Thursday, 30 June 2016

Public consultation on the impact of national civil procedure laws

Parallel to the Fitness Check of EU Consumer and Marketing Law (on which we have reported earlier) the impact of domestic laws of civil procedure is also currently under review. The study has two strands: the impact of national laws of civil procedure on mutual trust and free circulation of judgments, and the impact of these laws on the enforcement of consumer rights derived from EU law.

The EU Commission has awarded this project to an international consortium headed by the Max Planck Institute Luxembourg. The Institute has launched a public consultation as part of the study, and encourages consumers, lawyers, judges, academics, consumer protection associations, business/trade associations, dispute resolution facilitators, and those working in other legal professions are to respond. The consultation involves two questionnaires available in six languages that is accessible here.

Apart from the questionnaire, the Institute also appreciates any help in giving further insights into the topics covered. Anyone who can offer help in this regard can leave their contact details for an interview at the end of the survey.

Monday, 27 June 2016

Handbook on access to justice in Europe

In partnership with the European Court of Human Rights (ECtHR), the EU Agency for Fundamental Rights (FRA) has published a handbook which highlights and summarises the key principles in the area of access to justice, in particular those developed under Article 47 of the EU Charter of Fundamental Rights (EUCFR) and Articles 6 and 13 of the European Convention on Human Rights (ECHR). The handbook is meant to raise awareness and knowledge about the different avenues available to access justice.

Access to justice is a core fundamental right according to the EUCFR and a human right under the ECHR. Access to justice enables parties whose rights have been infringed to effectively enforce their rights and obtain a remedy. The handbook provides an accessible summary and analysis of the relevant case law of the EU Court of Justice and the ECtHR, supplemented by – where available – national jurisprudence, on key topics in the area of access to justice.

With respect to consumer law, the handbook refers to EU initiatives on ADR in the field of consumer protection, as well as specific remedies for consumers.

Thursday, 23 June 2016

Rules on compensation for flight downgrades - CJEU in C-255/5 Mennens

Mr Mennens' story might sound as much ado about nothing to many of us. He booked a series of flights with Emirates airlines, some in first and some in business class, and received a joint ticket specifying all flights and an all inclusive price for all of them, instead of individual prices for each flight. On his first flight from Dusseldorf to Dubai he was downgraded from first to business class (which lowered his expected flight comfort). As a result, he requested reimbursement of 75% of his ticket price, but Emirates reimbursed only 15% thereof.

The difference concerned interpretation of Article 10(2)(c) of Regulation No 261/2004. In case a passenger is downgraded on a flight outside the EU exceeding 3500 kilometres, 75% "of the price of the ticket" is to be reimbursed to the passenger. Mr Mennens requested payment of 75% of the total price mentioned on his ticket, while the airlines claimed that since he was downgraded only on one of many flights mentioned on the ticket, 75% reimbursement should be calculated considering the individual price of that one flight. Moreover, the airline claims that the percentage should apply to the price exclusive of taxes.

The CJEU notices that downgrading of passengers on one flight has no impact "on the services agreed upon for any other flights which the ticket permits that passenger to take" (Par. 24) and that "Article 10(2) of the Regulation aims to compensate a specific inconvenience, related to a given flight and not to the transport of the passenger as a whole" (Par. 28). This means that the passenger should not expect to receive reimbursement of 75% of the "overall price of the transport to which that ticket entitles him" (Par. 29).

How to know what is the individual price of the flight if it is not mentioned on the ticket? "The basis should be the part of the price of the ticket corresponding to the quotient resulting from the distance of the flight in question and the total distance which the passenger is entitled to travel". (Par. 30) Moreover, if the taxes and charges for the flight are not dependant on the class for which the ticket was issued, they should not be included in the calculation of the price of the flight, for which the reimbursement is to be given (Par. 38-42).

Thursday, 16 June 2016

Veto to caffeine health claims on energy drinks?

When you are working or studying hard, drink too much coffee on a daily basis, you might be tempted to reach for a caffeine-filled soft drink to give yourself an energy boost. These drinks often claim to help with energy levels, concentration, inspiration, adding wings etc. Since the main consumers of these drinks are teenagers and young adults (68% of adolescents drink them regularly) and these drinks often contain a lot of sugar (up to 27g of sugar, 80g of caffeine in a 250ml can), MEPs expressed a concern as to such 'health claims' being placed on the labels. (Health Committee MEPs ask Parliament to veto energy drink 'alertness' claims). In a resolution adopted yesterday the MEPs asked the Parliament to veto the Commission's proposal to add health claims on caffeine to the approved health claims list. While the Commission excludes from the proposal products for children and teens, energy drinks would not qualify as such.The MEPs are keen to correct this omission.

Enforce your passenger rights! - EC interpretative guidelines on air passenger rights

Before the upcoming summer holidays the European Commission has adopted new guidelines on the air passenger rights, which guidelines are supposed to fill in the existing gaps and facilitate better enforcement of these rights (Commission wants better enforcement of rules ahead of summer holidays). Since the new air passenger regulation has not yet been finalized, these guidelines are clearly meant to provide another temporary fix, reconciling often far-reaching in its interpretation of Regulation No 261/2004 judgments of the CJEU and its provisions. 

Personally, I'm particularly happy with the clarification (repetition) of the rules on the compensation due to passengers who might have had a slight delay, but as a result missed their connecting flight and are significantly delayed in reaching their final destination. I know firsthand that airlines keep on claiming that since the original delay was less than 3 hours, the compensation is not due, especially if the connecting place was outside the EU and the carrier is a non-EU carrier. Point vii of the Guidelines clearly states:

"In accordance with Article 3(1)(a), passengers who missed a connection within the EU, or outside the EU with a flight coming from an airport situated in the territory of a Member State, should be entitled to compensation, if they arrived at final destination with a delay of more than three hours. Whether the carrier operating the connecting flights is an EU carrier or a non-EU carrier is not relevant."

Find more clarifications here.

Monday, 13 June 2016

Public consultation on the safety of apps and other non-embedded software

The EU Commission has recently launched a public consultation on the safety of apps and other non-embedded software. The consultation has opened on the 9 June 2016 and will close on the 15 September 2016. It aims to give the Commission a better understanding of the possible risks and problems that non-embedded software can pose and possible ways to deal with the problems. This could then define potential next steps and future policies at EU level.

The consultation focuses on the safety of apps and other non-embedded software. This means software and apps which are neither embedded nor contained in a tangible medium at the time of their placement in the market or supply to consumers. According to the Commission, good examples are health and well-being apps, digital models for 3D printing or apps controlling other devices such as electronic appliances. Importantly, the consultation concerns the safety aspects of apps and not the underlying service itself (for example if the app gives access to a service such as transport). Safety or safe use is understood as freedom from unacceptable danger, risk or harm, including security vulnerabilities (so called cyber security) and physical, economic and non-material damage.

Responses may be submitted on any EU language through the online questionnaire (available here).

Friday, 10 June 2016

AG Sharpston in Home Credit Slovakia: in consumer credit, information is EU strategy, but MS have much to say

The Consumer Credit Directive (2008/48) mentions 22 items of information that must be specified in the credit agreement in a clear and concise matter (compulsory information). But what if these "items" are not specified in the contract's main document, which the consumer signs, but in the Terms and Conditions attached to that document? This was the main question brought to the ECJ by a Slovakian court.

According to AG Sharpston's opinion in Home Credit Slovakia, C-42/15, the requirement contained in the Directive (article 10) that the contract must be concluded on paper or other durable medium must be interpreted as referring to the way in which the consumer must be given the contract and does not establish a formal conclusion requirement. In other words, the provision wishes to secure that the consumer has the information available in a way which allows going back to it; it does not imply that the document should also be signed. This conclusion is reinforced by the fact that the Directive expressly states that it does not affect national rules establishing specific requirements for the conclusion of contracts. 

Under Slovakian law, it is possible to argue that the information would have to be provided in the same document which the consumer had signed. According to AG Sharpston, a similar requirement is not included by the Directive but also not precluded by it (para 48). It furthers the consumer protection aims pursued by the directive, while not excessively hindering the access to credit contracts. 

On the other hand, the AG continues, the Directive also allows the "compulsory information" to be conveyed on a document different than the main contract, provided certain conditions are in place which secure the consumer's possibility to read that document before the conclusion of the contract and know what relevant aspects of the contract would be regulated in the Terms and Conditions (para 52).

The answers to some of the other questions in the application were much more straightforward: where relevant, the consumer is entitled under the Directive to receive an amortisation table at request, but not necessarily at the moment of the conclusion of the contract; and the contract has to state the fequency of the repayments, but not the exact dates on which they fall due. 

A possibly more controversial issue, namely whether a national sanction which penalises the failure to provide the necessary information by deeming the credit interest-free would be proportionate, can according to the AG not be answered based on the information available to the court. However, as the AG has it, a substantial part of the information would probably have to be omitted in order to justify a similar sanction. 

The AG's answer to the first question seems to want to avoid the question of whether the word "contract" also needs to be given a specific meaning under the Consumer Credit Directive, to mean the main text given to the consumer. This is a comprehensible move, as the relationship between that "main" contractual document and the professional's terms and conditions is a mine field which, once entered, may prompt more questions than it would answer. However, the choice to concentrate on interpreting "on paper" and allowing the core information to be split among documents requires the AG to invent a whole series of conditions (see, again, para 52) which, albeit reasonable in the light of the Directive's aims, are entirely her own creation. One may wonder whether the Court will show more courage or will also opt for this safe, albeit inelegant, path.     

Thursday, 9 June 2016

Poland may go to court for failing to implement the Deposit Guarantee Schemes Directive

On 26 May 2016 the EU Commission decided to refer Poland to the CJEU for failing to correctly implement the Directive 2014/49/EU on Deposit Guarantee Schemes. Poland still transposes the Directive, way beyond the envisaged deadline of 3 July 2015. The new Directive replaces the previous, Directive 94/19/EC on Deposit Guarantee Schemes (as amended in 2008).

In the aftermath of the financial crisis the Directive is of an enormous importance for maintaining or regaining consumer confidence in the financial system. It protects savers, bank depositors by making their savings/deposits safe in the event of a bank failure. Guarantees are provided by guarantee funds that are funded by the banks and are established to pay out the deposits held by consumers up to the amount of 100.000 Euros per bank.

Beyond this basic protection, that has already been provided by the 1994 Directive, the new Directive foresees extended coverage (larger payouts for a limited time in case of life events such as a sale of a house), quicker payouts, payouts in different currencies, better consumer information (e.g. consumers must be informed that deposits held under different brand names of the same bank are not covered separately), fairer calculations of deposits (interests will be taken into account, outstanding loans will not be deducted) etc. The coverage extends to deposits held by personal pensions schemes and occupational pension schemes of small and medium enterprises, and deposits held by local authorities with a small budget. Finally, the new Directive also makes changes in the way deposit guarantee schemes are funded by putting in place better and more stable financing requirements for banks (it should be noted though that the Directive puts in place financing arrangements for making sure that funds have enough resources to deal with any failure of small and medium sized banks, whereas large banks will be subject to the Directive 2014/59/EU on Bank Recovery and Resolution).

It is not however set in stone that Poland will go to court. The EU Commission can withdraw the case from the CJEU if Poland implements the Directive. Nevertheless, in the meantime, bank customers/consumers are not entirely unprotected. The basic protection provided by the old Directive is in place and the Bank Guarantee Fund is in operation. Consumers may only deprived of the benefits provided by the new Directive.

Tuesday, 7 June 2016

Extended legal effect of court rulings in unfair contract term cases – AG's opinion and the recent reform of Polish law

The curious case of Amazon EU was not the only one, in which Advocate-General Henrik Saugmandsgaard Øe presented his opinion last Friday. By giving his views on the case C-119/15 Biuro podróży Partner, he also put forward a solution to a long-standing dispute among the Polish legal scholars as to whether a judicial ruling, recognising particular standard contract terms as unfair, may have a binding force vis-à-vis traders, who were not parties to the proceedings. Whereas the legal framework in Poland has meanwhile undergone a substantial reform and no longer provides for the erga omnes effect of judgements in cases of unfair standard contract terms, the AG's opinion touches upon several highly relevant issues, which are certainly worth discussing.

Polish legal framework now and then

At the time the dispute arose, the Polish legal framework provided for the following mechanisms of reviewing unfair clauses included in B2C contracts as a result of an unilateral decision of the trader.
  • Individual control carried out in judicial proceedings by common courts, whose rulings are binding inter partes.
This type of review follows directly from the Art. 385(1) of the Civil Code, which states that provisions of B2C contracts which have not been agreed individually are not binding on the consumer if his rights and obligations are set forth in a way that is contrary to good practice, thereby grossly violating his interests. This principle does not apply to provisions setting forth the main performances of the parties, including price or remuneration, if they are worded clearly. The individual review mechanism has not been affected by the recent amendments to the Polish law.
  • Abstract control of standard contract terms carried out in judicial proceedings by the specialised Court of Competition and Consumer Protection (SOKiK) in Warsaw.
In this system, which has recently undergone a significant revision, an action for injunction could be brought to SOKiK by every person, who could have concluded the contract following an offer by the trader. The rulings of SOKiK were subsequently published in the register of unfair standard contract terms and from that moment on had an effect on the third parties, pursuant to Article 479[43] of the Code of Civil Procedure. What is more, inclusion of an unfair standard clause into the register could give rise to administrative control, addressed also at other traders. During the control the President of the Office of Competition and Consumer Protection (UOKiK) would verify if standard contract terms used by the investigated trader are identical or similar to the clauses contained in the register. Should that be the case, the President of UOKiK could impose sanctions on the trader concerned, including a fine of up to 10% of his revenue in the preceding year. Ambiguous wording of Article 479[43] was a source of continuous academic controversy. However, in practice the dominant interpretation was that judgements entered into the register are effective vis-à-vis all traders who include identical or similar clauses in their standard contract terms proposed to consumers (not only defendant in the case, based on which the entry was made).

On 5 August 2015 an Act Amending the Act on Competition and Consumer Protection was adopted, introducing a fundamental overhaul of the aforementioned system. As of 17 April 2016 abstract review is conducted by the President of UOKiK in an administrative procedure and is only binding on investigated traders. The President may still impose severe sanctions, but his decision can subsequently be appealed to SOKiK, which would also analyse the case on the merits. The register of unfair standard contract terms, which presently contains more than 6000 entries, will continue to exist until 2026 (for cases brought before SOKiK prior to the entry into force of the new Act). 

Request for a preliminary ruling

Given this highly disputed nature of the described mechanism, which had been present in the Polish legal system for more than a decade, it seems both regrettable and surprising, that the reference for a preliminary ruling of the CJEU came so late. The opportunity was finally seized by the Court of Appeal in Warsaw, which examined an appeal from the decision of the President of UOKiK imposing a fine of PLN 27 127 (approx. EUR 4 940) on a trader who – in his contracts with consumers – made use of standard clauses which were previously introduced in the register. The referring court requested the CJEU for clarification of two aspects. However, the AG Saugmandsgaard Øe not only limited himself to analysing one of them, but also decided to rephrase the question by adding an explicit reference to the Charter of Fundamental Rights. As a result, in his opinion the Advocate-General sought to establish whether:

Directive 93/13/EEC on unfair terms in consumer contracts, in conjunction with Articles 1 and 2 of Directive 2009/22/EC on injunctions for the protection of consumers’ interests, and Article 47 of the Charter of Fundamental Rights of the European Union should be interpreted as precluding a provision of national law, according to which the use of standard contract terms with content identical to that of terms which have been declared unlawful by a judicial decision having the force of law and which have been entered in the register of unlawful standard contract terms can be regarded, in relation to another undertaking which was not a party to the proceedings culminating in the entry in the register of unlawful standard contract terms, as an unlawful act forming the basis for imposing a fine in national administrative proceedings.

Advocate-General's opinion

The Advocate-General heavily criticised the analysed system of abstract review, concluding that it is not only incompatible with the Directive 93/13/EEC, but also disproportionately restricts a trader's right to be heard and is questionable in the light of several other fundamental rights. The following arguments were raised:
  • Although the Directive 93/13/EEC introduces a minimum harmonisation level, this does not mean that national legislators are absolutely free to introduce more restrictive laws. Pursuant to Article 8 of the Directive more stringent provisions adopted or retained by Member States have to be compatible with the Treaty (paras. 41-42).
  • Pursuant to Article 4(1) of the Directive, unfairness of a contractual term shall be assessed by referring to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. Therefore contractual terms should always be analysed in a broader context and on a case-by-case basis (paras. 46-49).
  • Furthermore, according to the AG, the term "adopt provisions" refers to statutes and administrative provisions adopted in a legislative process, and does not include black lists developed by the courts. Such a system would, in his view, be difficult to reconcile with the principle of legality laid down in Article 49 of the Charter (paras. 54-56). Intransparent character of the register, resulting from the rapidly growing number of entries, makes it also questionable in view of the principle of legal certainty (para. 57)
  • According to Article 3 of the Directive, where a seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him. From the wording of this provision the Advocate-General concludes that Directive 93/13/EEC establishes a right of the defendant to prove that the provision was negotiated individually. Moreover, this right should be viewed as a part of a much broader fundamental right to be heard, guaranteed in Article 47 of the Charter. In the case at hand, the trader was unable to present his arguments in the course of both administrative and judicial proceedings, as the latter did not require to court to examine the case on the merits. Such limitation of the right to be heard cannot be described as proportionate (paras. 64-71).
  • Finally, the Advocate-General noted that a parallel cannot be drawn from the CJEU judgement in case C‑472/10 Invitel as the latter only refers to an extended effect that a judgement may have on behalf of third parties and not against third parties. In other words, the Invitel judgement only confirms that a system in which unfair clause used in contracts by a particular trader and which a national court has ruled to be invalid has no legal effect in any consumer contract concluded by that seller or supplier, is compatible with the EU law. AG Saugmandsgaard Øe also pointed to the following passage of AG's Trstenjak opinion in the Invitel case: "the erga omnes effect of the judgment against [the defendant] does not apply indiscriminately to every other seller or supplier using a similar term but not involved in the proceedings that led to the finding that the term in question was not binding. If that were the case, serious doubts would arise from the point of view of procedural law and fundamental rights" and fully supported this view (paras. 80-83). He also did not identify any provisions in Directive 2009/02 which would support an opposite conclusion (para. 88).

Concluding remarks

In his opinion in case C-119/15 the Advocate-General Saugmandsgaard Øe discussed a number of highly relevant issues, such as the scope of Member States' procedural autonomy and the extended legal effect of judicial rulings. He also invoked the Charter of Fundamental Rights of his own motion and presented a fairly detailed interpretation of the right to be heard. On the one hand, the conclusion reached by the AG seems justified – the Polish abstract review mechanism was indeed open to criticism, not least because of the register's intransparency. On the other hand, one may wonder if the argumentation of the Advocate-General does not go too far. As the analysed factual background refers to a system, which was not only unique in Europe, but is also no longer in force, the question may arise whether the case C-119/15 provides a proper basis for such fundamental considerations. It is questionable whether judicially developed lists of unfair standard terms can generally be considered as irreconcilable with the principle of legality (any common lawyers reading this post?). Having this in mind, it will be very interesting to see how this intriguing issue is handled by the Court of Justice.

Friday, 3 June 2016

"Günstige Preise": Advocate-General's Opinion in Amazon EU case (C-191/15)

Amazon EU, the European branch of a well-known e-commerce company, has been accused of using unfair terms by the Verein für Konsumenteninformation (VKI), an Austrian consumer organisation. Amazon EU has its seat in Luxembourg, but it operates in Austria via, a German website promising "Günstige Preise". The general conditions of sale contain a choice of law for the law of Luxembourg, which VKI says is unfair. Now solve the riddle: what law is applicable to the dispute between VKI and Amazon EU?
Advocate-General Henrik Saugmandsgaard Øe, who was appointed last year, presented his solution to this riddle yesterday (see the full opinion here, in French), following a preliminary reference from the Austrian Oberster Gerichtshof. He breaks it down into three questions:
  1. On the basis of which rules on the conflict of laws should the applicable law be determined: Rome-I or Rome-II? In other words, does the underlying issue of law concern a contractual or a non-contractual obligation?
  2. Follow-up question: what law is applicable?
  3. Is the choice of law at issue unfair (within the meaning of Directive 93/13)?
The case brought against Amazon EU by VKI is an action for an injunction for the protection of consumers' interests (Directive 2009/22). Although VKI acts in the collective interests of Austrian consumers, the Advocate-General's proposed answers are relevant as well for website users all over Europe.

If you are mainly interested in the (potential) unfairness of a choice of law, you can jump directly to the third heading below. For our readers with an interest in private international law, we will also discuss the more technical matter of Rome I vs. Rome II and the practical consequences.

1. Rome I or Rome II (paras. 32-66)?
The first question is relevant, because the Rome I Regulation (593/2008) would lead to the applicability of the law of Luxembourg, while the Rome II Regulation (864/2007) would lead to the applicability of the law of Austria. VKI claimed that Amazon EU's general conditions of sale violated, among other things, the Austrian Konsumentenschutzgesetz and Datenschutzgesetz on consumer protection and data protection respectively. The Handelsgericht Wien and the Oberlandesgericht Wien had both determined the applicable law in accordance with Rome I. However, as the Advocate-General points out, VKI acts in the general interest and its action for an injunction is abstract and preventive, i.e. forward-looking; it is not connected to specific individual consumer contracts. VKI is not a party to the contracts with Amazon EU, nor is there a contract between Amazon EU and VKI itself. VKI's right to bring an action has been assigned to it by law and its goal is to prevent the use of unlawful terms. In the context of jurisdiction (the Brussels I Regulation), the Court of Justice had already decided that such an action cannot be qualified as a "contractual obligation" (HenkelC-167/00). The Advocate-General proposes a parallel interpretation of Rome I. He rejects the view that a "symmetry" is necessary between an action for an injunction on the one hand and an individual action - based on a concrete and existing contract - on the other, because of the different and supplementary nature of both actions. In this respect, he refers to Article 5 of Directive 93/13, which gives separate rules of interpretation for individual actions. Indeed, in the context of this Directive, the Court of Justice distinguishes between individual and collective actions (see, e.g., our blog here). Hence, the applicable law should be determined on the basis of Rome II.

2. What law is applicable (paras. 67-81)?
Pursuant to Article 6(1) Rome II, the law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected. The Advocate-General puts forward that "unfair competition" includes the use of unfair terms which are likely to affect the collective interests of consumers. Therefore, Austrian law is applicable. Furthermore, the Advocate-General argues that the exception of the general lex-loci-damni-rule in Article 4(3) Rome II - when the tort/delict is "manifestly more closely connected" to another country - should not be applied, because it should not be possible to circumvent Article 6(1) by seeking a closer, personal link between the parties, for example the existence of a contract. He refers again to the argument that an action for an injunction is not connected to individual consumer contracts. 

What are the practical consequences? The action for an injunction is governed exclusively by Austrian law. An individual action would be governed by the law of Luxembourg, on account of the choice of law in the general conditions of Amazon EU. According to the Advocate-General, consumers in Austria would nevertheless still be protected by mandatory provisions of Austrian law. Pursuant to Article 6(2) Rome I, a choice of law may not have the result of depriving consumers of the protection afforded to them by virtue of the law that would otherwise have been applicable, i.e. the law of the country of their habitual residence. This had also been the conclusion of the Oberlandesgericht Wien: consumers cannot lose the protection they enjoy under Austrian law, in particular the Konsumentenschutzgesetz.

So far, so good. However, if we follow the Advocate-General's reasoning that the action for an injunction is not connected to individual consumers and that the underlying issue of law concerns a non-contractual obligation, then we may conclude that consumer associations such as VKI cannot rely on Rome I. Interestingly, the Advocate-General subsequently refers to Article 6(2) Rome I in order to determine whether the choice of law at issue is unfair in the relation between the consumer and the seller

3. Is the choice of law unfair (paras. 82-104)?
In the Advocate-General's opinion, a choice of law is not in itself unfair because it may be disadvantageous to consumers. A choice of the law of another country may nevertheless have a chilling effect, deterring consumers to bring an action against the seller. They are presumably unacquainted with the laws of that country; the laws of their own country are in general more familiair and accessible, if only because of the language, and can thus be more easily invoked. The Advocate-General considers it especially important that consumers are informed in a clear and understandable manner about their rights; contractual terms should not be misleading. Terms containing a choice of law must be sufficiently transparant, in that they should specify unambiguously that consumer still have the possibility to invoke mandatory provisions of the laws of their own country (under Article 6(2) Rome I), in particular those laws which implement the acquis regarding consumer protection and which may - in case of minimum harmonisation - offer even a higher level of protection than required. If no explicit reference to the laws of the consumers' own country, they could get the incorrect impression that the contract is governed only by the law of another country. This may cause a significant imbalance to the detriment of consumers, which is unfair in the sense of Directive 93/13.

Thus, the Advocate-General de facto introduces a new requirement for a choice of law in consumer contracts, by connecting Article 5 of Directive 93/13 - providing that terms must always be drafted in plain, intelligible language - to Article 6(2) Rome I. This does not mean that all potentially applicable mandatory provisions should be listed, but consumers should at least be notified that they cannot lose the protection afforded to them under the laws of their own country.

Data protection (paras. 105-128)
Lastly, the Advocate-General addresses the question which law is applicable to the processing of personal data under Directive 95/46. Pursuant to Article 4(1) of this Directive, the territory of the Member State on which the controller is established is decisive. It is up to the national court to assess whether Amazon EU can be said to have an "establishment" in Austria, and whether the processing of personal data is perhaps more closely connected to activities in Germany. 

Concluding remark
So far, Amazon EU does not seem to have changed its general conditions of sale yet (see the Verkaufsbedingungen, the screenshot below was made on 3 June 2016):

Article 10 also contains a forum choice for the courts of Luxembourg, but explicitly states that consumers can submit claims either in Luxembourg or in the EU Member State where they live (cf. Brussels I). It would be to Amazon EU's credit if they would follow the Advocate-General's opinion and add a similar clarification for the choice of law for the law of Luxembourg.

Thursday, 2 June 2016

CJEU Annual Report 2015 presented

The Annual Report 2015 on the judicial activity of the Court of Justice, the General Court and the Civil Service Tribunal has been published online. In the Netherlands, it was presented last week - on 27 May 2016 - at the Council of State in The Hague by justices Sacha Prechal and Marc van der Woude (Dutch version available here). 

In his introduction to the Annual Report, justice Koen Lenaerts, president of the Court of Justice, observes that 2015 has seen the highest number of cases brought over the course of a year in the institution’s history, and that its annual productivity is at an unprecedented level. Earlier, it was reported that the most references for a preliminary ruling come from (1) Germany, (2) Italy, (3) the Netherlands, (4) Spain and (5) Belgium. 

From the Annual Report it follows that there were 39 new references for a preliminary ruling with consumer protection as the subject matter of the action (on a total of 436) before the Court of Justice in 2015. Furthermore, 29 cases concerning consumer protection were completed by judgments, opinions or by orders involving a judicial determination (on a total of 554). Section XVIII of the report (pp. 59-60) is dedicated to consumer protection, and discusses the Court's judgments in the cases Unicaja Banco and Caixabank (see also our blog) and ERSTE Bank Hungary (blog). Both cases relate to Directive 93/13 on unfair terms.