Thursday, 26 September 2013

How to say 'I like you' in 24 languages, and why a European consumer lawyer might care

Today, 26th September, the European Day of Languages is celebrated. The initiative was launched in 2001 by the Council of Europe and the European Union to celebrate Europe's linguistic diversity, with its 24 official languages, about 60 regional and minority languages, and more than 175 migrant languages. More information on events organised in celebration of this day (such as mini-courses on European languages) is available on the Council of Europe's website and in today's European Commission newsletter.

Eurostat, furthermore, published the following data:

'European Day of Languages - Two-thirds of working age adults in the EU28 in 2011 state they know a foreign language - English studied as a foreign language by 94% of upper secondary pupils.
In the EU28 in 2011, 83% of pupils at primary & lower secondary level and 94% of those in upper secondary level general programmes were studying English as a foreign language. The second most commonly studied foreign language at both primary & lower secondary level and upper secondary level was French (19% of pupils in primary & lower secondary level and 23% in upper secondary), followed by German (9% and 21%) and Spanish (6% and 18%). The importance of English as a foreign language in the EU is also confirmed amongst working age adults. In the EU28, English was declared to be the best-known foreign language in 2011 amongst the population aged 25 to 64. Among those stating English to be their best-known foreign language, 20% responded that they spoke it at a proficient level, 35% at a good level and 45% at a fair level. Considering all languages, two-thirds of the total population aged 25-64 stated they knew at least one foreign language.'

Why languages are important for European consumer law is perhaps best illustrated by the case law of the Court of Justice of the EU. A recent example concerns the Court's judgment in Asbeek Brusse v. Jahani (discussed by Candida on this blog), in which the comparison of different language versions of the Unfair Terms Directive was decisive for answering a preliminary question on the Directive's scope:

'25 There is, however, a degree of discrepancy between the various language versions of that provision. Thus, the Dutch version of Article 1(1) of the directive states that the purpose of the latter is to approximate the national provisions relating to unfair terms in contracts concluded between a ‘seller’ (‘verkoper’) and a consumer. The other language versions of that provision use, for their part, an expression which is wider in scope to designate the other party to the contract with the consumer. The French version of Article 1(1) of the directive refers to contracts concluded between a ‘professionnel’ and a consumer. That wider approach is found in the Spanish version (‘profesional’), the Danish version (‘erhvervsdrivende’), the German version (‘Gewerbetreibender’), the Greek version (‘επαγγελματίας’), the Italian version (‘professionista’) and the Portuguese version (‘profissional’). The English version uses the terms ‘seller or supplier’.

26 It is settled case‑law that the need for uniform application and, accordingly, for uniform interpretation of a European Union measure makes it impossible to consider one version of the text in isolation, but requires that that measure be interpreted on the basis of both the real intention of its author and the aim that the latter seeks to achieve, in the light, in particular, of the versions in all other official languages (see, inter alia, Case C‑569/08 Internetportal und Marketing [2010] ECR I‑4871, paragraph 35, and Case C‑52/10 Eleftheri tileorasi and Giannikos [2011] ECR I‑4973, paragraph 23).

27 It must be observed in this connection that the term ‘verkoper’, used in the Dutch version, is defined in Article 2(c) of the directive in the same way as in the other language versions, as designating ‘any natural or legal person who … is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned’.

28 It thus appears that, beyond the term used to designate the other party to the contract with the consumer, the legislature’s intention was not to restrict the scope of the directive solely to contracts concluded between a seller and a consumer.'

For more on the topic of languages and the law, please refer also to the Amsterdam Circle for Law & Language.

Slow train - CJEU judgment in Case C-509/11 ÖBB-Personenverkehr

Today, the Court of Justice of the EU delivered its judgment in Case C-509/11 ÖBB-Personenverkehr AG. The case concerned the general terms and conditions used by the Austrian railways company, ÖBB, for transport contracts with railway passengers. These terms and conditions included provisions on compensation of the ticket price in case of delay. According to the national Rail Network Control Commission, ÖBB's terms and conditions were not in compliance with EU Regulation No 1371/2007 insofar as they excluded compensation in the following cases:

'–      where there is fault on the part of the passenger,
–      where a third party behaves in a manner which the carrier, in spite of having taken the care required in the particular circumstances of the case, could not avoid and the consequences of which he was unable to prevent,
–      in the event of circumstances not connected with the operation of the railway arising which the carrier, in spite of having taken the care required in the particular circumstances of the case, could not avoid and the consequences of which he was unable to prevent,
–      where services are restricted as a result of strikes, provided that passengers were adequately informed of these,
–      if the delay results from transport services not included in the transport contract.'

The CJEU was presented with the preliminary question whether, under EU law, a railway company may exclude its obligation to pay compensation for the ticket price in case of force majeure. In particular, the question was raised if carriers may rely on rules of international law which exempt them from liability in such cases.

In accordance with AG Jääskinen's opinion in the case, the Court holds that rail passengers are entitled to a partial refund of the price of their train ticket in the event of significant delay, even where that delay is attributable to force majeure. Rules of international law do not alter this, since these provisions are not applicable in the context of the liability regime established by the EU Regulation. Where the applicable rules of international law seek to reimburse passengers for damage or loss suffered as a result of the delay, the Regulation's purpose is to compensate passengers for the consideration provided for a service which was not supplied in accordance with the transport contract.

Monday, 23 September 2013

Equal property rights for registered partners and married couples

Another vote took place this month at the European Parliament with regard to new matrimonial property rules for international couples. (Simplifying property law for international couples) On 10 September the MEPs adopted a new resolution, recommending that the drafted legislation included the same property rights for registered partners as for married couples in case they separate and need to divide their properties. Original proposal of the Commission would enable married couples to choose which law should be applicable to their joint property (as long as there was a close connection), while registered partners would still be forced to accept the application of the law of the member state in which their partnership was registered. The resolution grants the same rights to registered partners as to married couples, however, their choice of law would not be valid if they choose for a law of a country not recognising registered partnerships. (MEPs call for equal property rights for registered partners and married couples)

More support of public access to clinical trials data

A short update to our posts (last one: Who's keeping the score?...) on the dispute between the European Medicines Agency (EMA) and two major pharmaceutical companies (AbbVie and InterMune) regarding transparency and sharing of clinical trials data: the European Consumer Organisation (BEUC) has been accepted to intervene on the EMA's side in the procedures in front of the Court of Justice. (Consumers to support public access to clinical trials data in Court)

Friday, 20 September 2013

Origin labelling

In 2011 the European institutions adopted the Regulation 1169/2011 on the provision of food information to consumers. The new rules on food labelling are supposed to be applied only as of December 2014 (or as of December 2016 when nutrition declarations are concerned), but since it takes awhile for the industry to change its packaging and marketing strategies we should start hearing more and more about the implementation' problems of these rules soon. Indeed, this week UK's Farmers Guardian reported on British worries related to the labelling of meat products, e.g., that the new labelling won't account for the animal's country of birth but only country of reading and slaughter, which means that in case of a Dutch cow or pig being brought to the UK a few months before slaughter, the label could just identify it as a British cow. (New EU meat labelling laws 'could mislead consumers') Our readers may be interested in the Q&A document from January this year, where an expert Working Group answered certain questions as to what is expected from the industry sector and how new rules would impact consumer protection.

Hazardous resolution

On 10th of September the European Parliament adopted a resolution "Online gambling in the internal market" calling upon the European Commission to better regulate online gambling in the EU. As we have mentioned before, online gambling is one of the fastest growing services in the EU. (see post: Easy money) Currently, online gambling' rules differ across the EU, since many European countries have different approaches to gambling in general due to morality issues and different ideas on what's needed to protect public order. It is not quite clear to me what measures the EP expects the Commission to take, since on one hand they argue for more harmonisation of online gambling in the internal market, but on the other they insist that Member States should be able to uphold aforementioned national barriers to market entry. What could be optimised, according to the MEPs, is a good exchange of information among the Member States that could contribute to the European list of banned operators (black list) or licensed operators (white list), European codes of conduct, uniform tax rates, and uniform recognition rules so that operators recognised in one Member States could conduct business in other Member States, as well (unless these specific, national market barriers would oppose that?). Another curious point is the call for a European ban of certain types of wagers that pursuant to the MEPs are more prone to lead to fixing risks in sports, e.g., live sports betting, wagers such as awarding yellow cards, throw-ins, corner kicks etc.

Thursday, 19 September 2013

Diligence cannot undo unfairness - CJEU judgment in Case C-435/11 CHS Tour Services

This morning, the Court of Justice of the EU handed down its judgment in the CHS Tour Services case. For a summary of the facts of the case and the Advocate General's opinion, I refer to Bram's earlier post on this blog ('Opinion AG Wahl in CHS Tour Services on Unfair Commercial Practices'). The question referred to the CJEU is whether the requirement of 'professional diligence', laid down in Article 5(2)(a) of the Unfair Commercial Practices Directive, should be understood as an independent condition for assessing the misleading nature of certain commercial practices (in this case: a tour operator's exclusivity statement in brochures for skiing lessons and snow holidays for groups of schoolchildren).

The Court observes that:

'(...) Article 5(4) of the directive categorises commercial practices as unfair where it is established they are misleading or aggressive ‘as set out in’, Articles 6 and 7 and Articles 8 and 9, respectively, of that directive, that expression suggesting that the determination of whether the practice concerned is misleading or aggressive depends only on the assessment of the practice in the light of the criteria set out in those latter articles alone. That interpretation is supported by the fact that Article 5(4) does not contain any reference to the more general criteria set out in Article 5(2).' (para. 39)

'Furthermore, Article 5(4) begins with the words ‘[i]n particular’ and recital 13 in the preamble to the Unfair Commercial Practices Directive states that ‘[t]he … general prohibition established by this Directive … is elaborated by rules on the two types of commercial practices which are by far the most common, namely misleading commercial practices and aggressive commercial practices’. It follows that the basic rule of that directive, that unfair commercial practices are to be prohibited, as laid down in Article 5(1) of the directive, is given effect and concrete expression by more specific provisions with a view to due account’s being taken of the risk posed to consumers by the two cases that arise most frequently, namely, misleading commercial practices and aggressive commercial practices.' (para. 40)


'As regards, more particularly, Article 6(1) of the Unfair Commercial Practices Directive, at issue in the case in the main proceedings, it is to be stressed that, in accordance with the wording of that provision, the misleading nature of a commercial practice derives solely from the fact that it is untruthful inasmuch as it contains false information or that, generally, it is likely to deceive the average consumer in relation to, inter alia, the nature or main characteristics of a product or a service and that, therefore, it is likely to cause that consumer to take a ‘transactional’ decision that he would not have taken if there had been no such practice. When those features are to be found, the practice is to ‘be regarded’ as misleading and, therefore, unfair pursuant to Article 5(4) of that directive, and it must be prohibited in accordance with Article 5(1).' (para. 42)

'(...) having regard both to the wording and to the structure of Articles 5 and 6(1) of that directive, and to its general scheme, a commercial practice must be regarded as ‘misleading’ within the meaning of the second of those provisions if the criteria set out there are satisfied, and it is not necessary to determine whether the condition of that practice’s being contrary to the requirements of professional diligence, laid down in Article 5(2)(a) of that directive, is also met.' (para. 45)

'The interpretation above is the only one capable of preserving the effectiveness of the specific rules laid down in Articles 6 to 9 of the Unfair Commercial Practices Directive. Indeed, if the conditions for the application of those articles were identical to those set out in Article 5(2) of the directive, those provisions would have no practical significance, even though they are intended to protect the consumer from the most common unfair commercial practices (see paragraph 40 of this judgment).' (para. 46)

Accordingly, the Court holds that:

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that, if a commercial practice satisfies all the criteria specified in Article 6(1) of that directive for being categorised as a misleading practice in relation to the consumer, it is not necessary to determine whether such a practice is also contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the directive in order for it legitimately to be regarded as unfair and, therefore, prohibited in accordance with Article 5(1) of the directive.

Wednesday, 18 September 2013

Capita Civilologie

Today at the Academiegebouw in Utrecht a promotion of the book "Capita Civilologie. Handboek empirie en privaatrecht" took place. 'Civilologie' is a new term describing research that is not limited to pure, traditional, dogmatic legal scholarship but includes insights from other disciplines. The book is worth mentioning here for many reasons, not the least since two of this blog's authors have written a chapter each for this book. If you read in Dutch you should look up Bram's chapter (Chapter 6) evaluating the 'average consumer' standard in misleading commercial practices and Joasia's chapter (Chapter 10) assessing the right of withdrawal in distance selling contracts. The book is published by Boom Juridische Uitgevers and edited by W.H. van Boom, I. Giesen and A.J. Verheij. For any of our readers interested in how insights from empirical studies could be included in legal scholarship, it is worth to look into these 1050 pages describing various forms and areas of such research. This book is a second edition of the previous book "Gedrag en Privaatrecht" with some new chapters and some updated chapters from the first edition and many of its parts describe various consumer behaviour and consumer law issues.

Legal highs

Yesterday the European Commission presented a new package proposal with respect to regulating 'legal highs' (new psychoactive substances used as alternatives to illicit drugs). (see our previous post on the increased drugs problem in the EU: Europe's drug problem) The package includes a proposal for a Regulation on new psychoactive substances and a proposal for a Directive amending the Framework Decision 2004/757/JHA on illicit drug trafficking. The Regulation would enable information exchange on, risk assessment of and restriction measures applied to harmful new psychoactive substances. The Directive would facilitate easier and faster notification and registration of new psychoactive substances that pose severe risks, so that the criminal law provisions on illicit drugs could apply to them. (FAQ: tackling psychoactive substances across Europe)

The European Commission responded thus to the growing problem of increased consumption of new psychoactive substances in Europe (their number tripled between 2009 and 2012), which due to online trade easily cross borders in the EU. (European Commission takes decisive action against legal highs) The proposed changes will allow for a ban on a substance to be issued within 10 months (instead of current 2 years). In particularly grave circumstances it will be possible to withdraw substances immediately from the market for one year. Moreover, the European approach to such substances would be more proportional, since the current binary evaluation (either full market restrictions and criminal sanctions apply or not) would be toned with a graduated approach, with the severity of sanctions depending on the substance's danger level.

Bad MEPs

As Chantal mentioned already, the European Parliament's JURI Committee approved of the CESL's proposal yesterday. BEUC's reaction to this news was instantaneous and unsurprising. In a statement from yesterday BEUC reproached MEPs as making a bad decision for European consumers, since the 'optional' character of the CESL is seen as increasing complexity for consumers, legal uncertainty and allowing businesses to circumvent national protection measures, therefore, reducing consumer protection. This is an unsurprising result, since even in the progress chart mentioned in the previous post today the European Commission's proposal on the CESL was evaluated as a 'bad' one for consumer protection.

"We hope that MEPs and national governments will stand firm in ensuring just before the Parliamentary elections that the thus far successful history of EU consumer legislation is not devalued. Important national rights should not be undermined." said Ursula Pachl, Deputy Director General of The European Consumer Organisation. (BEUC Statement on JURI committee CESL vote)

Less than a year to graduation - BEUC grading the EC and the EP

The European Consumers' Organisation (BEUC) published very interesting progress charts, separately for the European Commission (X/2013/059) and for the European Parliament (X/2013/060). Both charts are entitled: "Time is running out to hit the target", since the current Commission's and Parliament's mandates end next year and there is not that much time left to influence EU policies. The progress charts put together all the achievements of these EU institutions from the past four years and evaluate them as either 'very good', 'good', 'middling' or 'bad'. Additionally, the areas in which further 'action (is) needed' are mentioned, suggesting what could still be achieved in the remaining time. The achievements are divided into following categories: digital, consumer contracts, energy, financial services, food, health, redress, safety & sustainability.

See here for the report on the Commission, and here for the report on the Parliament.

This is our summary thereof:

CESL moving forward

Yesterday, a large majority of the European Parliament's Legal Affairs Committee (JURI) voted in favour of its rapporteurs' report on the proposal for a Common European Sales Law (CESL). Furthermore, the committee negotiators received a mandate to start negotiations with the Council.

The CESL is meant to facilitate cross-border trade in the EU by providing businesses and consumers with a set of contract law rules they may choose to apply to their sales agreements. JURI is backing the adoption of such an optional instrument for distance contracts, in particular those concluded online. Its amendments to the proposed CESL have been inspired by the European Law Institute's suggestions (on which we reported earlier, 'ELI on CESL').

For more information on the CESL and JURI vote, please refer to the press releases issued by JURI and the European Commission.

Tuesday, 17 September 2013

European Parliament intends to strengthen air passengers' rights

Yesterday the European Parliament's Transport Committee debated on the European Commission's proposal for a new Regulation No 261/2004 (see our previous post: Passenger rights, work in progress and 101 on air passengers' rights proposal). There is a possibility that the rules would be made more consumers-friendly (see the report). 

As far as monetary compensations are concerned, the Commission's proposal intended to allow passengers to claim compensation in case of a delay on European flights and short international flights (up to 3500 km) only if the delay was longer than 5 hours, for flights of 3500km-6000km when the delay was longer than 9 hours and for the remaining flights when the delay was longer than 12 hours. The Parliament's rapporteur argues for keeping the 3 hours delay standard as allowing for compensation claims of 300 Euro (for flights up to 3500km), and for all remaining . flights the compensation of 600 Euro would be granted for delays of at least 5 hours (Amendment 47-49; 58-59) As a reminder, currently passengers may claim compensation for a delay longer than 3 hours in the following amounts: 250 Euro - when the flight was short (up to 1500 km), 400 Euro - when the flight was for a distance between 1500km and 3500km, and 600 Euro for all remaining distances. Additionally, the limit of 100 Euro per night per person for accommodation was raised to 125 Euro, in case the flight cannot take place due to extraordinary circumstances and passengers need to stay overnight at their departure point. More importantly, the Parliament's rapporteur believes that there should not be a limit to the number of nights that would be compensated, unless the passenger organizes his accommodation himself (and only then the limit is set at 3 nights). (Amendment 69)

Moreover, the Parliament's rapporteur suggests that the definition of a 'ticket price' should encompass the following: "The ticket price always includes costs for the check-in, the provision of the tickets and the issuing of the boarding card, the carrying of a minimum luggage allowance and essential items, as well as all costs related to payment, such as credit card costs". (Amendment 25) The definition of 'denied boarding' should encompass cases in which the flight's departure time has been moved forward, due to which passengers might have missed that flight. (Amendment 23) On the other hand, the definition of 'tarmac delay' was changed so that the delay is not counted from the start but rather from the end of the boarding process of passengers. (Amendment 27) The Regulation's scope excludes such air travel that allows passengers to travel for free or at a reduced fare not available to public, which doesn't, however, apply to air tickets issued under a frequent flyer programme or other commercial programmes of air carriers. (Amendment 29) This provision could exclude such passengers from its benefits who have won free air tickets in competitions.

The Parliament's review upholds the Commission's proposal to grant passengers a right to use their return ticket in case they have not take the outward journey, also in case when they were denied boarding on the outward journey. (Amendment 33) The right to have the spelling mistakes on a boarding card/ air ticket corrected is upheld as well - up until 48 hours before departure without any additional charge. (Amendment 34)

Amendment 37 intends to strengthen information rights in case of flight cancellation by stating that passengers should be fully informed of their rights and of possible alternative transport modes. Amendment 38 clarifies the definition of 'extraordinary circumstances' that allows air carriers to forgo payment of compensation by clearly insisting that two conditions need to be fulfilled cumulatively: the cancellation is caused by extraordinary circumstances AND it could not have been avoided even if all measures had been correctly taken. As the rapporteur states: "The word ‘correctly’ leaves less room for interpretation regarding all measures that need to be taken in order to avoid cancellation."

The Commission's suggestion that contingency plans should be created by airport management for cases of multiple flight cancellations has been adjusted in favour of consumers, as well. Such plans would now have to be created for airports with an annual traffic of 1.5 million passengers (instead of originally suggested 3 million). (Amendment 39) Additionally, the proposal suggests that air carriers provide proof of sufficient insurance to ascertain that they would be able to reimburse passengers in case of their insolvency. (Amendment 42)

The passengers right to disembark the plane when the flight was delayed for at least 5 hours on the tarmac has been strengthened by reducing the time allowing for such disembarkation to 2 hours. (Amendment 51) The passenger who misses a connecting flight as a result of delay etc. of the previous flight, should be offered assistance, compensation etc. by the air carrier of the delayed flight. (Amendment 52) The passengers are also granted a new right to organise their own re-rerouting and then to claim compensation therefor if the air carrier fails to offer the choice of re-rerouting . (Amendment 65)

The Transport Committee will vote on this report on 14 November. (Strengthening air passengers' rights while providing legal clarity to airlines)

Friday, 13 September 2013

One step forward towards a mortage credit directive

On Wednesday, the European Parliament gave broad support to the pending proposal for a Mortgage Credit Directive, which, if everything works according to plans, should come into force in the spring of 2014. 

While not all loan-seekers will be enthusiastic with this intervention, the directive is aimed at two quite important objectives:
1) facilitating the creation of a single market for mortgage loans;
2) preventing the recurrence of crises in the housing market such as the ones that hit fiercely Spain and Ireland over the last few years.

How should these objectives be achieved? 

First, and this is the part credit consumers might be worried about, the Directive introduces European standards for creditworthiness assessments: the effect of this on consumers is likely to vary according to the state where they live. At the same time, better information and decision-making are pursued by the introduction of a standard information sheet, which should make comparison easier, and a 7-day reflection period. 

The directive also foresees a general right to early repayment, which the member states might subject to the payment of a fair compensation to the credit provider. 

As concerns brokers and intermediaries, while the directive  imposes a set of rules of conduct (concerning inter alia pay structure and the obligation to provide prospective lenders with "worst-case-scenario" information) meant to prevent conflicts of interests and encourage "fair" lending practices, new chances will be provided by the introduction of a "pass-porting regime"- i.e. the chance of seeing one's trade authorization recognized in the whole Union. 

The directive also introduces "good practices" on the sensitive issue of arrays and foreclosures, encouraging banks to consider their debtor's position carefully before undertaking irreparable actions and asks states to make sure that incorporation of the asset takes place at "best effort" price. 
In addition, national rules of contract law might have to be adapted to provide parties the possibility to stipulate that "returning" the collateral- the house- will suffice to extinguish the debt. 

Thursday, 12 September 2013

Major telecom sector reform

Yesterday the European Commission adopted a major and quite controversial telecom sector reform, which is supposed to put an end to mobile phone roaming charges. (Commission proposes major step forward for telecoms single market) As Jose Manuel Barroso, European Commission's President, announced a real single market in the telecommunication and digital sector is vital to ascertain that Europe is not left behind. A single market for goods is not sufficient any longer. If the proposal is accepted by other European institutions, consumers travelling within European borders as of July 2014 could be offered 'roam like at home' packages to cover all Europe or be allowed to subscribe to separate roaming service providers with the same SIM card. The goal: ending roaming charges for incoming calls. In order to achieve that, European Commission intends to permit all telecom companies to operate in any Member State, without the need to apply for national permits. In exchange, telecom companies will need to cap international outbound calls the same way as a long-distance connection in the country where from consumer's phone subscription originates (not more than 0.19 cents per minute). Already telecommunication companies are voicing their displeasure with this proposal, saying that it goes too far. Aside roaming the European Commission announced its plans to further ensure net neutrality - by better coordination of frequencies to spread 4G networks in Europe, making sure that specialist net service providers do not restrict access to the network for their rivals etc. Finally, the proposal touches upon the consumer contracts' complexity and calls for the use of plain-language in contract drafting, facilitating switching of telecom providers and ending the fixed term contracts for mobile phones (of 2 years). (Europe lays out its most ambitious reform plan yet: no more roaming premiums, enforced net neutrality, and more)

Tuesday, 10 September 2013

Solvency II on hold

Another new legislative proposal that has been pushed on the European Parliament's agenda is the suggested amendment to Solvency II Directive 2009/138/EC from 2009 (through Omnibus II Directive). On the European Commission's website we may still read that the proposed changes are likely to apply as of 1 January 2014. However, the vote in the European Parliament has been delayed by five months until 11 March 2014 and since by then the new European elections would be approaching, the election preparations may further delay the implementation of these rules ("Solvency II kicked into long grass"). The proposed changes were supposed to update the existing rules for the insurance companies regarding their supervision, financial reporting, finance techniques and risk management, among others making sure that consumers are protected due to insurers keeping enough money in reserve, proportionally to the risks they were underwriting. Since insurance companies do not hide their unhappiness with this proposal, on top of the news from the tobacco world, it is not hard to imagine that some heavy lobbying took place also in respect of this proposal to delay its adoption

On lobbying in Brussels

It is not a secret that international companies lobby heavily the European institutions in Brussels. However, the scale of that lobbying may astound even the most cynical of our readers. The Guardian reported last week on documents leaked to The Observer from the international tobacco giant - Philip Morris, which reveal what measures it undertook to prevent new EU regulations regarding health warning labels on cigarettes' packaging from becoming reality ("Tobacco giant Philip Morris 'spent millions in bid to delay EU legislation'"). We have previously reported on the proposal to change existing labelling rules in order to make cigarettes even less attractive to European consumers (Plain packaging of tobacco products; Smoke-free EU; Smokers beware). This week the European Parliament was supposed to vote on the new law that would review the existing 2001 Tobacco Products Directive (in our previous posts we've discussed the proposed changes), however, the vote has been postponed until 8 October. You could think that a month should not make a difference, however, if the revisions of the Directive are not adopted by January 2014 they may not be adopted at all, since in January the presidency of the European Union goes from Lithuania (pro-regulation of stricter tobacco products measures) to Greece (against-regulation). This delay in the legislation process is definitely a win for the lobby sector in Brussels, and no wonder since according to the Guardian just Philip Morris International (PMI) employed 161 people (!) to oppose the proposed changes. The employees of the PMI met at least once with 233 MEPs (31% of the total) and spent almost 1.25 million GBP in a year for these meetings. I was less surprised to find out that PMI commissioned academic and economic studies to promote its claims and give negative opinion to European studies. Knowing what a hard battle is being fought behind the scene, I am even more interested in following the fate of the proposed review.

Friday, 6 September 2013

"Private Law and the Basic Structure of Society" conference

Our colleagues Lyn Tjon Soei Len and Josse Klijnsma are organising a private law (theory) conference on 31 January 2014, 8:30-18:00: "Private Law and the Basic Structure of Society". The conference participants will discuss private law theory through political philosophy and political philosophy through private law theory, seeking to broaden their understanding of the relationship between social justice and private law. Among the conference presenters there are many famous private law theoreticians and at least one of the speakers will discuss consumer law: Horst Eidenmüller will present a paper 'Against False Settlement: Designing Just and Efficient Consumer Rights Enforcement Systems'. The conference is free of charge and the registration has just opened.

Thursday, 5 September 2013

Rights and remedies - AG Mengozzi's opinion in Case C-413/12 ACICL v. Anuntis

While EU law on the one hand requires Member States to provide effective remedies for the protection of Union law (Article 19 TEU), on the other hand it shows respect for national rules of procedure that fall outside of the scope of EU competences. This raises the question how a balance should be struck between effective protection of European rights and national procedural autonomy. In the field of European consumer law, accordingly, the Court of Justice of the EU is regularly asked to assess whether national laws offer adequate means to enforce consumer protective rules. Advocate-General Mengozzi today delivered his opinion in a case of this type, namely that of the Asociación de Consumidores Independientes de Castilla y Léon (ACICL) v. Anuntis Segunda Mano SL (not yet available in English).

The case concerns a claim of the regional consumer organisation ACICL against the Anuntis company to have some of the latter's general terms and conditions (as used on its website) declared void because of their unfair nature, and to impose an injunction against Anuntis to prevent further use of these terms. In first instance, the judge in Salamanca who was presented with the dispute held he was not competent to hear the case, since the relevant rules of procedure stipulated that the claim should be brought before the competent court in the place of residence of the defendant. The judge added that this decision was open to appeal, even if the national law did not provide any rules to that effect. The court hearing the appeal considers this interpretation of Spanish law to raise the following preliminary questions:

'Does the protection afforded to the consumer under Council Directive 93/13/EEC on unfair terms in consumer contracts allow the Audiencia Provincial, as a national court of appeal, to hear and determine, in spite of the absence of any relevant domestic legal rule, the appeal brought against the decision of the court of first instance assigning to a court of the place where the defendant has its address territorial jurisdiction to hear and determine the action for an injunction brought by a consumer association of restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?

Must Articles 4, 12, 114 and 169 of the Treaty and Article 38 of the Charter of Fundamental Rights of the European Union, read in conjunction with Directive 93/13 and the case-law of the Court of Justice relating to the high level of protection of the interests of consumers, as well as to the practical effect of directives and the principles of equivalence and effectiveness, be interpreted as meaning that the court of the place where that association has its address, and not the court of the place where the defendant has its address, is to have territorial jurisdiction to hear and determine an action for an injunction against the use of unfair terms, to protect the collective or general interests of consumers and users, brought by a consumer association with restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?'

AG Mengozzi is of the opinion that the relevant procedural rules in this case survive the Court's normal 'effectiveness and equivalence' test. In casu, the test boils down to one on effectiveness only, since the equivalence of the handling of cases under EU law and under national law is not contested. As regards the effectiveness of the Spanish rules of procedure that are at stake here, the AG observes that these rules do not completely prevent ACICL's access to justice and can, therefore, not be considered to make the enforcement of EU rights 'impossible or excessively difficult'. ACICL's financial difficulties to pursue a claim in a different region are of no relevance here, according to the AG, since national rules of procedure are based on objective considerations regarding the costs of litigation rather than on subjective financial problems of litigating parties.

As regards the second question, AG Mengozzi expresses doubts concerning the CJEU's competence to rule on this point, since it will lose its practical relevance after a negative answer is given to the first question. Still, he adds that also on this matter no fundamental problems of effective protection of EU rights are to be foreseen, taking into account that EU law does not prescribe that consumer protection (including rules on jurisdiction) should be extended to consumer organisations.

Relatively little attention is paid to the national court's reference to the EU Charter of Fundamental Rights. Concerning effective remedies in EU law, legal scholarship has suggested that Article 47 of the Charter might provide a framework for improving the (individual and collective) enforcement of consumer rights. For more on this topic, I refer to one of my working papers, which contains further references to the work of, among others, Norbert Reich and Hans Micklitz.

Wednesday, 4 September 2013

Master of European Private Law, University of Amsterdam

The new academic year started this week and the Law Faculty of the University of Amsterdam is full of life again. For any readers of ours who are still working on their law degrees, you may be interested in our international, English-speaking master program: European Private Law. The next application deadline is 1 April 2014, so there is still some time to gather all the documents, to fill out all the required forms (available as of December 2013) and to improve your English. I might see you then in my European Consumer Law course next fall.

The faculty in the summer and in the winter:

Monday, 2 September 2013

Personalised service wanted, preferably without having to share personal data

A new worldwide survey conducted by Infosys on consumers attitude to sharing their personal data shows an interesting pattern that has developed in past years. On the one hand, consumers are willing to share their data online with doctors, banks, retailers - in order to get better service. On the other hand, consumers want to share only particular personal data and only upon certain conditions being met. The contradictions in the reasoning are clear - while 78% of consumers feel that they would positively respond to personal, targeted ads, only 16% is willing to share social media profile information; while 63% consumers would like their banks to inform them about their account and transactions through alerts to mobiles/smart phones, only 32% share information on these devices with any frequency; moreover, while 88% of consumers declare more trust to doctors who have online access to their medical files, only 56% would be willing to share personal medical history. (Consumers worldwide will allow access to personal data for clear benefits, says Infosys study)