessary to lead a "normal" life. Given the importance of the subject and the reluctance of national legislators and (above all) private actors to proceed in the direction of universal access. legislative action should not be postponed. The proposal, however, does not seem to aim at imposing the establishment in all legal systems of a no-frills no-costs account; it could be questioned, as a consequence, whether the take up of basic accounts on the side of consumers would significantly increase as a consequence of European action.