December wrap-up of data protection cases (Google, Österreichische Datenschutzbehörde and Pankki S)

The end of the month (and the end of the year as well) is a good moment for summaries. This time we are taking a closer look at events in the area of data protection law. December was a month with a couple of interesting events, so here is a brief recap. 

Dereferencing allegedly inaccurate content (C-460/20 Google)

The case concerned two executives of a group of investment companies (a board member and a proxy) who asked Google to remove search results linking their names to certain articles criticising the group's investment model. They exercised the so-called right to be forgotten, guaranteed under Article 17(1) of the GDPR, claiming that the information presented contained false claims and defamatory opinions. They also wanted Google to remove their thumbnail images from the search results. Google rejected these requests, arguing that it does not know whether the information contained in the articles is true or not.

In cases involving the erasure of data from a search engine operator's search results, two rights usually collide: the public's right of access to information (especially about persons holding public positions) and the individual's right to protection of his or her personal data, including the right to erasure, protection of his or her good name, image, etc. The same problems were considered in this case, as we wrote about when reporting on the AG's opinion issued in the proceedings. In the ruling of 8th December 2022 the Court held that the person requesting the deletion of data is obliged to show that the information is manifestly inaccurate. "However, in order to avoid imposing on that person an excessive burden which is liable to undermine the practical effect of the right to de-referencing, that person has to provide only evidence that, in the light of the circumstances of the particular case, can reasonably be required of him or her to try to find in order to establish that manifest inaccuracy" (para. 68). It means that such a person cannot be required to present a judicial decision made against the publisher of the website in question, even in the form of a decision given in interim proceedings, since it would be an unreasonable burden imposed on such a person. At the same time "the operator of the search engine concerned cannot be required to investigate the facts and, to that end, to organise an adversarial debate with the content provider seeking to obtain missing information concerning the accuracy of the referenced content" (para. 71). Therefore, if the person who made a request for de-referencing submits relevant and sufficient evidence showing the manifest inaccuracy of the information found in the referenced content, the operator of the search engine is required to accede to that request for de-referencing. But an operator should not grant a request if the inaccurate character of the information is not obvious in the light of the evidence presented (para. 72&73). 

As regards the thumbnails the Court concluded that "a separate weighing-up of competing rights and interests is required depending on whether the case concerns, on the one hand, articles containing photographs which are published on an internet page and which, when placed into their original context, illustrate the information provided in those articles and the opinions expressed in them, or, on the other hand, photographs displayed in the list of results in the form of thumbnails by the operator of a search engine outside the context in which they were published on the original internet page" (para. 101). The Court also stated that the informative value of those images should be taken into account independently of the context of their publication on the website from which they originate, nevertheless taking into account all the content that directly accompanies the display of those images in the search results and that can explain the informative value of those images (para. 108).

The concept of a "copy of personal data" under the Article 15(3) of the GDPR. AG Pitruzzella opinion on Österreichische Datenschutzbehörde case (C‑487/21)

The dispute arose over the interpretation of Article 15(3) of the GDPR, which provides that a data subject, as part of the right of access to one's personal data, may obtain a copy of that data. The complainant requested an exact copy of the data processed by the controller, including full copies of documents containing his personal data. However, the controller provided only some of the requested information as an aggregate that reproduced the stored personal data of the data subject in a table broken down by name, date of birth, street, postal code, and place, and in a statement summarising corporate functions and powers of representation. As part of the proceedings, the national court decided to refer several questions concerning the interpretation of Article 15(3) of the GDPR to the Court. 

On 15 December 2022, the AG delivered an opinion stating that the concept of “copy” referred to in Article 15(3) of the GDPR must be understood as "a faithful reproduction in intelligible form of the personal data requested by the data subject, in material and permanent form, that enables the data subject effectively to exercise his or her right of access to his or her personal data in full knowledge of all his or her personal data that undergo processing – including any further data that might be generated as a result of the processing, if those also undergo processing – in order to be able to verify their accuracy and to enable him or her to satisfy himself or herself as to the fairness and lawfulness of the processing so as to be able, where appropriate, to exercise further rights conferred on him or her by the GDPR". The AG underlined that this provision does not, in principle, entitle the data subject to obtain a full copy of documents containing the personal data, but, at the same time, does not exclude the need to provide that person with extracts from documents, whole documents or extracts from databases if that is necessary to ensure that the personal data undergoing processing are fully intelligible.

Right to know the identity of the persons who had access to one's personal data. AG Campos Sánchez-Bordona on Pankki S case (C-579/21)

The third case also concerned the right of access to personal data, but from a different perspective. Data subject wanted to know who exactly (among the employees of the financial institution) had access to his personal data at the time when he was a customer of that institution and an employee thereof. The controller refused to provide names of the employees arguing that Article 15 of the GDPR does not apply to log data of the institution's data processing system and that the information requested does not relate to personal data of the data subject, but to the personal data of the employees. 

The AG approved the controller's view and stated that Article 15(1) of the GDPR "does not give the data subject the right to know, from among the information available to the controller (where applicable, through records or log data), the identity of the employee or employees who, under the authority and on the instructions of the controller, have consulted his or her personal data". In justifying his opinion, he pointed out that "the identity of individual employees who have handled the processing of customer data is particularly sensitive information from a security point of view, at least in certain economic sectors" (para. 76). Disclosure of employees' data could expose them to attempts by customers of the banking institution to exert pressure and influence. Nevertheless, the AG noted that if a data subject has reasonable doubts about the integrity or impartiality of an individual who has participated on behalf of the controller in the processing of his or her data, this could justify the interest of that customer in knowing the identity of the employee in order to exercise the customer's right to take an action against that employee (para. 78; nb. in the relevant case the data subject made his request, in particular, in order to clarify the reasons for his dismissal).

Pre-contractual information in multi-party settings: mobilizing legitimate interests to restrict consumer protection? (C-179/21 absoluts-bikes)

Today we come back to the judgment in C-179/21, absoluts-bikes, issued by the Court of Justice earlier this year. The decision may have passed under many radars, particularly as it was not preceded by the opinion of the Advocate-General. However, it is worth taking a closer look at it, as the judgment is not just interesting at the theoretical level, but also quite alarming in its implications. 

 

Facts of the case

 

The judgment was triggered by a dispute between two German traders offering consumer goods for sale online: the-trading-company and absoluts-bikes. According to the former, the latter failed to provide sufficient information about the products which it sold with help of Amazon. More specifically, the dispute concerned the listing of a pocket knife of the Swiss manufacturer Victorinox. In that listing, under the subheading labelled “Further technical information”, the consumers could find a link described as “Operating instructions”. The link led to a two-page information sheet, drafted by the knife’s manufacturer and referring, among others, to the ‘Victorinox guarantee’, describing the damage covered and the relevant time period. 

 

The claimant argued that the information provided by the defendant was not sufficiently specific. In particular, absoluts-bikes failed to inform the consumers that the manufacturer’s guarantee did not affect their statutory rights, neither did it describe the territorial scope of the guarantee. This – following the claimant – constituted an infringement of the German act on unfair competition. Since the relevant provisions had their background in the EU law, namely the Consumer Rights and Consumer Sales Directives, the national court decided to stay the proceedings and refer preliminary questions to the Court of Justice.

 

Guarantees in the Consumer Rights Directive

 

The Court began its analysis by turning to Directive 2011/83/EU on consumer rights and I will also limit this blog post to this part, as it is most developed and most consequential.

 

To recall, Article 6(1)(m) of the CRD requires traders to inform the consumers before concluding distance contracts, where applicable, about “the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees”. The relevant question in the present case was whether the information requirement arises “merely through the existence of that guarantee or whether it is only in certain circumstances that the trader is required to inform the consumer of the existence and conditions of such a guarantee” (para. 24).

 

The Court began its reasoning by recalling the purpose of pre-contractual information duties laid down in the Directive. The relevant provision, it remarked, “seeks to ensure the communication to consumers, before the conclusion of a contract, both of information concerning the contractual terms and the consequences of that conclusion, allowing consumers to decide whether they wish to be contractually bound to a trader, and of information necessary for proper performance of that contract and, in particular, for the exercise of their rights” (para. 26). It follows that the information duties aim to allow consumers to, firstly, make informed decisions about the contracts they wish to enter into and, secondly, effectively exercise their rights after contract conclusion.

 

These two main functions of information duties have previously been remarked upon in the scholarship and testify to the importance of mandatory disclosure beyond the moment of the contract conclusion. Indeed, the paradigm of consumer protection that focuses primarily on allowing consumers to make informed decisions has long been questioned in the light of behavioural findings showing that consumers may suffer from information overload and take account only of certain details communicated to them by the traders. Such details may nonetheless prove rather valuable at a later stage, e.g. when a problem related to the contract arises. This also seems to be the case for the producer’s guarantees, discussed in the present context.

 

Against this background, the attention paid by the Court to the two functions of information duties is be welcomed. Unfortunately, it is not subsequently translated to the remaining part of the judicial reasoning. Instead, the Court appears to focus primarily on the influence of pre-contractual disclosure on consumers’ decisions to enter into contracts, and views it through a particularly narrow lens, namely the lens of a possible deception. This lens, however, is not an obvious one in the context of the Consumer Rights Directive, but rather seems aligned with the perspective of (certain provisions of) the Unfair Commercial Practices Directive.

 

How then, did the Court proceed with its analysis? First, rather typically, it attempted the decode the meaning of Article 6(1)(m) of the CRD by looking at its wording, context and objectives. Referring to Article 2(14) of the CRD it concluded that the concept of a ‘commercial guarantee’, within the meaning of Directive 2011/83/EU, covers both commercial guarantees offered by traders (sellers) and by manufacturers. The trader is thus required, at least in certain circumstances, to provide the consumer with details concerning not only its own commercial guarantee, but also that of the manufacturer. So far, so good.

 

Turning to the objectives of the CRD the Court understandably referred to establishing “a high level of consumer protection”, also pointing to Article 169 TFEU and Article 38 of the Charter of Fundamental Rights (para. 38).  Having said that, however, the Court went on to emphasizing the need of ensuring “the right balance between a high level of consumer protection and the competitiveness of enterprises, while respecting the enterprise’s freedom to conduct a business”, as also set out in the Charter (para. 39). The Charter was thus invoked primarily to set the scene as one in which competing interests must be balanced.

 

Focusing on the interests of traders, the judgment concluded that an unconditional obligation to provide information about commercial guarantees, in all circumstances, “seems to be disproportionate, in particular in the economic context of the functioning of certain undertakings, in particular small undertakings” (para. 40). This seems rather uncontroversial: it would indeed be burdensome for traders to have to continuously collect and update information about any potential guarantees, when they are not the ones providing them, nor pointing at them in their offer. However, according to the Court, the balancing exercise should go even one extra step in favour of the traders. And interestingly, the Court did so by referring to the notion of legitimate consumer interests – and mobilizing it to the consumers’ disadvantage. 

 

To illustrate this point consider the following passage of the judgment:

In those circumstances, the weighing up of a high level of consumer protection and the competitiveness of enterprises, as set out in recital 4 of Directive 2011/83, must lead to the conclusion that the trader is required to provide the consumer with pre-contractual information on the manufacturer’s commercial guarantee only where the legitimate interest of the average consumer, who is reasonably well informed and reasonably observant and circumspect to a high level of protection must prevail in the light of his or her decision whether or not to enter into a contractual relationship with that trader. (para. 41)

As is apparent from the cited passage, the Court seems to forget about the double function of information duties referred to earlier in the judgment. This is additionally harsh for consumers considering the subsequent reasoning, whereby the Court considers a legitimate interest in being informed about producers’ guarantees to exist “where the trader makes the manufacturer’s commercial guarantee a central or decisive element of its offer” (para. 44). The latter is supposedly the case “where the trader expressly draws the consumer’s attention to the existence of a manufacturer’s commercial guarantee for sales or advertising purposes and, accordingly, to improve the competitiveness and attractiveness of its offer in comparison with its competitors’ offers” (para. 45). When this is not the case, the information on the guarantee is not likely to mislead the consumer, and thus their legitimate interest does not seem to exist.

 

In so doing, the Court essentially limits consumer protection not only to the pre-contractual phase and to the contested idea of informed decision-making, but also to the protection from being “misled by unclear, ambiguous or incomplete information”. As mentioned, that seems to rather be the domain of the Unfair Commercial Practices Directive, in which a link with the CRD is indeed established (cf. Article 7(5) UCPD). Moreover, the way in which the “average consumer” notion is constructed in the case at hand appears at least debatable. As a reference point for undertaking the balancing exercise the Court refers to the consumer, “who is reasonably well informed and reasonably observant and circumspect with respect to the different rights which he or she may exercise under a guarantee or to the real identity of the guarantor” (operative part). However, information about those very factors is precisely what the consumer should be equipped with by means of mandatory disclosure. Overall, it can be questioned, in my view, whether the reading adopted by the Court in the case at hand corresponds with the requirement of a “high level” of consumer protection.

 

 

EU Commission consultation on digital fairness

The Commission has just announced a public consultation on digital fairness. The intitative comes within the New Consumer Agenda and it aims to analyse whether additional action is needed to ensure an equal level of fairness online and offline.

This fitness check (evaluation) will look at the following pieces of EU consumer protection legislation to determine whether they ensure a high level of protection in the digital environment:

• the Unfair Commercial Practices Directive 2005/29/EC
• the Consumer Rights Directive 2011/83/EU
• the Unfair Contract Terms Directive 93/13/EEC

All stakeholders are invited to respond until 20 February 2023.

Right of withdrawal, leisure activities and intermediaries - CJEU in Eventim (C-96/21)

Earlier this year in C-96/21 CTS Eventim the CJEU delivered another interesting judgment on the interpretation of Directive 2011/83/EU on Consumer Rights (CRD). As with most cases on CRD, this case tackles the matter of the right of withdrawal by providing an interpretation of Article 16(l) that exempts  'services related to leisure activities if the contract provides for a specific date or period of performance' from the right of withdrawal. 

Facts

The consumer ordered tickets through an online booking platform operated by CTS Eventim, an intermediary selling concert tickets organized by third parties. The concert that was due to take place in Germany was cancelled because of German administrative restrictions amid the COVID-19 pandemic, with a possibility to be held at a later date. In accordance with German legislation, CTS Eventim, acting on behalf of the concert organizer, sent the consumer a voucher in the value of the ticket price. The consumer however asked CTS Eventim for reimbursement of the ticket price and costs incurred and thus, according to the referring court, implicitly asked to withdraw from the contract.

Question

The question referred to the CJEU was: Would a situation where the trader (an intermediary acting in its name and on behalf of the organizer of the leisure activity) does not directly provide the consumer with a service related to leisure activity but sells the consumer a right of access to such service fall under the exception of Article 16(l)?

Ruling

The CJEU noted that the contract for the transfer of a right falls within the concept of a ‘service contract’ under Article 2(6) CRD, and insofar as Article 16(l) covers all services provided in the leisure sector, due to the word ‘related’, the provision is not limited solely to services directly relating to the pursuit of leisure activity (para 38). The transfer of a right of access to a leisure activity constitutes, in itself, a service related to a leisure activity (para 39). In this regard, it is irrelevant that a service is provided by the intermediary and not by the organizer of a leisure activity itself (para 43). 

However, CJEU looked at the objective of Article 16(l), and referring to Recital 49 noted that the objective is to protect traders against the risk associated with the setting aside of some capacity which, if a right of withdrawal were exercised, the trader may find difficult to fill, inter alia, in the case of cultural or sporting events (para 44); and referred to its previous case-law where it was established that the aim of Article 16(l) is to protect the interest of the providers of certain services against disproportionately suffering from consequences of the right of withdrawal (para. 45). The CJEU concluded that as long as the risk falls on the organizer of the activity, the transfer of a right of access to that activity by an intermediary will constitute a service related to that activity. It is irrelevant whether, on the date on which the consumer invokes the right of withdrawal, it is possible for the trader to fill in the empty capacity, in particular by means of the resale of the ticket. ‘The application of Article 16(l) of Directive 2011/83 cannot depend on such an assessment of the circumstances of each case' (para 48).

The CJEU also considered the second part of the exemption and concluded that a contract for the transfer of a right of access to a leisure activity must be regarded as providing for a specific date or period of performance since that activity is scheduled to take place on a specific date or within a specific period (para 53).

The CJEU concluded that the exception from the right of withdrawal may be relied on against the consumer, if, first, the termination of the obligation to perform that contract vis-à-vis the consumer by means of withdrawal would place the risk linked to the setting aside of the capacity thus released on the organizer of the activity concerned and, second, the leisure activity to which that right gives access is scheduled to take place on a specific date or within a specific period.

Further thoughts

This case provides an important interpretation of the CRD in distance contracts concluded via intermediaries, given that the CRD is silent on regulating contracts concluded via intermediaries.

The CJEU provides a good explanation of the rationale for the exception. It is expected of traders, not of intermediaries, to fill in capacities that are created by the right of withdrawal, e.g. resell the ticket that is for a specific date to avoid loss. 

The CJEU also provides substantiated reasoning why the exception should apply in the same way when contracts are concluded directly with service providers and indirectly, with intermediaries. The rule does not change whether or not the ticket is sold by an intermediary or the direct service provider, as long as the risk is born by the direct service provider, in this case, the organiser of the concert. 

However, the present case does not give full guidance on how Article 16(l) CRD should apply in other, similar settings. The present case defines intermediaries as those acting in their own name but on behalf of their principal. Given the emphasis of the risk being on the organiser of the event, the same solution would probably apply with intermediaries acting in the name and on behalf of their principal. However, the situation is less clear when the risk is not on the direct service provider, the organiser of the event, but on the online seller who sells tickets via its website. This would occur in a situation when the tickets are bought for resell. Although in this case online sellers would probably not be classified as intermediaries in law, from a consumer's point of view, there may be confusion and the two kinds of sellers might be considered to both be intermediaries. For instance, consumers would consider Skyscanner an intermediary whereas it is a travel agent. We could argue that the regime should again be the same because the rationale for the exemption seems to be the inability of traders to fill in the capacities that are created by the right of withdrawal. For example, just like organisers, intermediaries might struggle to resell tickets for a particular date and as a result, suffer loss. Overall though, this interpretation cannot easily be deducted from the reasoning in the present case.

Since this case and the earlier Tiketa C-536/20 case, the case law seems to move in a direction of considering including intermediaries within the scope of CRD; in the next case on this topic, the CJEU should take the opportunity to express views on the classification of various (intermediary) sellers and the legal regime(s) applicable to them.

Can we seek compensation for a GDPR breach if it caused great upset or inner discomfort? The AG Opinion in C-300/21, Österreichische Post

According to Article 82(1) of the GDPR any person who has suffered material or non-material damage as a result of an infringement of the Regulation has the right to receive compensation from the controller or processor for the damage. It turns out that the exercise of this right in practice raises some questions, especially if the damage caused by the infringement would consist of a "great upset" or a "loss of confidence". Recently, the Advocate General Campos Sánchez-Bordona commented on this issue (see: case C-300/21 Österreichische Post). 

Facts of the case

The case concerns the processing of personal data by an Austrian postal company (Österreichische Post AG). The company had been collecting personal data on the Austrian public's affinities for political parties since 2017. Information on political preferences was inferred based on various socio-demographic characteristics. Such processing did not please "UI" (that's how the data subject is called by the AG in the opinion). More specifically, he did not like the way the company classified him as a person sympathizing with one of Austria's political parties. UI therefore entered into a dispute with the company, pointing out, for instance, that he had not consented to the processing of his personal data. As we read in the opinion, UI „was upset by the storage of his party affinity data and angered and offended by the affinity specifically attributed to him by Österreichische Post” (para. 10). What is more, he claimed that such a „political affinity attributed to him is insulting and shameful, as well as extremely damaging to his reputation” (para. 11). Therefore he demended compensation of EUR 1 000 in respect of non-material damage (inner discomfort).

Both the court of first instance and the appellate court rejected his claim. However, following an appeal to the Oberster Gerichtshof (Supreme Court, Austria), the court raised several doubts, referring the following questions to the Court of Justice for a preliminary ruling:

"1. Does the award of compensation under Article 82 of the GDPR also require, in addition to infringement of provisions of the GDPR, that an applicant must have suffered harm, or is the infringement of provisions of the GDPR in itself sufficient for the award of compensation?

2. Does the assessment of the compensation depend on further EU-law requirements in addition to the principles of effectiveness and equivalence?

3. Is it compatible with EU law to take the view that the award of compensation for non-material damage presupposes the existence of a consequence of the infringement of at least some weight that goes beyond the upset caused by that infringement?"

Opinion of the AG

The AG presented an interesting analysis of Article 82 of the GDPR, taking into account different types of interpretation (literal, historical, contextual and purposive). There are several important statements that deserve attention: 

1. Assuming that under Article 82 of the GDPR a data subject could be awarded compensation for a breach of the Regulation, despite the absence of any damage, would be inconsistent with the fundamental purpose of civil liability. This purpose is to compensate for the damage suffered by the data subject. If the damage could not be identified, the compensation then awarded would not fulfil the aforementioned function, but would be more like a punishment and a sanction for the infringer (paras 29-30). It is true that punitive damages may exist in both EU and national law, but the GDPR does not contain this type of reference (paras 39, 44, 49-50).

2. The AG's position is that a mere breach of the GDPR does not give rise to a presumption of automatic harm to the data subject (paras 56-59). As can be inferred from the Opinion, this is the presumption made by the parties to the proceedings, indicating that a breach leads to a loss of control over the data and thus causes harm to the data subject. However, the AG considers that not every loss of control over data necessarily leads to harm (para. 62) and, furthermore, that giving data subjects as much control over data as possible may not necessarily be derived from the GDPR provisions (para. 74). He states: „where a data subject does not consent to processing and processing is carried out without another legitimate legal basis, that is not a ground for the data subject to receive financial compensation on account of the loss of control over his or her data, as though that loss of control itself amounted to damage that is eligible for compensation” (para. 77).

3. The compensation for non-material damage regulated by Article 82 of the GDPR does not cover the mere upset that a person may feel due to a breach of Regulation 2016/679. It is up to the national courts to determine when, due to its characteristics, a subjective feeling of displeasure can be considered as a non-material damage in a given case (conclusion - para. 117).

Given the facts of the case, the AG's answers to the preliminary questions do not seem surprising. Nonetheless, some views are arguable, such as that „it is not straightforward to conclude from the GDPR that its objective is to grant data subjects control over their personal data as a right in itself” (para. 74). 

In my view, one of the primary objectives of the GDPR is precisely to give individuals control over their data, or even to 'restore' that control. This conclusion can also be drawn based on the provisions of other data flow regulations in the EU, such as the Data Governance Act* or the Data Act proposal**. It is clear that the opinion was given based on the GDPR provisions, but I guess they should not be interpreted without regard to the broader regulatory context. That said, we eagerly await the Court's final verdict.

* For instance, in recital 5 of the DGA it is stated that it "is necessary to increase trust in data sharing by establishing appropriate mechanisms for control by data subjects". A similar idea is expressed in recital 30 in the context of data intermediation services: "data intermediation services providers seek to enhance the agency of data subjects, and in particular individuals’ control over data relating to them". Maybe it is not directly indicated that the purpose of the DGA is to "grant control over data", but still this can be deduced from both the content and the particular objectives of the legal instruments adopted in the DGA. 

** See, for example, recital 78 of the proposal: "To foster further trust in the data, it is important that safeguards in relation to Union citizens, the public sector and businesses are implemented to the extent possible to ensure control over their data". Again, it is not stated expressly, but without ensuring control over data, the other objectives of the regulation will not be achieved. From this perspective, granting control over data may appear as one of the purposes. 

Second Annual Digital Consumer Law Event

On the 21st of November 2022, the European Commission organised its second Annual Digital Consumer Event to reflect with the general public, academics, consumer and business associations, as well as authorities, on the problems consumers currently face in the digital transition.

The expert panels focused on the following topics: 

• Online consumer vulnerabilities: shedding light on dark patterns, personalisation, and structural asymmetries
• Online consumer purchases: challenges raised by digital subscriptions, virtual items, and the addictive use of digital products
• Online consumer contracts: mapping unfair contract terms and the lack of transparency, our Professor Luzak was one of the participants of this panel.

Our readers may be interested to know that the recording of the event is available to watch (see the link here).

Enforcing EU Consumer and Market Law - 10 Years of the Journal of European Consumer and Market Law - conference

On 15-16 December 2022 the editors of the Journal of European Consumer and Market Law (EuCML) warmly invite all blog readers to join the online conference celebrating 10 years of the journal! The conference will take place on Google Meet (log-in, no password needed):

meet.google.com/xyq-vtfj-drj (Thursday 15 December)

meet.google.com/etx-ddhi-aco (Friday 16 December)

About the conference:

"EU Consumer and Market Law is an essential engine of European Integration. It is therefore one of the key tools for facing two of the crucial challenges of the current and next decades: Digital Revolution and Environmental Sustainability.

The last few decades have seen consumer law elevated to being a central pillar of European Union policy making, with the EU setting a high level of protection for consumers in all industries and markets. This has led to the adoption of many legislative instruments all requiring complex technical knowledge. In addition, the Fourth industrial revolution and recent digital developments have again opened the floodgate for new regulatory initiatives tackling critical issues such as sustainability, global electronic commerce and the liability of digital market actors.

Meanwhile, the common European rules regulating different areas of consumer law, such as the unfair commercial practices, unfair contract terms, consumer sales or dispute resolution continue to evolve and remain of utmost importance for both online and offline transactions and market interactions. The harmonisation of consumer laws has in principle raised the level of protection of consumers in the internal market as businesses offers goods, services and digital content across borders within and outside of the European Union. However, the application of consumer law is as difficult as it has always been, prompting the need for yet further reforms.

The Journal of European Consumer and Market Law (EuCML) offers an up-to-date and critical analysis of all new developments and revisits old ones to pre-empt market needs and suggest viable solutions. In particular, EuCML offers a fresh perspective on consumer law that goes beyond the traditional understanding of consumer law as consumer protection law. It understands consumer protection from a market perspective, taking into account the requirements and realities of doing business in B2B and B2C markets. 

The EuCML welcomes analysis that encompasses work aimed at protecting consumer stricto sensu but also as users of services, passengers, insurance policy holders etc. 

EuCML also offers a forum to discuss the black letter law implications of the latest Member States’ Courts and CJEU interpretation but also sustainability concerns, the effects of the pandemic of Covid-19, data commercialisation, issues of power in markets or even social aspects. 

EuCML is available in paper as well as online on HeinOnline, Kluwerlawonline and Beck-online.

The EuCML is focused on bringing scholarship and the sharpest thinking on the issues that matter to the consumer and the market of the 21st century."

The conference programme is as follows:

THURSDAY 15 DECEMBER 2022, 09:00 - 17:30 (CET)

9:00 I. OVERARCHING CHALLENGES IN EU CONSUMER AND MARKET LAW

Introduction: Alberto De Franceschi (University of Ferrara)

Chair: Christoph Busch (University of Osnabrück)

Wish or reality: reconciling consumers’ needs and traders’ goals

Verica Trstenjak (former Advocate General at the Court of Justice of the European Union)

Protection of weaker parties in smart contracts 

Andrea Stazi (European University of Rome and National University of Singapore)

Market Citizenship: Fostering the Green Transition through European Private Law

Francesca Bertelli  (University of Brescia)

10:00 Discussion

10:20 Coffee Break

10:35 II. THE FUNCTIONALITY OF THE INFORMATION MODEL: PRECONTRACTUAL INFORMATION DUTIES AND DISCLOSURES

Chair: Joasia Luzak (University of Exeter)

The Disclosure Dream – Towards a New Transparency Concept in EU Consumer Law

Rolf H. Weber (University of Zurich)

Adequacy and Effectiveness of Precontractual Information Duties in Car Flexible Finance Agreements

Michele Ciancimino (LUMSA University of Palermo)

Ex officio enforcement of the Consumer Rights Directive: The Dutch Perspective

Charlotte Pavillon (University of Groningen) and Leonieke Tigelaar (University of Groningen)

11:35 Discussion

11:55 Coffee Break

12:10 III. UNFAIR TERMS IN CONSUMER CONTRACTS

Chair: Kristin Nemeth (University of Innsbruck)

Effective consumer protection in times of global challenges and the role of corrective remedies: from punitive nullity to contract renegotiation

Paola Iamiceli (University of Trento) 

The Court of Justice on Unfair Terms and Supplementation of the Contract: How Far Is Too Far?

Riccardo Serafin (University of Turin)

12:50 Discussion

13:10 Lunch Break

14:00 IV. UNFAIR TERMS IN CONSUMER CONTRACTS

Chair: Vanessa Mak (University of Leiden)

Unfair contractual terms and consequences for B2C agreements 

Chiara Sartoris (University of Florence)

Unfair terms of consumer contracts in the enforcement proceedings from the Greek perspective

Evangelia (Elina) Asimakopoulou (Neapolis University Pafos Cyprus and Aristotle University of Thessaloniki)

14:40 Discussion

15:00 Coffee Break

15:15 V. VOLKSWAGEN CASE AND THE EQUILIBRIUM BETWEEN CONSUMER AND MARKET PROTECTION

Chair: Alberto De Franceschi (University of Ferrara)

Manipulated software as a minor lack of conformity? The CJEU Case Law

Rita Simon (Czech Academy of Sciences)

Volkswagen Case and Termination of Contract: The Spanish experience

Carlos Villacorta Salís (Madrid Law Firm)

15:55 Discussion

16:15 Coffee Break

16:30 VI. PRODUCT LIABILITY AND CONSUMER LAW

Chair: Geraint Howells (National University of Ireland, Galway) 

The Last Decade of Product Liability Case Law: How the CJEU Shaped the Proposal for a New Directive

Edoardo Ruzzi (University of Roma Tre)

A tale of two cities? Fennia v Philips and Article 7 of the Product Liability Directive Update

Francesca Gennari (University of Bologna)

17:10 Discussion

17:30 Interim Conclusions

FRIDAY 16 DECEMBER 2022, 08:30 - 17:30 (CET)

08:30 VII. CONSUMER AND MARKET PROTECTION IN THE DIGITAL AGE

Chair: Mateja Durovic (King’s College London)

Profiling Consumer by Big Data: The Interplay Between the GDPR and the UCPD 

Maja Nisevic (Katholieke Universiteit Leuven)

European Regulation of Dark Patterns before and after the DSA 

Alexander Egberts (Max Planck Institute for Research on Collective Goods, Bonn)

Consumer Protection Between Persuasion and Manipulation

Ludovica Sposini (Sant’Anna School of Advanced Studies, Pisa)

Reputational systems between market needs and consumer protection 

Annarita Ricci (University G. d’Annunzio of Chieti-Pescara)

09:50 Discussion

10:10 Coffee Break

10:25 VIII. CONSUMER AND MARKET PROTECTION IN THE DIGITAL AGE

Chair: Mateusz Grochowski (Max Planck Institute for Comparative and International Private Law)

Locating Online Platforms in the Right Place: Between the Digital Services Act and the Liability Law 

Cemre Polat (Ankara Medipol University) and Ş. Barış Özçelik (Bilkent University)

Coty v Amazon: Could Lessons be Taken for the Liability of Platforms for Defective Products?

Gökçe Kurtulan Güner (Istanbul Bilgi University)

11:05 Discussion

11:25 Coffee Break

11:40 IX. NATIONAL REPORTS

Chair: Jorge Morais Carvalho (NOVA University, Lisbon)

The jurisprudential conflict on the application of consumer law in Slovenia: consumer law as a sword or a shield?

Petra Weingerl (University of Maribor)

Ten Years of Enforcement of Croatian Consumer Law 

Emilia Mišćenić (University of Rijeka)

12:20 Discussion

12:40 Lunch Break

14:00 X. COMPETITION LAW IN CONSUMER MATTERS AND THE CHALLENGE OF ENERGY MARKETS 

Chair: Rupprecht Podszun (University of Düsseldorf)

Big Data and the Interplay between Competition Law, Data Protection and Consumer Law: Perspectives from the Italian Experience

Cristina Poncibò (University of Turin)

The Protection of Market and Consumers Damaged by Infringements of Competition Law in a Recent Italian Supreme Court Judgment: a Problem of Effectiveness 

Silvia Romanò (University of Rome Tor Vergata) 

Price Adjustment Clauses in Electricity Supply Consumer Agreements: Breaching the Thermopylae “Hotgates” of Transparency or just a legitimate “Trojan Horse” for the recovery of the production cost? 

Evangelos Margaritis (University of the Aegean)

15:00 Discussion

15:20 Coffee Break

15:35 XI. PUBLIC ENFORCEMENT AND PROCEDURAL ISSUES IN CONSUMER PROTECTION

Chair: Evelyne Terryn (Katholieke Universiteit Leuven)

Administrative enforcement of consumer law rules: the role of the Italian Consumer and Market Authority on digital platforms 

Federica Casarosa (European University Institute, Florence)

Collective consumer redress through debt collection services in Germany – A critical analysis of a rare case of ‘coding’ in civil law countries 

David Markworth (University of Cologne, Germany)

Influencing the EU Consumer and Market Law? The Office of Competition and Consumer Protection in Poland and Influencer Marketing

Monika Namysłowska (University of Lodz) and Karolina Sztobryn (University of Lodz)

16:35 Discussion

16:55 Coffee Break

17:10 XII. PUBLIC ENFORCEMENT AND PROCEDURAL ISSUES IN CONSUMER PROTECTION

Chair: Alberto De Franceschi (University of Ferrara) 

The importance of Redemption in EU Civil Procedural Consumer Law

Ioannis Revolidis (University of Malta) 

The enforcement of consumer financial protection rules 

Catalin-Gabriel Stanescu (University of Copenhagen)

17:50 Discussion

18:10 Conclusions

C-405/21 Nova Kreditna Banka Maribor: further interpretation of the test of fairness in the UCTD

In spite of the global financial crisis that started in 2008 is now long behind us, the consequences of this crisis reflected on their loan contracts are still felt by m European consumers. Their fight for justice continues in national courts and the CJEU is also kept busy with referrals for preliminary ruling on  the interpretation of Directive 1993/13/EC on Unfair Contract Terms (UCTD). Most of the these confirm earlier interpretations of the CJEU, however, recently the CJEU was given the chance to further develop the test of fairness in the UCTD.

According to Article 3(1) of the UCTD a 'contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.' 

The test of fairness is therefore comprised of two open textured general clauses: 'singificant imbalance' and 'good faith'. The wording of the provision makes it unclear and it was long debated in academic circles whether a contract term to be unfair must be contrary to 'good faith' and cause a 'significant imbalance' between the contracting parties to the detriment of the consumer, or whether it is enough that the term is either causing 'singificant imbalance' or that it is contrary to 'good faith' (see the summary of academic debates here).

Following the minimal character of the UCTD (Article 8), some Member States clarified the controversy. The Slovenian Consumer Protection Act, provided for the two conditions alternatively. Thus under Slovenian law, a contract term could be unfair either because it is causing a significant imbalance or because it is contrary to good faith. However, when the Court of Appeal in Maribor was to apply the test, they were unsure in its compatibility with the UCTD, and since, as the court rightly acknowledged, there was no previous case-law that would clarify this relationship, in C-405/21 Nova Kreditna Banka Maribor (another case on a consumer loan denominated in Swiss francs) they referred the following question to the CJEU:

Whether Article 3(1) and Article 8 must be interpreted as precluding national legislation which permits a finding that a contractual term is unfair where it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, without, however, carrying out an examination of the requirement of ‘good faith’.

Acknowledging the unclarity of the provision and being of the opinion that the Slovenian solution might be able to provide for a higher level of protection than the UCTD, the CJEU concluded that such a national provision is not contrary to EU law.

Cars with emissions’ systems infringing environmental protection – CJEU on non-conformity in Case C-145/20 DS v Porsche Inter Auto GmbH & Co. KG, Volkswagen AG

On July 14, 2022, in DS v Porsche Inter Auto GmbH & Co. KG, Volkswagen AG (Case C-145/20), the CJEU ruled on the non-conformity of a vehicle which, though EC type-approved, had an emissions’ regulating systems which did not comply with the regulation aimed at guaranteeing a high level of protection of the environment and at improving air quality within the EU. 

In 2013, a consumer bought in Austria a Volkswagen car, Euro 5 generation from a Volkswagen independent authorised dealer. The software operating the exhaust gas recirculation (EGR) worked in two modes (‘switch system’): the first one was activated exclusively in the laboratory, during the approval test; the second mode was activated under normal driving conditions. The switch system was not disclosed to the German authority which granted the type-approval, regulated under Regulation No. 715/2007 on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6). Receiving a type-approval certifies that a type of vehicle ‘(…) satisfies the relevant administrative provisions and technical requirements’ (Article 3(5) Directive 2007/46 establishing a framework for the approval of motor vehicles). Had the authority been aware of the system, the approval would have not been granted. However, the consumer would have nevertheless purchased the vehicle.

In 2015, the German authority ordered the producer (Volkswagen) the withdrawal of the switch system in order for it to be in compliance with Regulation No. 715/2007. In 2016, the same authority considered the software update carried out by the producer to be sufficient in order to restore conformity, thus not withdrawing or revoking the type-approval previously granted. The software update consisted in the following: the emission-reducing mode was activated under normal driving condition, ‘only when the external temperature was between 15 and 33 °C (‘the temperature window’)’ (para 34). In light of this, the consumer brought an action before the Regional Court of Linz requesting either the reimbursement of the price upon returning the vehicle, or a reduction of the price paid, or – finally – to have the seller and producer declare they are ‘liable for damages as a result of the presence of a prohibited defeat device [i.e., the updated software with the temperature window function] within the meaning of Article 5(2) of Regulation No 715/2007’ (para 35). Both the Regional Court of Linz, and the Higher Regional Court of Linz dismissed the action. The consumer appealed the decisions on a point of law before the Supreme Court of Austria which referred the case to the CJEU in 2020. 

Contrary to the courts of first and second instance, the Supreme Court considered the switch system to be a ‘defeat device’ thus in breach of Articles 3(10) and 5(2) of Regulation No 715/2007. Pursuant to Article 3(10) a ‘“defeat device” means any element of design which senses temperature (…) for the purpose of activating (…) the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use’. Pursuant to Article 5(2), then, the use of defeat devices is prohibited, save for three exceptions related to technical matters. One of these exceptions (letter a)) is that the device’s existence ‘is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle’. Further, the Supreme Court considered in any case the vehicle to be defective under Austrian Law in that the defeat device had not been disclosed to the German authority in charge of the type-approval. 

The CJEU ruling is divided into three parts. 

1) To the question whether a car (that is authorised to go on the road because it has received the EC type-approval) can be considered in conformity to the contract (pursuant to Article 2(2)d of Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees), the CJEU ruled as follows.

According to Directive 2007/46, with the EC type-approval Member States certify ‘that a type of vehicle (…) satisfies the relevant administrative provisions and technical requirements’ laid down in said Directive (Article 3(5)). Only the vehicles which comply with the Directive may be sold, registered or put into service within the EU (Article 4(3)). Manufacturers must demonstrate compliance with the type-approval (Article 4(1) Regulation No. 715/2007) and must deliver a certificate of conformity to the consumer, together with the vehicle (Article 18(1) Directive 2007/46). In light of this, it is evident that a consumer who receives such certificate can reasonably expect compliance with Regulation No. 715/2007 and that, failing that compliance, Article 2(2)(d) shall be interpreted as meaning that the vehicle ‘does not show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods’ (para 55). The fact that the EC type-approval has been granted does not change this outcome, in that, pursuant to Directive 2007/46, once an unlawful element of a vehicle has been discovered after approval, the latter can be withdrawn from the authority or a new type-approval can be granted after consultation of the Member State with the manufacturer. 

2) Asked whether the defeat device was in place for safety reasons and thus whether it may be considered an exception to the prohibition laid down in Article 5(2) of Regulation No. 715/2007, the CJEU then observed the following. 

The defeat device ‘which guarantees (…) compliance with the emission limits (…) only in the temperature window (…) can be justified under that provision only where it is established that that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the EGR system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven’ (para 81). The CJEU thus excluded the application of Article 5(2)(a) to all switch systems operating in a temperature window, otherwise allowing the constant derogation to the prohibition. It observed that ‘a defeat device which, under normal driving conditions, operated during most of the year in order to protect the engine from damage or accident and ensure the safe operation of the vehicle could not fall within the exception provided for in Article 5(2)(a)’ (para 81). 

3) Finally, the referring court asked whether the defeat device may be considered a minor lack of conformity within the meaning of Article 3(6) of Directive 1999/44 which would have not stopped the consumer from purchasing the car. 

The CJEU noted that because Directive 1999/44 does not define what a minor lack of conformity is, this shall be determined by referring to ‘everyday language, while also taking into account the context in which it occurs’ (para 88). A lack of conformity shall thus be, first of all, of ‘minor importance’ (para 89). Secondly, as regards the context: provided that a vehicle with such defeat device cannot be approved and cannot comply with the emission limits laid down in Regulation No. 715/2007, it is clear that the presence of the device ‘cannot be regarded as being a minor lack of conformity within the meaning of Article 3(6) of Directive 1999/44’ (para 96). 

The CJEU thus found that the vehicle, though having received the EC type-approval and hence being authorised to be used on the road, was not in conformity with the contract in that the system to control emissions did not comply with the rules on the guarantee of environmental protection and improvement of air quality in the EU. Provided that the lack of conformity was not of minor importance, the consumer is in principle entitled to any of the four legal remedies: repair or replacement of the car, the reduction of the price paid or even the rescission of the contract. The evaluation is left to the national court.

Consumer protection extended to mixed-purpose contracts - CJEU in S.V. (Immeuble en copropriété) (C-485/21)

Last Thursday in the case S.V. (Immeuble en copropriété) (C-485/21) the CJEU provided us with new guidance as to the scope of the notion of a consumer.

Image by Spencer Wing from Pixabay    

In the given Bulgarian case, an owner of an apartment in a building of a housing association (in co-ownership) concluded a contract with a company that was to provide management and maintenance of the communal areas of that building. The contract included terms on late payment fees, which ended up being contested as to their fairness (excessive amounts and lack of transparency) under the UCTD. The question was whether consumer protection framework was applicable at all to this situation.

The CJEU reminds that the notion of a 'consumer' is objective in nature and should be assessed by reference to a functional criterion (para 25). This means that is only relevant to consider whether the contract was concluded in the course of activities outside a trade, business or profession. Consequently, what is required of national courts it to establish whether the party in the given case, a natural person, 'does not use that apartment for purposes which fall exclusively within her trade, business or profession', as that would exclude that party from the scope of consumer protection (para 27). This is a welcomed confirmation that the 'consumer' notion applies broadly in mixed-purpose contracts, that is when consumers use goods for a mix of personal and professional purposes. The CJEU in this paragraph seems to imply that any mixed-purpose contract could be covered by consumer protection framework (by referring to 'exclusive' use for professional purposes). Further, in paragraph 32 of the judgment the CJEU specifically mentions situations where natural persons could use an apartment 'constituting his or her personal home for professional purposes also, such as in the context of salaried teleworking or in the exercise of a liberal profession'. Again, this is a great example of a modern, progressive approach to the interpretation of the notion of a 'consumer', considering the current realities of many goods being used simultaneously or alternatively for personal and professional purposes. 

Another interesting observation of the CJEU is that it is irrelevant whether some of the activities of a provider of services or a seller 'are the result of the need to comply with specific requirements relating to safety and town and country planning, laid down by the applicable national law' (para 30). Contractual terms reflecting such mandatory statutory provisions may not be tested for unfairness, pursuant to Article 1(2) UCTD, but that exclusion does not stretch as far as to encompass the contract as a whole. Consequently, other terms in that contract may be subject to the unfairness test (para 31). This is consistent with the past narrow interpretation of various UCTD's exceptions to its scope of application.

Digital Services Act published

For anyone trying to look up the status of the Digital Services Act, please note that it has been published on 27 October 2022 in the Official Journal L 277, page 1. 

OECD report on Dark Patterns

 Yesterday, aka 26 October 2022, the OECD has released a report on Dark Patterns which had been in the making for almost two years. LLM students who would like to write about the topic or just about anyone looking for a clear intro to the subject - this report is your friend! It contains not only a helpful classification of different types of dark patterns but also a quite comprehensive review of relevant regulatory frameworks/interventions, known case-law and much (if not all, and if arguably too US-centred and English-based) of the literature you may also want to look at, including... Joasia's 2019 JCP paper The Transparent Trap! Kudos there.

A working definition is provided at the outset which may or may not gain traction in the field: dark patterns, accordingly, are 

"business practices employing elements of digital choice architecture, in particular in online user interfaces, that subvert or impair consumer autonomy, decision-making or choice. They often deceive, coerce or manipulate consumers and are likely to cause direct or indirect consumer detriment in various ways, though it may be difficult or impossible to measure such detriment in many instances."

[The first part of the report, where dark patterns are typified and their impact assessed, I skip for now - but you can find it all online!]

The report acknowledges that more enforcement is necessary in the EU, while ultimately praising the UCPD's relative ability to address the problem in comparison with other instruments: if on the one hand resonance with the black listed items in the annex makes it possible to address certain black patterns with a degree of legal certainty, the report observes, the "principle-based" prohibition of unfair commercial practices works quite well to cover technological and commercial developments like the ones at hand. 

One critical point that is (thankfully) mirrored in the report is known criticism of the average consumer standard: this standard is hard to square with consumers' apparent vulnerability to dark patterns & other online perils &, the report observes, seems particularly problematic in the context of increasing online personalisation. The report also highlights criticism of disclosure rules, in particular as a way of preventing consumers from falling for dark traps: it turns out, the report concludes, that all experiments trying to measure the effects of disclosures in this area failed to detect any serious improvement. Hence the relevance of information may be limited to broader education campaigns and possibly to a limited set of dark patterns. 

The report also interestingly reviews examples of technical supports that are being developed - essentially, dark pattern-blockers for one's browser. These are, apparently, useful in some cases but less so when the dark patterns is not to be "written away" in code (p 47). I would like an app like that though!

As a scholar who reads Law & Econ work with a mix of interest and skepticism, I was less impressed by the report's discussion of nudges on page 37, under "Digital choice architecture". The title reflects a trend that has been going on for a long time of course; the report, however, brings together under one technique concerns that may need to be kept separated. "Privacy by design", that is mentioned as example, is not the same as a "bright pattern" based on extrapolating "welfare enhancing" choices from supposed "preferences or expectations". While the report necessarily gives a limited overview on each issue, conflating privacy protection with "consumertarian" views and hard-core nudge advocates is to my mind quite problematic.

Anyway, this is really a good starting point but also, as far as I can tell, a fairly comprehensive restatement that those already in the debate will also benefit from. Recommended read!

18th International Association of Consumer Law Conference (IACL)

IACL conference is back in 2023! After the pandemic, the International Association of Consumer Law is picking back up its activity and organising its 18th event - in Hamburg on July 19-21. The call for papers is open until December 16th, and you may find more details on it on the attached photos as well as here.

2nd Annual Digital Consumer Event of the European Commission

The European Commission organises the 2nd Annual Digital Consumer Event on November 21st. The event will be held in English and streamed online thus it will be relatively easy for our readers to participate in it. You may register here: Commission website.

Three panels will be devoted to various concerns related to the digital environment: online consumer vulnerabilities; virtual traps and possible addiction triggers of online purchases; unfair terms and lack of transparency in online contracting.

Administrative payment orders for airlines - CJEU in LOT (C-597/20)

On 29 September the CJEU issued another judgment on the interpretation of Regulation 261/2004 in the case LOT (C-597/20). This judgment refers to a less commonly referred to provision of this Regulation, its Article 16, obliging the Member States to assure the effective enforcement of its other provisions. Whilst it is clear from this provision that the Member States need to designate a body responsible for the enforcement, the measures that are at the disposal of this body are referred to only in general terms: measures necessary to ensure that the rights of passengers are respected. 

In the case at hand, the question was whether the designated body in Hungary was authorised to order an airline to pay out compensation for a delayed flight to passengers affected by this delay who have made individual complaints to that body. Previously, in the judgment Ruijssenaars and Others (see our comment No administrative fines for misbehaving airlines... and Air passengers denied compensation should go to court) the CJEU interpreted paragraphs 2 and 3 of Article 16 Regulation 261/2004 as not requiring designated bodies to act on any individual passenger complaints and not being required to issue administrative fines for each individual infringement of the Regulation (paras 24 and 25). This aimed at protecting the bodies from becoming overwhelmed by individual complaints and ensuring they have space to conduct their general market monitoring obligations. 

In the LOT judgment the CJEU had an opportunity to clarify that pursuant to Article 16 Regulation 261/2004 the Member States have discretion what powers to award to the designated bodies. This could mean that they choose to confer enforcement powers in individual passenger complaint cases on the designated body (paras 26-27). The national solutions must, however, provide for an option for passengers to seek further compensation for their losses before a court, pursuant to Article 12 Regulation (para 29). This means that the administrative procedure may not obstruct the passenger's or the air carrier's access to an effective, judicial remedy, giving effect to Article 47 of the Charter (paras 36-37).

This judgment is a welcomed clarification, as it may embolden the Member States to confer more powers on the bodies designated to enforce air passengers protection. The tricky part - how to avoid a flood of complaints - applies to both administrative bodies and courts, and could be helped by airlines complying more with the Regulation 261/2004 in the knowledge that passengers may claim sums owned them in various ways.