Comparison websites outside scope of comparative advertising: CJEU in HUK-Coburg (C‑697/23)

For those who are on the lookout for good value for money, price comparison websites are a go-to tool. While ‘comparative advertising’ is regulated by Directive 2006/114/EC, it is unclear whether comparison services offered by third-party websites fall within its scope. The CJEU clarified this point in Case C‑697/23.

The case concerned Check24, a website that compares various products, including insurance packages, by awarding scores based on criteria like price. The website also enables, as an intermediary, the conclusion of contracts between customers and insurance providers. HUK-Coburg, whose insurance products were listed on Check24, sued the platform for violating the objectivity requirement under Art. 4(c) of Directive 2006/114/EC. Though the question pertains to the interpretation of Art. 4(c), the CJEU instead focused on the scope of the Directive, namely its definition of ‘comparative advertising’ under Article 2(c).

The CJEU first recalled that the key element of ‘comparative advertising’ is the identification of ‘a competitor’ – either of the advertiser or of the advertised goods/services. Thus, Check24 must be a competitor of HUK-Coburg to fall under the scope of the Directive (para 28). To assess this, the CJEU proposed ‘an analysis of the possible substitutability of the services offered by the parties […] in order to determine whether they operate in the same market’ (para 34, emphasis added). Pending further verification by the referring court, the CJEU pointed out that Check24 itself does not provide insurance services but merely offers comparison and intermediary services, meaning that it offers non-substitutable services to those of HUK-Coburg and operates in a different service market (para 37). The concept of ‘comparative advertising’ under Article 2(c) thus does not include such an online comparison service or such a mere intermediary service.

While it makes sense that third-party comparison services are not regulated as comparative advertising between competitors, these services are still subject to other consumer protection instruments, such as the Consumer Rights Directive and Unfair Commercial Practices Directive, which, according to the Commission, remain under-enforced.

AG De La Tour on Volvo and others (C‑30/20): Article 7(2) of Brussels I establishes international and domestic jurisdiction in cases of tort harms and anticompetitive practices

Case C-30/20 (AG’s Opinion here) concerns the interpretation of Article 7(2) of Regulation (EU) No 1215/2012 (Brussels I), which states that a person can be sued in the place where the harmful event occurred (regarding tort, delict or quasi-delict harms).

Between 2004 and 2009, RH (the claimant) purchased five trucks from Volvo for its road transport business. In 2016, the Commission found that there was a cartel between fifteen truck manufacturers, including AB Volvo, Volvo Lastvagnar AB and Volvo Group Trucks Central Europe GmbH concerning medium trucks and heavy trucks (in the period between 1997-2011). RH sued the Volvo group in Spain, even though three of the four sued companies are based outside of Spain. The Volvo companies contested the international jurisdiction of Spanish courts, and argued that Article 7 refers to the place where the ‘event giving rise to the damage occurred’, which would be the place where the cartel was formed. The referring court questioned whether Article 7 of Brussels I refers solely to international jurisdiction or also to domestic jurisdiction, especially considering existing national case law determining that this rule does not determine the territorial domestic jurisdiction of a court in private competition actions. In this sense, the referring court asked the CJEU whether Article 7(2) of Brussels I should be interpreted as imposing only international jurisdiction in matters relating to tort, delict or quasi-delict, and whether the domestic court with jurisdiction should be determined by national civil procedure rules, or if, on the other hand, Article 7(2) also determines domestic territorial jurisdiction without the need to refer to domestic regulation.

AG De La Tour considered that Article 7(2) does not only impose international jurisdiction, but also determines domestic jurisdiction. The Advocate General analyzed the literal, systematic and teleological element of interpretation. When comparing Article 4(1) of the Brussels I Regulation with Article 7(2), the Advocate General stated that, while the former refers to ‘the courts’ of the Member State where the persons sued are domiciled, the latter refers to ‘the courts for the place’. This difference in wording seems to point towards different jurisdiction scopes. Additionally, since Article 7(2) is a special jurisdiction rule, AG De La Tour reminded that these rules are meant to protect a weak party, and, in that sense, these special rules have a nature of derogation. Finally, these special rules are meant to allow the party to choose the courts of a Member State based on the place with which the dispute has a particular connection, as well as to facilitate the sound administration of justice.

In addition, AG De La Tour considered that this analysis should be supplemented by further details as to the place where the alleged damage occurred, as well as to the specific designation of the court having special jurisdiction. In this sense, the Advocate General differentiated the current case from related cases (such as Tibor-Trans, where the CJEU determined that ‘where the market affected by the anticompetitive conduct is in the Member State on whose territory the alleged damage is purported to have occurred, that Member State must be regarded as the place where the damage occurred for the purposes of applying Article 7(2)’). The Advocate General concludes that, in the relevant related cases, the justification of the connecting factor adopted by the CJEU indicates that the ‘distinctive feature of competition litigation was taken into consideration in concrete terms’ (para 66). 

AG De La Tour also stated that the determination of the place where the damage occurred operated by the CJEU in Tibor Trans is not sufficient to specify the exact location of the court having territorial jurisdiction, which constitutes a source of legal uncertainty (para 70). The AG considered, therefore, that the CJEU should complement the answer given in Tibor Trans, particularly by taking into account ‘the number of proceedings which could be brought due to the extent of the cartel at issue’. In particular, the Advocate General noted that it is necessary to consider that, especially in the vehicle sales and transport sector, the place where the market (affected by the cartel) leads to additional costs is not necessarily the place where the goods were purchased (para 79).

For these reasons, the Advocate General calls for the CJEU to clarify the criteria for identifying the relevant court when interpreting the expression ‘place where the harmful event occurred’ (Article 7(2) Brussels I Regulation), and for the CJEU to draw a parallel with case Verein für Konsumenteninformation, where the CJEU held that ‘the place where the damage occurred is that where the vehicle in question was purchased’. The Advocate General also highlighted that it is important to assess the meaning of ‘purchase’ because, in the context of these proceedings, RH concluded leasing agreements, under which it became the owner of the trucks. This assessment should be done from an economic perspective, because the claim for compensation is based on competition law (para 86). AG De La Tour then interprets it as meaning ‘the place where [the] transaction was concluded’, understood in a wide sense as the place where the agreement was reached (and not where the price was paid) (para 88). Therefore, according to the Advocate General, the criterion of ‘the place where the transaction was concluded’ is sufficient to identify the court ‘objectively best placed to analyse the constituent elements of the defendant’s liability’. In this case, that means the place where the trucks were purchased by RH.

However, the Advocate General also highlighted that, to protect the objective of providing easier access to evidence, two criteria for establishing the location of damage can coexist (para 108). In that case, AG De La Tour also proposes that ‘if the place where the damage occurred does not correspond to that where the injured party carries on business, the action may be brought before the court in whose jurisdiction the injured party is established’ (para 110).

Finally, the Advocate General also considered that, despite the fact that Article 7(2) of the Brussels I Regulation determines territorial jurisdiction at both an international and domestic level, the CJEU should interpret it as allowing Member States to centralize the jurisdiction in certain specialized courts (para 130).

German regulator restricts Facebook data sharing

On 07.02.2019, Bundeskartellamt, the German competition regulator, issued a decision against Facebook restricting its processing of user data. 

The Bundeskartellamt points out that Facebook is in a dominant position with a market share of 95%. The closure of Google+, one of the competitors of Facebook, has intensified its dominance. Other companies, such as Twitter or Linkedin are considered to only operate in part of Facebook's market.

The decision states that the way Facebook collects, merges and uses data between its subsidiaries ammounts to abuse of dominant position, under competition law. One of the most troubling practices employed by Facebook is that it collects third-party data on users in an almost unlimited way and attaches all of these data to the users' facebook accounts. Data is being collected not only by other Facebook owned services, but by any website that has an embedded facebook button. It is worth noting that the data of the users was collected even if they would not interact with the facebook buttons (even if they  didnt 'like' a page).

What is even more concerning is that data is collected even if there is no kind of facebook sign on the page, when the website is using facebook analytics. This widespread collection of data allows facebook to form very detailed profiles of its users. 

With its decision, the Bundeskartellamt forbids this practice. Facebook, Instagram and Whatsapp will still be able to collect data on their users. However, Facebook will be prevented from assigning this data to a single facebook account, unless they have the voluntary consent of the users. However, the consent of the users is already required for third-party websites. The decision requires Facebook to make changes to its terms of service and data processing. The processing of data from third parties without the consent of users needs to be substantially limited. Facebook will have to come up with proposals on how to achieve that.

This decision comes after the publication of the first reports on the Code of practice against disinformation, signed by Facebook and other large online companies such as Google, Twitter and Mozilla. Facebook has to strengthen its commitments to empower consumers and boost cooperation with fact-checkers. However, if Facebook is serious about making their platform a fertile ground for those who seek to spread disinformation, it should first and foremost protect its users and their data from those who want to abuse them.

The decision is not yet final, as Facebook will have one month to appeal in German courts. It remains to be seen whether Facebook will challenge the decision. This decision serves to point out the increasing intersections between consumer law, data protection law and competition law. The Bundeskartellamt points out that their investigation required close cooperation with data protection authorities.

This is the dawn of a new age where the traditional compartmentalisations of law may not serve us as well  as in the past. Consumer law will also have to adapt in order to address challenges arising from novel business models, and especially in relation to data protection.

Commission investigates collusion among car manufacturers

Guest post by dr Kati Cseres, Associate Professor at the Amsterdam Centre for European Law and Governance, University of Amsterdam

On 18 September the European Commission has announced that it has opened an investigation against BMW, Daimler and Volkswagen, Audi and Porsche from the VW group, based on information that they had colluded, in breach of EU competition rules, to avoid competition on the development and roll-out of technology to clean the emissions of petrol and diesel passenger cars.

EU Commissioner, Margrethe Vestager, in charge of the competition policy portfolio, said: "The Commission is investigating whether BMW, Daimler and VW agreed not to compete against each other on the development and roll-out of important systems to reduce harmful emissions from petrol and diesel passenger cars. These technologies aim at making passenger cars less damaging to the environment. If proven, this collusion may have denied consumers the opportunity to buy less polluting cars, despite the technology being available to the manufacturers."

The Commission's investigation focusses on information indicating that BMW, Daimler, Volkswagen, Audi and Porsche participated in meetings where they discussed inter alia the development and deployment of technologies to limit harmful car exhaust emissions. In particular, the Commission is assessing whether the companies colluded to limit the development and roll-out of certain emissions control systems for cars sold in the European Economic Area (Article 101 of the Treaty on the Functioning of the European Union). While the EU competition rules certainly leave room for technical cooperation aimed at improving product quality, the current investigation concerns specific cooperation that is suspected to have aimed at limiting the technical development or preventing the roll-out of technical devices. The Commission has, however, stated that at this stage of the investigation it “has no indications that the parties coordinated with each other in relation to the use of illegal defeat devices to cheat regulatory testing”.

The Commission’s statement and act comes three years after  the Dieselgate scandal started with a violation notice issued by the US Environmental Protection Agency (EPA) to the VW group revealing that “defeat devices”, meant to game emissions testing, had been fitted to nearly half a million cars.

EU Commissioner Vera Jourová, responsible for Justice, Consumers and Gender Equality  has also been actively pursuing a solution for European consumers by way of legislation and proposing a New Deal for consumers as well as obtaining action plans from Volkswagen.

Should the current investigation of the Commission, Vestager’s DG Competition indeed find that Volkswagen group, Daimler and BMW has colluded on, consumers will have another strong case to bring before national courts and claim damages for the harm they suffered. At the same time, this is another strong signal for the other EU institutions that there should be further hesitation to support an EU wide collective action mechanism which effectively compensates harmed consumers.

Commission fines electronics companies for fixing resale prices

On the 24th July, the EU Commission issued fines against four electronics companies for breaching antitrust rules by fixing resale prices on their online retailers.

All four companies, namely Asus, Denon & Marantz, Philips and Pioneer, did not allow their resellers to set their own prices and instead pressured them to maintain a minimum resale price. The fines issued ranged from more than 63 million for Asus to 7.7 million for Denon & Marantz. The fines were reduced as a result of the cooperation of the companies to the investigation. The prime target of this practice were online resellers, who tend to sell their products at lower prices.

As online resellers adjust their prices automatically to that of competitors, the practice had a wide effect on the market. Furthermore, the goods in question were widely used consumer goods from computers to kitchen appliances and personal care products, meaning a significant impact on consumers.

The practice of fixing resale prices is prevalent in online markets and Commissioner Margrethe Vestager highlighted the fact that the online market is ever growing and it is imperative to protect consumers.

What happens to the consumer affected by these high prices in electronics? They can seek damages in court, following Directive 2014/104/EU (The Antitrust Damages Directive) using the Commission decisions as proof of illegal behaviour of the companies.

Data protection in 2018: waiting for the GDPR...

Happy 2018 dear readers! 

The new General Data Protection Regulation, which may make it more difficult for websites and other providers to collect our data without express consent, will only come into force in a few months. 

Meanwhile, national authorities seem to be reaching a point where they are ready to adopt less straightforward strategies to put a halt to what feels to many as excessive practices. See for instance the German competition authority, Bundeskartellamt, whose president has just announced in the press (with an interview in the Rheinischen Post, see also here a summary in Die Zeit) that the authority is investigating Facebook's data collection activities as an abuse of dominant position.

Although Facebook has no German subsidiary, action under competition law seems to be made possible as long as the practice exerts its effects in German territory. The authority had already put Facebook on notice a few weeks ago, especially with reference to the practice of collecting data when consumers browse outside of the social network to later reconnect such data to the user's Facebook account. 

Facebook's main defence against the charge is that they are just one social network and users can easily opt for one of their competitors, so they do not enjoy the position of market dominance which is a precondition for any charge of abuse under competition law. Looking forward to seeing this issue develop!

CJEU in TofuTown: if it doesn't come from a cow, it can't be milk

Soy milk, soy cream, soy cheese: all these names come forward relatively frequently on European markets. According to a decision issued by the the CJEU yesterday (C-422/16, BSV v TofuTown.com GMBH), however, all these products are currently being marketed under names that do not meet the requirements of EU law. To understand why, let us take a step back. 

In the main proceedings, a German association had sued a company producing vegetarian and vegan foodstuff claiming that it infringed German rules on unfair competition by not respecting EU food regulations. 

In particular, the company traded several vegetal products using names mainly associated with dairy products, such as "cream", "milk", and so on. The usage of these terms, however, is restricted under EU law, namely Regulation 1308/2013, to "normal mammary secretion obtained from one or more milkings" - in other words, animal products. In turn, names which designate dairy products - such as cream, butter, cheese - are in principle only to be used for products based on animal milk. A very limited set of exceptions, listing names of products traditionally using milk-related names in the Member States, is adopted by means of Commission decision 791/2010. This lists features products such as "coconut milk", "horse-radish cream" and other country-specific words - with separate sections for each language.

The defendant company, however, claimed that allowing a broader understanding of the exception, which would allow the use of diary-related words for soy and other vegetable products, would be in line with the objectives of the Regulation. According to this argument, 

"the way in which consumers understand those designations has changed massively in recent years, and that it does not use terms such as ‘butter’ or ‘cream’ in isolation, but always in association with words referring to the plant-based origin of the products concerned, for example ‘Tofu butter’ or ‘Rice Spray Cream" (para 17).

The CJEU did not really engage with the submission, rather reasoning on whether an interpretation that would not allow such a reading would itself go against the Regulation's purposes. According to the court, it would not. 

"As is clear from recitals 64 and 76 of that regulation, the objectives pursued by the provisions at issue consist, in particular, in improving the economic conditions for the production and marketing as well as the quality of such products. The application of such standards is therefore in the interest of producers, traders and consumers, to protect consumers and to maintain conditions for allowing competition. Those provisions, in so far as they provide that only the products which comply with the requirements they lay down can be designated by the term ‘milk’ and the designations reserved exclusively for milk products even if those designations are expanded upon by explanations or descriptions such as those at issue in the main proceedings, contribute to the attainment of those objectives." (para 43)

The limitations, according to the court, are necessary for a proper identification of actual milk-based products. Without such limits, both consumers and producers of milk would be harmed. The contextual use of "clarifying or descriptive terms indicating the plant origin of the product at issue" is not sufficient to circumvent the restrictive rules of the Regulation (see also para 31).

In essence, the CJEU saw no reason to investigate whether in the case at stake a risk of confusion existed, either by using an "average consumer" test or otherwise. The Court simply considered itself bound by the list detailed in the Commission's decision of 2010, especially in light of the fact that the Commission would be able to revise such decision with relatively minor troubles.

The Court also briefly considered whether major complaints could be raised against the Regulation under the principles of proportionality and equal treatment. As to proportionality, the analysis remarked that the EU legislator enjoys wide discretion in matters of agricultural markets regulation, due to the broad mandate it enjoys under the Treaty.  Concerning equal treatment, and in particular the different approach to producers of non-dairy replacements for animal products (eg veggie burgers), the Court observed that different sectors show different concerns and thus equal-treatment here cannot be invoked to require different situations to be treated equally.

Producers in several member states will now likely have to change their labelling and marketing practices, and/or massively lobby the Commission for amendments to its 2010 decision.

First data on geo-blocking practices in the e-commerce sector published

On 18.3.2016 the European Commission (DG COMP) published an issues paper presenting its initial findings on geo-blocking practices in the e-commerce sector. The sector inquiry conducted by Directorate-General for Competition is a part of a wider initiative on geo-blocking, which was already announced in the last year's communication on Digital Single Market. 

The recently published document is based on responses of more than 1400 companies involved in online sales of consumer goods and in the supply of digital content. Nearly three quarters of replies come from online retailers. Questionnaires were also sent to operators of online marketplaces, price comparison tools and payment systems. Data obtained from digital content providers (broadcasters, electronic communications companies) were analysed separately. 

For purposes of the study, geo-blocking is interpreted broadly and refers to "commercial practices whereby online providers prevent users from accessing and purchasing consumer goods/digital content services offered on their website based on the location of the user in a Member State different from that of the provider". It can take a variety of forms such as "(i) preventing the user from accessing the website, (ii) automatically re-routing the user to another website, (iii) refusing payment or (iv) refusing delivery". However, it does not include geo-filtering, which consists in "offering different terms and/or conditions depending on the location of the user".

Initial findings reveal significant differences with regard to consumer goods and online digital content. In online sales of tangible goods geo-blocking appears to be less widespread and usually stems from a unilateral business decision. According to respondents, geo-blocking in this field is mostly manifested by a refusal to deliver abroad. Conversely, complete denial of access to digital content based on IP verification is by no means unheard of, and is often required contractually. However, it is important to note that most restrictions in this field are imposed in licensing agreements with right holders and therefore cannot be regarded as illegitimate per se.

The discussed issues paper only gives a partial picture of the ongoing sector inquiry and we still have to wait at least a couple of months for a more detailed analysis in the preliminary (mid-2016) and final report (early 2017). It goes without saying that the current wording warrants further elaboration. The part on digital content only deals with audio-visual and music content, while computer games, software and books (including e-books) are analysed in the chapter on consumer goods. Reasons for such a differentiation are not explained, though. The interface between competition law and intellectual property also deserves a more in-depth evaluation. Judging by the cautious wording of the present document, spectacular antitrust interventions in the field of digital content do not seem very likely. At the same time, it is to be expected that the e-commerce inquiry will constitute a source of information for other Directorates-General, which are currently working on a legislative proposal on geo-blocking (scheduled for mid-2016). There seem to be a common understanding that the principle of non-discrimination laid down in Article 20 of the Services Directive does not offer consumers an effective tool of protection and is barely enforced in practice (see e.g. BEUC response to public consultations). Be it as it may, developing an adequate policy solution is a challenging task, which requires a careful examination of numerous subtle interconnections with existing and upcoming legislation. It remains to be seen if the broad approach, apparently favoured by the Commission, will allow to strike a fair balance between the competing interests involved. How the subject of copyrighted digital content will be addressed in the geo-blocking proposal is one of many interesting questions to follow.

Press digest

Air passengers

While the Regulation 261/2004 on air passenger rights is still under review, BBC reported recently on the investigation conducted in the UK by the consumer group Which?. Pursuant to their data between June 2014 and May 2015, ca 900.000 people could be eligible for a compensation for a delayed flight but only ca 38% of them claimed this compensation. Many passengers still don't know about their rights and are not informed about them by the airline. Even worse, airlines often discourage passengers from making this claim by arguing that the delay was beyond their control and therefore an extraordinary circumstance. The process of how to claim this compensation is also often complex. Our advice: see whether any of the online flight claim services operates in your country (such as euclaim, flightclaimservice, flightright). (Delayed airline passengers 'missing out on millions in compensation')

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Taping client financial consultations

UK financial advisers were worried that they would have to tape meetings with their clients in order to be able to prove that they were acting in clients' best interests. While MIFID II only demands recordings of phone and electronic communications to be made and store, it also recommends such measures for face-to-face meetings. The Financial Conduct Authority, however, does not expect such far-reaching measures to be taken by financial advisers. (FCA will not demand advisers tape client meetings)

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Mobile phone operators in Ireland breach CRD information duties on the right of withdrawal

The Competition and Consumer Protection Commission in Ireland is taking enforcement action against various mobile phone providers (Vodafone, Eircom, Meteor, Three and UPC) for not providing with sufficient and accurate information on how to withdraw from their contract, in accordance with the Consumer Rights Directive. The service providers are asked to update this information and to inform their most recent consumers of their right to withdraw from the contract. (Mobile operator avoids penalty; Consumer watchdog takes action against Vodafone; Action taken against Eircom, Meteor, Three and UPC)

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Price discrimination based on nationality in Disneyland Paris

The European Commission has received complaints about Disneyland Paris charging different prices for consumers depending on their nationality. According to the complaints British and German consumers would pay more than French consumers. Generally, it could be considered price discrimination if for the same service people pay more because of their nationality or country of residence, unless Disneyland Paris could justify the need for this price variation. (Disneyland Paris is being investigated for allegedly charging British and German visitors more than the French)

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European Commission vs Hollywood

The European Commission has started an antitrust procedure against Sky UK and six major US film studios: Disney, NBCUniversal, Paramount Pictures, Sony, Twentieth Century Fox and Warner Bros. These six studios have placed contractual restrictions on Sky UK pursuant to which Sky UK may only make their pay-TV services available in the UK and Ireland and not to EU consumers located elsewhere. Since due to these contractual provisions Sky UK cannot choose its clientele based on commercial reasons, incl. national copyright laws, these rules may amount to anti-competitive agreements, prohibited in the EU. US movie studios tend to, however, choose a broadcaster to license for their products in a single Member State and limit their options to share these services cross-border. Considering the increase in the demand for cross-border services in the EU, incl. (online) pay-TV services, these restrictions may be stifling competition. (Commission sends Statement of Objections on cross-border provision of pay-TV services available in UK and Ireland)

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Uber at the ECJ

On July 20 it was announced that a Spanish court referred to the ECJ for an estimation of the legal character of Uber, and more specifically UberPop services. Uber is one of the examples of the sharing economy companies that enables peer-to-peer transactions through an online P2P platform. There are a lot of uncertainties as to the legal position of the online P2P platform, its rights and obligations and its liability. Can it be seen as merely an (electronic) intermediary in a transaction between two peers or could it be seen as a service provider, etc.? In more and more European countries Uber's operations are questioned (and even banned) under national laws, since the courts do not see the activity of Uber as limited to only providing intermediation services. (EU court to classify Uber: taxi or information company?)

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Ban of a chemical in imported textiles

Over 10 years ago the use of nonylphenol ethoxylates (NPE) in textile manufacture in Europe was banned. This toxic substance is used as a cleaning, dyeing and rinsing agent in textile production, however, when it degrades in the environment it ends up in the bodies of fish, disrupting their hormones. Despite the ban, the negative effect of NPE's degradation did not disappear, since imported textiles contained it and when washed released it into the environment. The Council has now voted unanimously on extending this ban to imports of clothing and other products (to become effective 5 years after the adoption of the new rule). (EU countries agree textile chemical ban)

Google under the EU fire

As we have mentioned before (Google continued) there is a growing worry among the European authorities protecting consumer interests as well as fair competition on the EU market about the dominant position of Google. The European Commission has just sent a Statement of Objections to Google against its practices, potentially in breach of EU antitrust rules, that allow Google (more than 90% of market shares) to systematically favour their own comparison shopping product (currently, "Google Shopping") in the general search results pages that consumers in the EU receive. That is to say, EU consumers would not necessarily receive the most relevant search results and not have a possibility to use the services of Google's competitors in providing comparison shopping services (Commission sends Statement of Objections to Google on comparison shopping service). Moreover, the Commission opened a formal investigation against Google with regard to its Android mobile operating system, applications and services for smartphones and tablets. Since the majority of smartphones in the EU are based on Android, it is important that Google does not abuse its dominant position on the market. While anyone could freely use and develop Android, Google delivers the Android operating system together with a range of Google's proprietary applications and services and expects manufacturers, software developers etc. to conclude contracts with Google e.g. demanding exclusive pre-installation of Google's own applications and services on smartphones and tablets. (Commission opens formal investigation against Google in relation to Android mobile operating system)

Digital Single Market: equal pricing across the EU and ban of geo-blocking

Many consumers are nowadays aware that they may purchase the same product online from the same trader at a different price in various countries. For example, purchasing flights from Amsterdam to Warsaw could be more expensive than flights from Warsaw to Amsterdam; the same dress sold on the Dutch website of an international clothing designer could be more expensive than on their English website. This difference in pricing could hinder further development of a Single Digital Market and therefore, the investigation into the reasons for it and its functioning has been announced by the European competition commissioner, Margrethe Vestager (Competition policy for the Digital Single Market: Focus on e-commerce). Another issue that will be looked into are the geo-blocking software that enables certain service providers to limit provision of their services to certain countries only. For example, if you log in with your account to Netflix in the Netherlands you will access different movie library than in the United States or in the United Kingdom, mostly due to film and TV rights-holders increasing their own income by selling these rights at a different price for various countries; YouTube will not show a certain video to you based on your geographical location (EU plans competition inquiry into e-commerce sector; Europe wants to stop geo-blocking on Netflix and RTE). Vestager said in her speech: “(...) consumers must be allowed to look for the best deals online wherever they want. Contractual bans of so-called passive online sales are therefore considered hardcore restrictions of competition.”

Press digest

Telecommunication

The European Commission announces not to further regulate fixed telephone lines, since the market moved towards mobile and online telecommunication. (Europe says goodbye to fixed line regulation, hello to mobile era)

Tobacco Products Directive

UK e-cigarette manufacturer, Totally Wicked, challenges the validity of art. 20 of the Tobacco Products Directive at the CJEU, claiming that e-cigarettes should not be regulated as "tobacco related products" if they don't contain tobacco. (E-cig manufacturer wins right to challenge Brussels in EU courts; Totally Wicked vs. the EU's tobacco directive; First e-cig TV adverts from next month)

EU Data Protection and ePrivacy rules

Worries are being expressed about strengthening existing data protection rules even when businesses do not seem to be able to hold to currently existing ones (EU set to strengthen data protection laws). Data Protection Authorities across the EU are currently stepping up enforcement of the compliance with the existing EU data protection rules, by conducting a widespread cookie sweep (Are you ready? The EU "Cookie Sweep" is upon us). Other sources report widespread non-compliance of cloud-based storage service providers with the existing EU data protection rules (Most cloud apps flout EU data protection rules - study).

Tourism sector

TUI Travel argues in the UK for more support to be given to the reform of the Package Travel Directive and the Regulation No 261/2004 on air passenger rights. (TUI Travel calls on UK government to support the travel and tourism sector at home and abroad)

Competition

European booksellers plead with the European Commission and BEUC to set up investigation into the monopoly position of Amazon in the online book market, which harms European consumers by depriving them of a rich and diversified online book offering. (Booksellers raise Amazon monopoly concerns with European Commission)

Health claims

The new rules on food labelling (EU Regulation 1169/2011 on food information to consumers) are to enter into force as of December 2014 (nutrition information as of December 2016). Especially the sport nutrition sector may have to invest time and money to adjust the labels of their products to the new rules. While this regulation forces producers to be very specific in listing ingredients of their products, it may be even more difficult for the producers to justify placement of easy claims on how certain products may boost energy etc. (which are also regulated by Regulation 1924/2006). (Claim, set and match)

Consumer behaviour

Two new survey results have been published showing us growing trends of consumer online shopping habits. (UK leads European online shopping; Northern European web shoppers spent €1,780 each in 2013) In the meantime, Facebook sets up a new division - Facebook IQ - to try to understand consumer behaviour better... (Facebook forms new unit to study consumer behaviour).