Free medical assistance abroad not being enforced

The enforcement of European consumer protection rules is still less than ideal in many Member States. One of the benefits that was introduced for the Europeans was the European Health Insurance Card that enables Europeans to access free healthcare in public hospitals across the EU. This measure sounds very consumer-friendly, since, for examples, consumers travelling abroad for holidays and getting injured, while for example cycling or having (too much) fun in waterparks, could then get (more or less) immediate medical assistance without paying for it more than what their holidays cost. Unfortunately, it looks like one of the most popular holiday destinations in Europe - Spain - doesn't comply with the EU rules. Some of the Spanish hospitals refuse to accept the EHIC, which means that tourists still have to pay for medical help and only later may reclaim it from their insurance companies. The European Commission started now the infringement proceedings against Spain by asking Spain to provide more information on this issue. (EU warns Spain over hospitals' rejections of EU health card) In the meantime, European Commission could consider issuing more detailed information on how the EHIC is supposed to work to public hospitals (possibly through Member States), so that travelling Europeans did not have to face having to pay enormous medical bills while abroad. 

Unfair terms, ECJ reaffirms important principles

In two cases delivered today the Court of Justice had the chance to confirm its previous case law and add a new tile to the (ascertained) coverage of Directive 93/13.

To start with this last bit, in Asbeek Brusse and da Man Garabito v Jahani BV, the CJEU clarified that residential tenancy contracts concluded with professional landlords are also covered by the unfair terms directive.

In particular, the fact that the Dutch provision implementing the directive did not use a general term (  to identify the consumer counterpart (the English version is "seller or supplier"), but mentioned the "seller" (verkoper) instead, should not prevent the directive from applying to contracts which involve no sale.

As concerns the duties and prerogatives of courts faced with unfair terms, two important principles have been reaffirmed:

- first, on the ex officio nature of unfair terms control: appellate courts are not exempted from the duty to independently ascertain a term's unfairness under the Directive when they are allowed to act ex-officio to enforce public policy; in other words, the Directive and in particular its rules concerning the non-binding nature of unfair terms are equal to internal public policy rules;

- second, as concerns the consequences of unfairness, an effective implementation of the Directive requires that courts declare the terms wholly unbinding: reducing a penalty instead of considering it as never stipulated would "weaken the dissuasive effect on sellers and suppliers" (par.58) of the European rules.

This extension of ex officio control to second instance cases where the issue has not been raised in the first instance, was also reaffirmed in today's second case, Jőrös v Aegon. 

The most interesting part of this decision, though, concerns jurisdiction. The referring court asked in this case whether, having identified one term as unfair, it should proceed with a declaration of invalidity even though in principle the application of unfair terms control is demanded to a different and higher jurisdiction. 
After having paid lip-service to the Member States competence to "determine which court or tribunal has jurisdictions to hear disputes involving individual rights derived from European Union law" (par 50), the court  states that , once a court has found a term unfair, effective protection requires that the court "must draw all the consequences" from its finding. Thus, notwithstanding the national rules on jurisdiction, the "incompetent" court should still proceed to declare the term invalid and check whether the contract can still exist without that term. 

In both cases, the CJEU and the Advocate General agreed that there was no need to request an Opinion- which underlines how the Court considers the issues settled. On the other hand, the fact that cases keep coming in where the consumer (and her lawyer) did not seem to be aware of her rights under the (legislation implementing the) Directive seems to confirm the need for a judge-driven application of this branch of consumer protection.      

Keeping up to date on European regulatory private law

Would you like to receive more news about developments in European private law, such as e-mail alerts regarding recent judgments of the Court of Justice of the European Union?

Apart from having created a very informative website, the researchers conducting the ERC-funded project 'European Regulatory Private Law' at the European University Institute in Florence offer regular e-mail updates on the topics falling within the scope of their studies.

The project, which is coordinated by Professor Hans Micklitz, involves the study of a normative model that could shape a self-sufficient European private legal order in its interaction with national private law systems. Activities developed within this context include the distribution of quarterly monitoring reports and updates on preliminary references submitted by national courts, opinions rendered by the Advocate-Generals and judgments given by the Court of Justice on the day that they are published in the Official Journal.

In order to subscribe to the ERPL project's newsletter, please send an e-mail to: erpl@eui.eu

Food fit for Europeans

The European Parliament also negotiated a deal with the Council on new labelling rules and content of such consumers products as baby milk, foods for special medical purposes, low-calorie diets food. (see our previous post: Food for thought) What is interesting is that it was decided to leave out special rules on labelling of gluten and lactose information until another time, when consumer information about foodstuffs would be harmonised. Currently, there are no EU-wide rules on information about lactose-free products. (New rules for baby food, special diet food and low-calorie food) The vote on new rules will take place in June.

Trying for better clinical trials

Yesterday, the Public Health Committee endorsed new draft EU rules on clinical trials of new medicines. Since the past years showed a decline in the number of conducted clinical trials in the EU, there is a clear need to change the rules that could have been responsible for this (e.g. the existing Directive 2001/20 is said to unnecessarily increase bureaucracy, overlook the option of non-commercial clinical trials). The new rules are to increase the transparency by making it mandatory to publish detailed summaries in publicly accessible EU database, with full Clinical Study Reports published once a decision on authorisation is complete. There would be a new rule on compensating damages, pursuant to which low-risk clinical trials could be covered by the general compensation system of a health care system. Additional provisions would regulate the ethics of conducting clinical trials on certain patients. (Clinical trials: clearer rules, better protection)

Back to the data protection in the EU

Another controversial subject is the ongoing EU data protection reform. The EDPS just published his annual report for 2012 and warned the European Parliament not to bend to the pressure from industry and third countries to lower the existing level of data protection, but instead to ensure stronger and more effective protection of EU citizens. ('Smart, sustainable, inclusive Europe': only with stronger and more effective data protection)

The issue of personal data protection was also mentioned during the vote at the Culture Committee of the European Parliament on a report regarding advertising in the audiovisual media and the protection of minors. Current rules on advertising do not apply to the internet, therefore, the MEPs argue for an introduction of a new EU framework. The new rules could also protect EU citizens against any automatic profiling. (Towards a common legislative framework for audiovisual media and Internet)

The heat is on... new air passengers rights

Yesterday at the European Parliament the MEPs met with representatives of airlines and air passenger organisations to discuss new proposed rules for air passengers rights as proposed by the European Commission. (101 on air passengers' rights proposal) The Transport Committee's hearing was quite heated, as reported, since views differ drastically as to what air passengers should be entitled to. (Commission proposal needs serious fine-tuning, say MEPs) The Transport Committee will vote on the amended text on 15 November.

Plain packaging of tobacco products

Yesterday the Irish government has approved the drafting of legislation for generic packaging for tobacco, which means that Ireland will be the second country in the world, after Australia, to remove branding from tobacco product packaging. (Ireland's move to implement tobacco plain packaging must resonate in Brussels) 

The European Public Health Alliance (EPHA) just published a new Position Paper on Revision of the Tobacco Products Directive. (see our earlier posts: Smokers beware and Smoke-free EU?) EPHA claims that tobacco packaging is the main link between consumers and manufacturers and recommends to the Commission the adoption of an EU rule on mandatory plain packaging combined with health warnings (text and picture) that should cover 80% of both front and back of tobacco packages. It supports Commission's plans to regulate other nicotine containing products, like e-cigarettes, and argues for the prohibition of online sale of tobacco products as well as the use of all additives, including flavourings.

Financial complaints in the British Isles

The British Financial Ombudsman Service (FOS) published an annual report documenting its work in settling disputes between consumers and financial businesses (with issues ranging from mortgages and payday loans to mobile phone insurance or pet insurance). FOS is a free service for consumers and it's an independent organisation from the financial world. It is interesting to see that compared to the previous year an increase of 92% was noted in tackled cases. This data could suggest that consumers are more aware of their rights and more willing to complain or/and their trust in financial institutions decreased (this could be claimed due to spikes in complaints after financial scandals). On average, one in four initial inquiries went on to become a formal dispute (previous year: one in five) and in nearly half of these formal cases compensation was paid. The most of cases (74%) concerned complaints about the payment protection insurance (PPI) and four of the UK's largest banking groups accounted for 62% of all complaints. This data could point out continued failure of banks and other financial institutions to help consumers get the compensation they are entitled to. (Financial gripes reach 7,000 a day, says ombudsman)

"As levels of confidence in financial services have eroded, it is disappointing that we still haven’t seen any significant improvement in complaints handling. Too many financial businesses still seem unable to sort out problems themselves, without the ombudsman having to get involved." said Natalie Ceeney, chief ombudsman (Stronger consumer voice sees half a million people bring disputes)

Europe's drugs problem

An annual report was published today by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) on the state of the drug problem in Europe in the past year. (New European drug report out today - Europe's drugs problem in 'state of flux') When I compare the summary of this report with the one from the previous year it seems like nothing has changed: less heroin use, less injecting, somewhat less cannabis and cocaine use, BUT  more and more use of synthetic drugs. (see: Healthy week)

Proposal for a new Directive on Payment Accounts

We haven't had a chance yet to mention the new proposed Directive on Payment Accounts that is a response to the last year's results of public consultation on bank accounts (How to improve banking services). The Directive deals with three issues: comparability of payment account fees, payment account switching and access to payment accounts. We have discussed these issues fully in our previous post (see the above-mentioned link) but let's shortly discuss the measures introduced in the proposal. 

The new Directive would oblige all payment service providers to provide consumers with the same (minimum) set of documents: a fee information document on the most common services provided and the fees charged for each of them; a statement of fees charged during the previous twelve months for the services provided on the payment account; a glossary of terms used in relation to payment accounts (upon request). The increase in transparency would occur due to the usage of standardised forms and terminology, which should enable consumers to better compare various offers. Additionally, the new Directive would require Member States to set up at least one independent comparison website that would give consumers information on the fees charged by different payment service providers in the given Member State.

A smoother switching process for consumers who want to move their bank accounts from one service provider to another is another goal of the proposed Directive.  Therefore, firstly, consumers should be informed of such possibilities by their payment service providers. The consumer would be able to request his service provider to transfer all or some of the recurring payment orders (credit transfers, direct debits) to a new provider, and it would be up to the provider to organize it, free of charge, within 15 days (30 days if the switch is between different MS) - limiting the administrative burden of the consumer. This could be combined with the transfer of the remaining balance on the old account and its closure.

Finally, the new rules would allow consumers in Europe to open a basic payment account in any Member State, even if they are not residents of that Member State and regardless of their personal financial situation. At least one payment service provider in a Member State should provide an opportunity to open such a basic payment account (with a possibility of withdrawals, bank transfers and a debit card) to anyone who applied for it. Credit facilities would not constitute a part of such an account. (Commission acts to make bank accounts cheaper, more transparent and accessible to all + FAQ)

Travelling with our four-legged friends

The European Parliament approved a new regulation on the 'non-commercial transport' of pets last Thursday. The new legislation will change existing rules on pet passports and anti-rabies vaccination (that are mandatory for dogs, cats and ferrets) aiming at making it easier to travel with pets abroad, even if health requirements for pets remain quite strict. The passport would need to be issued by an authorised vet (like it is now) and specify the transponder code (if an animal has a clear tattoo, that's still valid, too), anti-rabies vaccination details and other information on pet's health. A young pet who had anti-rabies vaccinations but didn't get immunity yet would still be allowed to travel. (Parliament eases rules on cross-border pet travel) The regulation will still need to be adopted but with the consent of the Council and the Parliament it should not take too long.

Privacy online in a nutshell

Explaining online data control to newbies? Here an interesting video by the European Parliament TV channel...

Fireworks control

Yesterday, the European Parliament adopted the Commission's proposal to make the market for pyrotechnics articles subject to stricter rules by adapting the Directive 2007/23/EC on the placing on the market of pyrotechnic articles. This directive is the first one to be changed out of the package of nine product safety directives that have been presented by the Commission to the Parliament for adaptation (the others concern: non-automatic weighing instruments, measuring instruments, simple pressure vessels, lifts, explosives for civil uses, electromagnetic compatibility, low voltage electrical equipment and equipment used in explosive atmospheres). (see: Product safety improved in nine industry sectors) The aim of the revision is to make the use of fireworks (but also airbags, seatbelts, etc.) safer for consumers in the EU, due to stricter requirements for clearer labels and instructions in the language(s) of each Member State in which these fireworks are being sold. Only products who comply with these rules would be allowed to carry CE marking. Fireworks will be divided into four categories: 

F1 - age limit 12 years - for use in confined areas - with a very low hazard and negligible noise level;

F2 - age limit 16 years - for outdoor use in confined areas - with low hazard and low noise level;

F3 - age limit 18 years - for outdoor use in large open areas - with medium hazard and not harmful noise level;

F4 - age limit 18 years - for use only by persons with specialist knowledge - with high hazard and not harmful noise level.

Member States will be allowed to increase the age limits mentioned above.

Impact of the new ADR and ODR rules

Today the ECC-NET holds its annual conference in Dublin during which the impact and the implementation of the forthcoming ADR and ODR legislation will be discussed. (ECC-Net annual conference: EU consumers could save 22.5 billion euro) The Irish European Consumer Centre commissioned a report "The Implication of the Proposed ADR Directive for the Resolution of Consumer Disputes in Ireland" which is available online on their website.

"According to recent research, losses experienced by cross-border shoppers are estimated at EUR 425 million per annum. The European Commission has estimated that if EU consumers can rely on well-functioning and transparent ADR for their disputes, both national and cross-border, they could save around €22.5 billion a year, corresponding to 0.19% of EU GDP. The ADR Directive and ODR Regulation when implemented will allow business to consumer disputes to be settled fast, effectively and cheaply without going to court. Effective ADR offers both business and consumers a win-win situation encouraging consumers to spend secure in the knowledge that if something goes wrong it is easy for them to access redress while business will avoid the costs of going to court". said Dr. Ann Neville (Director of ECC Ireland)

EU patients' rights

Last week, on account of the European Patients' Rights Day, the European Commission listed 10 benefits that the European Union brings to patients. EU patients have a right:

1. to receive healthcare when visiting another EU country;

2. to be reimbursed for healthcare sought in another EU country;

3. to receive information on safety and quality standards in EU countries;

4. to be treated by qualified healthcare professionals;

5. to get a copy of their medical records;

6. to have their prescription recognised in all EU countries;

7. to be treated with safe and effective measures;

8. to be able to report suspected side effects of medicines;

9. to be treated with safe medical devices;

10. to benefit from common high standards of quality for blood, organs, tissues and cells.

Keeping European consumers safe

European Commission published an annual RAPEX report for 2012 "Keeping European consumers safe" (on the operation of the Rapid Alert System for non-food dangerous products). The comparison of the report with the one from 2011 shows an increase of 26% in reported alerts. The main products that raised issues of safety were clothing, textiles and fashion items (34%), toys (19%) with the main risks such as: chemical risks (e.g., in plastic dolls), risk of strangulation (e.g., in children swimwear due to drawstrings) and risk of injury. Once more, most products that were notified as posing risks to consumers came from China. (Stronger EU cooperation leads to higher consumer safety)

Chartering European consumer law

The European Commission recently published its annual report on the application of the EU Charter of Fundamental Rights in 2012. The report contains a considerable number of references to consumer protection, notably on the topics of digital content and cloud computing services (consumer information and data protection), health care (the CJEU's judgment in Deutsches Weintor), the enforcement of existing consumer protection Directives (timeshare, consumer sales, misleading commercial practices) and effective remedies (Art. 47 of the Charter).

More facts and figures are available on the Commission's DG Justice's website.

The application of the Charter to cases that are considered to be of a private legal nature under the laws of the Member States, furthermore, raises some interesting questions. For a discussion of some of those, I refer to a recent paper by Dorota Leczykiewicz (Horizontal effect of fundamental rights) and one of my own working papers (Unchart(er)ed territory: EU fundamental rights and national private law).

What the internet is doing to our brains

Those of you interested in consumer behaviour, more specifically in regard to digital consumer contracts, might also be interested in watching this short film about the internet's effects on behaviour and learning processes:

To withdraw or not to withdraw?

My colleague, and the founder of this blog, Joasia Luzak recently wrote an insightful paper on the pros and cons of giving consumers a right to withdraw from distance contracts: To withdraw or not to withdraw? Evaluation of the mandatory right of withdrawal in consumer distance selling contracts taking into account its behavioural effects on consumers.

The abstract reads as follows:

'The right of withdrawal was introduced to European consumer law as an exception to the general contractual principle of pacta sunt servanda. It has recently been upheld in the Consumer Rights Directive as a mandatory right for consumers concluding distance selling contracts. Among various assessments of this measure a comprehensive evaluation thereof from the point of view of consumers’ interests is lacking. Such an assessment is conducted in this paper with consideration of the effect that the right of withdrawal is likely to have on consumers. The yardstick for the evaluation of the current rules, as well as for suggesting a new approach is the increased consumer welfare, which takes into account consumers’ happiness and their lack of regret for entering into transactions.'

Interim injunctions to stop EMA from releasing non-clinical and clinical data

As we mentioned last month the Court of Justice was asked by two major pharmaceutical companies AbbVie (case T-44/13, T-29/13) and InterMune (T-73/13) to issue injunctions against the European Medicines Agency (EMA) to stop EMA from releasing certain non-clinical and clinical trial data until a final ruling is given by the Court on validity of such disclosure. The EMA's 2010 access-to-documents policy allowed it to release some of the information as part of marketing-authorisation applications. The EMA is considering whether to appeal the interim decision (EMA receives interim decisions of the General Court of the EU on access to clinical and non-clinical information). 

This is just a small part of a bigger battle to define the concept of 'commercially confidential information' in the EU. While the EMA and its supporters (over 30 statements of support have been given to the EMA from an impressive group of representatives of medical journals, scientific organisations, patient advocacy groups, academic institutions, research centres etc. - see a join letter of support) claim that transparency and openness of such information is not

only desirable but even required in order to enable proper scrutiny of EMA's recommendations on medicines. Lack of common access to that information may prevent effective monitoring of health claims and may endanger consumers' health.