Saturday, 14 April 2018

New Deal for Consumers: proposals on online transparency

In our earlier post we reported on the behavioural study on transparency of online platforms published by the Commission as part of its „New Deal for Consumers” package. We noted that it is hard not to agree with the general recommendations arising from the study (following up on the earlier documents published as part of the Fitness Check of the European consumer acquis and evaluation of the Consumer Rights Directive); however, for them to actually work in practice a number of detailed issues needed to be solved. Interestingly, several matters of relevance to online transparency addressed in the study have already found their way to the legislative proposals tabled on Tuesday. Should we praise the Commission for this pace of action? Let’s have a closer look at these elements of the “New Deal”.

Legislative package: basic facts

The legislative part of the “New Deal for Consumers” consists of the following two proposals:
  • a proposed directive amending Directive 93/13/EEC (unfair terms), Directive 98/6/EC (price indication), Directive 2005/29/EC (unfair business-to-consumer commercial practices) and Directive 2011/83/EU (consumer rights) as regards better enforcement and modernisation of EU consumer protection rules (COM(2018) 185 final)
  • a proposed directive on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC (injunctions) (COM(2018) 184 final) – to which a separate blog post will be devoted.
It is particularly the former proposal in which the new provisions regarding the “digital” sphere are contained  – mainly in the form of amendments to Directives 2005/29/EC (UCPD) and 2011/83/EU (CRD). 

As regards the transparency of online transactions, the proposed amendments affect two of the three dimensions of transparency addressed in the behavioural study: 1) the criteria for ranking and the presentational features of search results and 2) presenting the identity of contractual parties. By contrast, proposals on quality controls for consumer reviews and ratings appear to be missing.

Amendments to the UCPD

One of the ways in which the Commission plans to improve the transparency of search results is via the amendment of No. 11 of Annex I to the UCPD. Acording to the new wording

11. Using editorial content in the media, or providing information to a consumer’s online search query, to promote a product where a trader has paid for the promotion without making that clear in the content or search results or by images or sounds clearly identifiable by the consumer (advertorial; paid placement or paid inclusion)

Search results marked as "Ads" on Google
would be qualified as one of the commercial practices considered to be unfair in all circumstances. This does not seem to effect a major change to the state of affairs as, indeed, the providers of leading search tools already identify paid results as such. It should be observed that the proposal does not contain any reference to factors other than direct payment which could have an impact of the placement of a search result such as corporate ties between the operator of a search engine and the supplier of the product or service.

Amendments to the CRD

While the adjustments made in the UCPD would apply to any provider of an online search tool, the amendments made to the CRD with respect to the ranking of offers and identity of contracting parties are essentially limited to "online marketplaces". The latter are defined in the proposed Artice 2(19) as "service providers which allow consumers to conclude online contracts with traders and consumers on the online marketplace’s online interface". This invites several comments.

First of all, while the Commission presents its definition of an online marketplace as "future-proof" this does not necessarily mean that it is free from doubts. Indeed, unlike definitions found in Directive 2011/83/EU on consumer ADR and in Regulation 524/201342 on consumer ODR, the new wording does not refer to a "website", but makes use of a more technologically neutral notion of an "online interface", defined by reference to the newly adopted Regulation 2018/302 on geo-blocking. At the same time, however, the proposed act does not seek to amend Article 7(3) of the CRD which refers to a "trading website". 

Secondly, the decisive function of an "online marketplace" consists in "allowing consumers to conclude online contracts on the online marketplace’s online interface". This seems to suggest that a service provider only qulifies as an online marketplace if the actual contract is concluded by means of the software  provided (website, mobile app), thus excluding webites which merely identify the relevant customers and suppliers.

Thirdly, the definition of an online marketplace refers to the contract concluded by consumers "with traders and consumers". This seems to put an end to a debate whether something like a "consumer-to-consumer contract" can exist. This debate, however, is not limited to the question whether someone who actually sells a good or provides a service can be called a "consumer". This seemingly minor change in wording might also be difficult to reconcile with some national provisions in which a consumer status is intrinsically linked to the professional capacity of his counter-party (see, for example, Article 22[1] of the Polish Civil Code). 

The specific transparency provisions for online marketplaces are found in the proposed Article 6a of the CRD. According to this provision: 

Before a consumer is bound by a distance contract, or any corresponding offer, on an online marketplace, the online marketplace shall in addition provide the following information:
(a) the main parameters determining ranking of offers presented to the consumer as result of his search query on the online marketplace;
(b) whether the third party offering the goods, services or digital content is a trader or not, on the basis of the declaration of that third party to the online marketplace;
(c) whether consumer rights stemming from Union consumer legislation apply or not to the contract concluded; and 
(d) where the contract is concluded with a trader, which trader is responsible for ensuring the application of consumer rights stemming from Union consumer legislation in relation to the contract. This requirement is without prejudice to the responsibility that the online marketplace may have or may assume with regard to specific elements of the contract.

Concluding thought

Improving online transprency clearly belongs to the rationale of legislative proposals submitted by the Commission earlier this week. The specific proposals made promise to bring more clarity to consumers, but do not address all the identified problems. If the proposed directive was to be adopted in the current form, a further question might be asked as to the extent to which Member States could still intervene in ensure transparency of online platforms (considering the full harmonisation nature of both the UCPD and the CRD). The current wording of the proposals also leaves a range of interpretative questions open. Should these not be addressed in the legislative process, this important task will, once again, be left to the Court of Justice. 

5 comments:

  1. ALL LOAN SERVICES AVAILABLE

    Commercial Loans
    Personal Loans
    Business Loans
    Investments Loans
    Development Loans
    Acquisition Loans
    Construction loans
    Business Loans And many More:

    Contact Us At : urbansuccessfundings@gmail.com

    LOAN APPLICATION FORM:

    Full Name:................
    Loan Amount Needed:.
    Purpose of loan:.......
    Loan Duration:..
    Gender:.............
    Marital status:....
    Location:..........
    Home Address:..
    City:............
    Country:......
    Phone:..........
    Mobile / Cell:....
    Occupation:......
    Monthly Income:....
    Website You Heard About Us?......

    Contact Us At : urbansuccessfundings@gmail.com

    ReplyDelete
  2. EDWARD JONES FINANCE IS THE BEST PLACE TO GET A LOAN {Jonesloanfinance@yahoo.com},
    God bless you sir, I will not stop telling the world about your kindness in my life, I am a single mum with kids to look after. My name is Emily Thomas and I am from Convention Center Drive, Miami Beach, FL . A couple of weeks ago My friend visited me and along our discussion she told me about EDWARD JONES FINANCE, that they can help me out of my financial situation, I never believed cause I have spend so much money on different loan lenders who did nothing other than running away with my money. I have been in a financial mess for the pass 7 months now, She advised I give it a try so I mailed him and explain all about my financial situation to him, he therefore took me through the loan process and gave me a loan of $390,000.00 at a very low interest rate of 2% and today I am a proud business owner and can now take good care of my kids, If you must contact any firm to get any amount of loan you need with a low interest rate of 2% and better repayment schedule, please contact EDWARD JONES FINANCE email:- {Jonesloanfinance@yahoo.com} OR Text +1(307) 217-5388

    ReplyDelete
  3. Dear Sir/Ma

    We are one of the leading financial instrument providers with offices all over Europe. We are major/Direct providers of SWIFT MT103 CASH TRANSFER, Fresh Cut,lease BG, SBLC, POF, MTN on euro-clear, Loan and this financial instruments are specifically for lease/purchase, we do deliver on time and precision as Set forth in the agreement. You are at liberty to engage our leased/purchase facilities into trade programs, project financing, Credit line enhancement, Corporate Loans (Business Start-up Loans or Business Expansion Loans), Equipment Procurement Loans (Industrial Equipment, Air crafts, Ships, etc.) And many more, Our Terms and Conditions are reasonable.

    DESCRIPTION OF INSTRUMENTS:

    1. Instrument: Bank Guarantee (BG)/SBLC (Appendix A)

    2. Total Face Value: 1M MIN to 900B MAX USD or Euro

    3. Issuing Bank: HSBC, Deutsche Bank Frankfurt, UBS or any Top 25.

    4. Age: One Year, One Day

    5. Leasing Price: (5 +2 %) Purchase Price: (35 + 2%)`

    6. Delivery by SWIFT.

    7. Payment: MT103

    8. Hard Copy: Bonded Courier within 7 banking days.

    If you have need for Corporate loans, International project funding, etc. or if you have a client that requires funding for his project or business, We are also affiliated with lenders who specialize on funding against financial instruments, such as BG, SBLC, POF or MTN and SWIFT MT103 CASH TRANSFER, we fund 100% of the face value of the financial instrument. Inquiries from agents/ brokers/ intermediaries are also welcomed; do get back to us if you are interested in any of our services and for quality service, kindly contact us.

    Looking forward to hear from you.

    Regards,

    Mr. smith

    Email: heritagefinancialholdingsplc@gmail.com

    Skype: heritagefinancialholdingsplc@outlook.com

    ReplyDelete
  4. Dear Sir/Ma

    We are one of the leading financial instrument providers with offices all over Europe. We are major/Direct providers of SWIFT MT103 CASH TRANSFER, Fresh Cut,lease BG, SBLC, POF, MTN on euro-clear, Loan and this financial instruments are specifically for lease/purchase, we do deliver on time and precision as Set forth in the agreement. You are at liberty to engage our leased/purchase facilities into trade programs, project financing, Credit line enhancement, Corporate Loans (Business Start-up Loans or Business Expansion Loans), Equipment Procurement Loans (Industrial Equipment, Air crafts, Ships, etc.) And many more, Our Terms and Conditions are reasonable.

    DESCRIPTION OF INSTRUMENTS:

    1. Instrument: Bank Guarantee (BG)/SBLC (Appendix A)

    2. Total Face Value: 1M MIN to 900B MAX USD or Euro

    3. Issuing Bank: HSBC, Deutsche Bank Frankfurt, UBS or any Top 25.

    4. Age: One Year, One Day

    5. Leasing Price: (5 +2 %) Purchase Price: (35 + 2%)`

    6. Delivery by SWIFT.

    7. Payment: MT103

    8. Hard Copy: Bonded Courier within 7 banking days.

    If you have need for Corporate loans, International project funding, etc. or if you have a client that requires funding for his project or business, We are also affiliated with lenders who specialize on funding against financial instruments, such as BG, SBLC, POF or MTN and SWIFT MT103 CASH TRANSFER, we fund 100% of the face value of the financial instrument. Inquiries from agents/ brokers/ intermediaries are also welcomed; do get back to us if you are interested in any of our services and for quality service, kindly contact us.

    Looking forward to hear from you.

    Regards,

    Mr. smith

    Email: heritagefinancialholdingsplc@gmail.com

    Skype: heritagefinancialholdingsplc@outlook.com

    ReplyDelete
  5. We give out loans within the range of $ 10,000 to $ 200,000,000.00 USD at the rate of 3% interest rate.Our loans are well insured and maximum security is our priority; Interested persons can contact us today via email: stevendonaldloanfirm36@yahoo.com or stevendonaldloanfirm36@gmail.com
    Please note that if you are under 18 do not to apply, write all your information properly checked with your countries high commission, so make sure you really are applicable to you. BORROWERS INFORMATION 1) Full name:......... 2) Country:......... 3) Address:......... 4) State:......... 5) Gender:......... 6) Marital status:......... 7) Job  .......... 8) Phone number:......... 9) Current position instead of work: 10) Monthly Income:......... 11) Loan Amount Requires:......... 12) Loan Duration:......... 12) Did you apply for a loan Before .......... 13) Age ..........

    BEST REGARDS

    ReplyDelete