Airbnb hosts can (and should) be regulated locally, AG says

Earlier this month Advocate General Bobek delivered his opinion in joined cases C-724/18 and C-727/18 Cali Apartments. The cases involve two Parisian hosts who were sanctioned for letting their apartments via Airbnb without an authorisation required under national and municipal law. Unlike in the previous cases on the so-called platform economy (see, in particular:  Airbnb scores a victory before the Court of Justice), the questions referred did not revolve around the role of the platform operator. Rather, the Court was asked to define the limits of the freedom to provide services by the peer providers.

Background of the case

Under applicable French law letting apartments for short periods to a transient clientele is only allowed if a number of conditions are fulfilled. Firstly, it is necessary to declare this fact to the mayor of the relevant municipality. Secondly, and most importantly to the dispute, in municipalities with more than 200 000 inhabitants, change of use of residential premises is additionally subject to a prior authorisation. Detailed conditions for obtaining the authorisation are set out at the local level and may include offset requirements in the form of the concurrent conversion of non-residential premises into housing. The appellants, who were sanctioned for letting their Parisian properties to tourists without necessary authorisations, argued that requirements imposed under French law were contrary to Directive 2006/123/EC on services.

Opinion of AG Bobek

The Advocate General considered the answer to the first two questions asked by the referring court to be fairly straightforward. In his view, Services Directive does apply to the activities and rules in question and the national/municipal framework at issue should be qualified as an 'authorisation scheme' under Articles 9 to 13 of Services Directive. While the reasoning in this respect is rather convincing (note especially reference to Visser), it is hard to overlook a similarilty with another recent case, in which AG Bobek gave an opinion: C-393/17 Kirschstein. There as well, the AG argued for a broad reading of the act's scope - in that case Directive 2005/29/EC on unfair commercial practices - and centered his analysis on the substance of the act. As we reported on this blog, however, the Court did not share this opinion and considered the applicability question to be decisive (see: CJEU in Kirschstein...).

Having established the applicability of Service Directive to the Cali case, the AG moved to assessing the compatibility of the relevant authorisation scheme with Services Directive. Here, a distinction was made between the benchmark for evaluating the need for establishing such a scheme in the first place and more specific conditions of such a scheme. Following the opinion, the former should comply with Article 9 of Services Directive, while the more extensive list of Article 10 is relevant for the latter. Crucially, both provisions contain a common core, requiring the applicable measures to be non-discriminatory, justified by an overriding reason relating to the public interest and proportionate to the objective pursued.

As regards the public interest objective, para. 97 of the opinion lists the different reasons put forward by participants to the proceedings: combating a housing shortage; offering affordable and sufficient housing; social housing policy; the protection of the urban environment; resisting pressures on land; the protection of consumers; the efficiency of tax inspections; fair trading; and the protection of the recipients of housing services. The relevant French authorities focused, in particular, on considerations of housing shortage and protection of urban environment, both of which the AG  accepted without hesitation. Other reasons, including the more consumer-oriented ones, thus remained on the sidelines of the analysis, even if their role in other context has not been discounted.

As regards the remaining questions, the AG took the view that establishment of the authorisation scheme at issue can be seen proportionate under Article 9(1) of the Services Directive, but questioned the proportionality and the non-discriminatory nature of its specific requirements under Article 10(2). According to the AG,  offsetting required by the City of Paris can in many instances actually defeat the purpose of asking for an authorisation in the first place (para. 127). This is especially the case for 'non-professional owners' of an extra flat in which they personally do not reside. Hence, the analysed offsetting requirement eventually reserves the access to market for short-term accommodation rental only for the big players, who would typically be legal persons or property developers. Having said that, the AG made clear that offsetting requirements need not always be contrary to EU law. Proportionality of such requirements could potentially be achieved by limiting them to premises above a certain size or to owners with more residential properties. A system of temporary authorisations not subject to offset, which would be periodically reviewed and potentially redistributed, could be another option to consider (para. 134).

Concluding thought

Two elements transpiring from the AG's proportinality analysis are additionally worth highlighting: the role of evidence-based assessment and of local diversity. According to the AG, the conclusion on both Article 9 and 10 requires that account is taken of "specific data" concerning the housing market in the cities where an authorisation scheme is envisaged. Such evidence, collected at the local level, is needed to assess whether the scheme does not go beyond what is necessary to achieve the objectives pursued (paras. 112, 121). The opinion concludes with a thought, towards which - as the AG notes - the Commission showed some "intellectual unease" during the hearing: that local diversity as to the specific authorisation conditions is not only permissible; it is even desirable (para. 136). While this finding might be true for limitations justified by the reasons related to housing shortage and urban environment, this is not necessarily the case for ones related to consumer protection.

* The author carries out a research project on consumer protection in the collaborative economy, financed by the National Science Centre in Poland on the basis of decision no. DEC-2015/19/N/HS5/01557.

Unlike Uber, Airbnb provides information society services, AG says

Last Tuesday Advocate-General Szpunar delivered his opinion in case C-390/18 Airbnb Ireland. The case does not directly relate to consumer law, but remains highly relevant to consumer protection. Most notably, it provides an opportunity for the AG and the Court to refine the criteria for distinguishing different types of services provided in the platform economy and, consequently, the scope of Member States' regulatory discretion.

Airbnb Ireland is a direct follow-up to the two earlier Uber cases, both of which we have reported on extensively on this blog (see eg CJEU gives Member States a green light to regulate Uber, Nihil novi from the CJEU in Uber France). To recall, the Court of Justice found, back then, that services provided by Uber – an operator of a popular ride-hailing app – did not qualify as information society services, but rather constituted services in the field of transport. This meant, among others, that Uber could not rely on the freedom of movement established in Directive 2000/31/EC on electronic commerce. Or, in other words, that Member States enjoyed a wider margin of discretion when it comes to regulating Uber and similar service providers.

Setting the scene

The questions asked in C-390/18 Airbnb Ireland were very similar to those asked in C-434/15 Uber Spain. Essentially, the controversy was whether the provisions of French law, requiring a person who engages in the mediation and management of real property to hold a professional license (among other requirements), could be applied to a service provider, established in another Member State, who enables hosts to be connected with guests via an online platform. To reply to this question it needed to be established, as a first step, whether services provided by Airbnb qualified as information society services within the meaning of Directive 2000/31/EC. Contrary to the Uber case, Advocate-General Szpunar responded to this question in the affirmative.

It is worth highlighting that it was also AG Szpunar who advised the Court in Uber cases. Szpunar’s finding that the business model of Airbnb falls within the scope of the E-Commerce Directive does not contradict his earlier argumentation (which was largely followed by the Court). Rather he elaborates on the previously established framework and applies it to a new factual setting.

Key points of the opinion 

What I particularly like about AG's opinion is the attempt to structure the assessment of composite services under free movement law. Services of this kind – provided partially by electronic means and partially not – without doubt form an intrinsic part of the platform economy. In particular, the Advocate-General tries to elaborate on the criteria set forth in the previous cases: C-108/09 Ker Optika  and the aforementioned Uber cases (C-434/15 Uber Spain and C-320/16 Uber France).

Essentially, the AG argues, there is one major question to be asked with respect to composite services: whether or not services provided by electronic means are inseparably linked with services 'having material content'. Both types of services are not inseparably linked when the former do not lose their economic interest and continue to be independent of the latter (and, so it seems, vice versa, cf. paras. 46 and 59). If it is clear that services are not inseparably linked, then the component provided by electronic means falls under Directive 2000/31/EC, while the other component does not. When both services are inseparably linked Directive 2000/31/EC does not apply. However, some services may prima facie appear to be separable, but still require an additional assessment to make sure this is indeed the case.

It is in this second group of cases when the Uber case law kicks in. As the AG recalls in para. 49 of the opinion, the Court concluded in Uber that the company, in addition to an intermediation service consisting in connecting drivers with passengers through an app, simultaneously offered urban transport services, which it rendered accessible, in particular, through software tools … and whose general operation it organised. According to the Advocate-General, in doing so, the Court developed two criteria for establishing inseparability of composite services. These relate to the fact that the service provider, firstly, offers services having material content (eg transport services) and, secondly, exercises decisive influence on the conditions under which such services are provided.

Expressed in this way, the two criteria may not seem logically connected. First, it is required that the platform provider himself offers services 'having material content' and then, additionally, that he exerts a decisive influence on the conditions under which such services are provided (by himself?). Further parts of the Airbnb opinion, however, explain this in a more convincing way. Here are some of the most relevant takeaways:

• The criterion of 'offering services having material content' essentially means creating a new offer. It was fulfilled in Uber because, arguably, non-professional drivers would not be led to provide transport services and passengers would not use the services provided by those drivers without the relevant application (para. 51).
• The fulfillment of that criterion, in any case, is only an indication that a service provided by electronic means is inseparably linked with a services having material content (being a subject of the new offer; para. 65). Most importantly, the fact that it is not fulfilled (i.e. that no fundamentally new offer is created) does not yet mean that services provided by electronic means are separable from services having material content (and therefore fall under E-Commerce Directive).
• Thus, overall, the second criterion - decisive influence over the conditions of the supply of services having material content - is (nomen omen) decisive for assessing the nature of services provided by an operator of online platform (para. 67). This, in turn, should be assessed by looking at the key parameters of underlying services, which may vary from market to market. In urban transport such parameters included price, availability, quality and safety. In short-term accommodation rental, elements related to location and standard of accommodation appear to be most relevant from AG's perspective. Price can also play a role, although not as important as in the urban transport market (para. 71).

Following a more detailed examination, the Advocate-General concluded that Airbnb did not exert decisive influence over the conditions of the supply of short-term accommodation services. Consequently, these services could be separated from services provided electronically by Airbnb. A similar conclusion was reached with respect to additional services provided by Airbnb, such as photography, insurance and guarantee, which – according to the AG – were only ancillary to the intermediation service provided by electronic means (para. 82).

Concluding thought

All in all, in view of the AG, a service consisting in connecting, via an electronic platform, potential guests with hosts offering short-term accommodation, in a situation where the provider of that service does not exercise control over the essential procedures of the provision of those services, constitutes an information society service within the meaning of Directive 2000/31/EC. This does not mean that no additional requirements, related in particular to consumer protection, can be imposed on a provider of such services by the Member State other than the Member State of service provider's establishment. The relevant restrictions, however, must comply with substantive and procedural criteria laid down in Article 3(4) of E-Commerce Directive. So, at least, the Advocate-General – the judgment of the Court still lies ahead.

* The author carries out a research project on consumer protection in the collaborative economy, financed by the National Science Centre in Poland on the basis of decision no. DEC-2015/19/N/HS5/01557.

Airbnb to unroll the transparency carpet for its users

Whilst the Court of Justice was keeping us busy this month, it is worth it to mention that Airbnb finally committed to adjusting its T&Cs in accordance with EU law (Airbnb commits to complying with European Commission and EU consumer authorities' demands). This follows the earlier action of the CPC Network and of the Commission against Airbnb that we reported on previously (EU Commission cracks down on Airbnb to comply with EU consumer protection). Apparently, they will change its policies by the end of this year ensuring, among other things, price transparency. This should follow from Airbnb presenting consumers with the total price of bookings, including extra fees (cleaning charges e.g.) or warning them explicitly that extra fees may apply, when it is impossible to calculate these in advance. Other terms that shall be amended refer to clearly informing consumers about the remedies available to them both against hosts and Airbnb, and that they may sue Airbnb in courts of their country of residence. In case of a contract's termination or Airbnb removing content from its website, they will inform consumers about this and allow them to appeal this decision as well as claim appropriate compensation.

 

An interesting commitment is for Airbnb to clearly identify whether the accommodation is offered by a consumer or a professional party. Considering that different rules apply in B2C and B2B cases, it is important for consumers to know who their counterpart is. However, it may not always be easy to determine the professional character of the host, as this will depend on the applicable national laws, as well as transparency in dealings between the server and the hosts. It will be interesting to observe what solutions Airbnb adopts in this respect. Whether e.g. they will rely on the self-declared private/professional party character of the host. 

 

If any of our readers are hosts with Airbnb, we would appreciate being informed about any notifications you may receive in the coming months as to the changes in the new policies and new obligations placed on you.

EU Commission cracks down on Airbnb to comply with EU consumer protection

On 16th July, the EU Commission published a press release calling on Airbnb to comply with EU consumer law, especially with regard to price transparency.

Airbnb's innovative sharing economy model has been very successful and has won a large part of the short term rental market; yet, that has not been without its share of controversy.

The press release focuses on the following issues:

1) Price transparency

The EU Commission points out that current Airbnb practices contravene the Unfair Commercial Practices Directive. More specifically, Airbnb should clarify on its platform whether the renter is a private person or a professional. As more and more traditional businesses, such as hotels, apartments and bed and breakfasts, are listed on Airbnb, consumers must be aware in a clear manner as to whether they are renting from a professional. If they do rent from a professional, the increased protection of EU consumer law applies.

Furthermore, Airbnb should present the total price for a rental on the initial search of the consumer, as at the moment, obligatory charges such as cleaning and service are added on in later steps, thus making it more difficult for consumers to compare offers.

2) Clarification or removal of unfair contract terms 

The terms and conditions of Airbnb should be amended in order not to create a significant imbalance between the parties. Also, the terms should be more transparent, presented in a clear and intelligible language in order to allow consumers to be better informed. However, even if the terms are presented in a more transparent manner, as they should, it does not ensure that consumers will be more likely to actually read them.

Some of the problematic terms highlighted in the press release include:

• that the company should not mislead consumers by going to a court in a country different from the one in their Member State of residence;
• Airbnb cannot decide unilaterally and without justification which terms may remain in effect in case of termination of a contract;
• Airbnb cannot deprive consumers from their basic legal rights to sue a host in case of personal harm or other damages;
• Airbnb cannot unilaterally change the terms and conditions without clearly informing consumers in advance and without giving them the possibility to cancel the contract.

Finally, in terms of redress, Airbnb should comply with art. 14(1) of  Regulation 524/2013 (the ODR Regulation) to display the link to the ODR platform. However, traders are not obliged to participate in the ODR platform scheme.

Now the ball is in the court of Airbnb, who has a deadline until the end of August to submit solutions to the Commission on how they intend to comply with EU consumer law. These suggestions will be discussed in a meeting between the Commission and the national authorities in September, and should they be found to be unsatisfactory, national authorities will use their enforcement powers.

It will be interesting to see how this story develops and whether this is the start of a new more consumer-friendly sharing economy.

Tube back in business? Uber loses its license in London

Transport for London (TfL) decided not to renew the licence that Uber holds for operating in London. Uber has now one month to appeal, during which time (and the appeal procedure) they may continue to conduct business in London. If the appeal is unsuccessful, however, this may cause thousands of Uber drivers to lose their extra income and Londoners to have to switch back to more expensive black cabs, overcrowded public transport or investing in hiking shoes.

The decision not to renew the license is based on "public safety and security" concerns, meaning Uber apparently not doing its best in background checks for its drivers and not reporting criminal offences. Uber denies these accusations, claiming that their practices are no different from those of black cabs. Is it then just a matter of restricting access to innovative services, sustaining the old-fashioned options? This will be undoubtedly followed as the case continues. Read more e.g. here: Uber Loses Its License to Operate in London.

The Uber saga continues

Roughly two months ago we commented on the opinion of Advocate-General Szpunar in case C-434/15 Uber Spain. His conclusion that the popular ride-hailing platform should not be considered as an information society service, but rather as a transport service was very bad news for Uber. We also wrote that the same AG was currently drafting an opinion in a related case, C-320/16 Uber France, which left the provider of the (in)famous transport app with little grounds for optimism. The opinion was eventually published this Tuesday and, indeed, comes as no surprise.

Background of the case

The case deals with a specific provision of the French transport code, introduced in 2014. It prohibited and penalised the organisation of a system for putting customers in touch with persons who engage in the carriage of passengers in breach of applicable market access requirements. The provision was aimed as a new weapon for national authorities and private parties against providers of services such as UberPOP (part of the ride-hailing business model involving non-licensed private drivers). Soon after it came into force, the provision was put to test in the first proceedings.

Uber naturally fought back. It argued, among others, that the national provision invoked against it constituted a technical regulation within the meaning of Article 1(11) Directive 98/34/EC, as amended, and was therefore covered by the notification requirement laid down in Article 8(1) of that directive. According to the defendant, since no such communication had been made, the provision relied upon in the proceedings should be deemed inapplicable and hence unenforceable.

Two heavy blows from Advocate-General

"UberPOP not an information society service"

Advocate-General Szpunar was not convinced. He began the assessment by recalling his earlier opinion in Uber Spain, in particular the proposed guidelines as to how "composite services" (i.e. services consisting of a component provided by electronic means and a component not provided by such means) should be approached. What is more, he used the opportunity to make two additional points in support of his claim. First, he distinguished the type of activities pursued by Uber from the situation considered by the CJEU in case C-339/15 Vanderborght (see also our earlier blog post on that matter here). Furthermore, he drew a distinction between the case at hand and the legal relationship arising from a franchise contract. The AG concluded by reiterating his earlier view that services provided by Uber should not be classified as information society services, but rather as services in the field of transport.

"Either way, national provision at issue not a technical regulation"

The Advocate-General did not stop here, however. He went on to argue that the question of whether the contested provision of French law constituted a technical regulation could be resolved irrespectively of the classification of the UberPOP service. And, not surprisingly, also that line of reasoning was not very helpful to Uber.

The assessment focused on the wording of Article 1(5) of Directive 98/34/EC, as amended (on a side note, the act was recently repealed and replaced by Directive 2015/1535). The analysed provision defined "rules on services" as requirements of a general nature relating to the taking-up and pursuit of the activities of information society service providers, excluding any rules which are not specifically aimed at those services. It also clarified that "a rule shall not be considered to be specifically aimed at information society services if it affects such services only in an implicit or incidental manner".

The analysis started well for Uber. The Advocate-General agreed with the defendant that the contested national provision was "principally directed at systems for connecting the two parties by electronic means", thus rejecting arguments of the French government to the contrary. However, he went on to argue that - since the prohibition in question was limited to the organisation of a system for putting customers in touch with persons providing transport services illegally - the impact of that prohibition on information society services was merely incidental. 

In one of the most illustrative parts of the opinion the AG submitted: 

"If every national provision that prohibited or punished intermediation in illegal activities had to be regarded as a technical regulation merely because the intermediation most likely takes place by electronic means, then a great number of internal rules in the Member States, written and unwritten, would have to be notified as technical regulations. That would lead to an unwarranted extension of the obligation to notify without that really contributing to the attainment of the objectives of the notification procedure, the purpose of which is to prevent the adoption by the Member States of measures that are incompatible with the internal market and to enable economic operators to make more of the advantages inherent in the internal market. Instead of that, an excessive notification obligation, with the penalty of regulations that have not been notified being inapplicable, would facilitate circumvention of the law and engender legal uncertainty, including in relationships between individuals." (para. 31)

Concluding remark

The commented opinion deals with a delicate interface of regulation and innovation and is bound to attract mixed responses. One may wonder, for instance, how national provisions like the one at issue should be assessed in the light of Article 15 of Directive 2000/31/EC on electronic commerce and whether some sort of notification mechanism would not be desired to ensure compliance with this norm. The question would, of course, be devoid of meaning if the Court were to follow the AG's understanding of the nature of Uber's activity in the first place. In this respect the Advocate-General appears to share the view that the company, which he classifies as a transport company, should be distinguished from the "genuine sharing economy". Last but not least, it is worth noting that some of the criteria referred to by the AG in support of this claim overlap with the indicative benchmarks formulated by the Commission in its collaborative economy communication (particularly references to the level of control or influence exerted by the platform provider). Quite ironically, however, the Commission itself had reportedly been pleading - at least in Uber Spain - against the proposed line of reasoning. This shows that the matter remains highly controversial and its eventual resolution is far from clear. The doubts should be allayed by the end of this year.

* The author carries out a research project on consumer protection in the collaborative economy, financed by the National Science Centre in Poland on the basis of decision no. DEC-2015/19/N/HS5/01557.

Online sales platforms as consumer information providers - CJEU in Verband Sozialer Wettbewerb (C-146/16)

Misleading omissions are always problematic to define, as it needs first to be decided whether the information that is missing classifies as 'material information'. The case Verband Sozialer Wettbewerb (C-146/16) addressed the issue of misleading omissions, with an additional complication of information being provided within the sharing economy (understood as involving the use of online sales platforms).

DHL Paket has an online sales platform 'MeinPaket.de' (in the meantime it changed its name to de.allyouneed.com) facilitating conclusion of contracts between traders and purchasers, some of whom might be consumers. DHL Paket does not sell any of its own products there, which means that no sales contracts are concluded between them and consumers. In December 2012 DHL Paket took out an advertisement in a weekly newspaper Bild am Sonntag, in which advert they presented five different products available for purchase on their platform and mentioned providing access to over 5 million products and more than 2500 traders. Any person interested in the purchase of these five products could visit the online platform, enter the code corresponding to the product, as referred to in the advert. Only upon entering the product's code on the platform the consumer would be transported to a separate website, which would identify the trader selling this product. Under the heading 'Supplier information' further details of the trader, such as geographical address and the trading name, would be mentioned.

Competitors of DHL Paket complained that the identity of traders and their geographical address should be mentioned already in the advertisement, in order for it not to mislead consumers, on the basis of Article 7(4)(b) Unfair Commercial Practices Directive ("UCPD"). Therefore, they claimed that material information was missing from the advertisement and that the DHL Paket engaged in misleading omissions. One of the arising questions is, however, whether if the advertisement is printed but the product may only be purchased online, it would not suffice to provide this information on the website instead of in print, provided the printed advertisement refers to the website and it was easy to find this information on it. This would depend on whether consumers should receive material information pre-contractually (entering a website does not oblige consumers to conclude a contract) or prior to taking any transactional decision at all (entering a website counts as taking a transactional decision).

The CJEU confirms that an advertisement as mentioned above, clearly identifying the product and its price, should be seen as an invitation to purchase pursuant Article 2(i) UCPD (para 25). This means that it should contain all the material information necessary for consumers to make transactional decisions, provided, however, that there is space to present such information considering the medium used to give it to consumers, pursuant to Article 7(1) UCPD and previous CJEU's case Ving Sverige (paras 26-27). The CJEU confirms in this case that in the sharing economy sphere, where an online sales platform offers many products on sale by different traders and this is advertised in a print medium, there may be limitations of space within the meaning of Article 7(3) UCPD (para 29). In such a case thus, it may suffice for the online sales platform to refer to the website on which the material information will be provided to consumers, rather than to place this information already in the print advertisement (para 30). However, it is for the national court to determine whether the context of the invitation to purchase and the means of communication used for the advertisement justified this delay in providing material information to consumers. The CJEU confirms, however, the obligation of the online sales platform to provide information to consumers on the name and address of the supplier of individual products (para 31). Finally, the online sales platform needs to ensure that the material information on its websites is provided to consumers simply and quickly (para 32). This refers back to the transparency principle, adding a new requirement to the traditional ones, namely of 'quick' provision of information to consumers.

Press digest

Press digest

Sharing economy

Euractive reports (see here) that the European Commission delayed the publication of its guidelines on sharing economy from March until mid-2016. The guidelines are expected to clarify the legal position of the online platforms and the scope of application of the Services Directive, the E-Commerce Directive and consumer acquis. The legal position of online platforms is also currently being evaluated by the CJEU in two cases concerning Uber (see C-434/15 and C-526/15).

Social Media

Facebook is under investigation in Germany for the potential abuse of its dominant position in the social networking area that would consist of gathering excessive amount of data from its users, without giving them a choice to use the service otherwise (see here and here). The standard terms and conditions of Facebook could thus also be challenged, in this respect, as unfair.

Also Tinder's practices have been questioned by consumer organizations, in countries such as Norway, Slovenia, the Netherlands. Tinder's T&Cs reserve the right for the company to repurpose user-generated data even after the account is deactivated (permanent deletion is impossible!) by the user. This data could include even personal photos. Other terms in the Tinder's T&Cs would also fail the unfairness test under the Unfair Contract Terms Directive (e.g. setting the US Texas law as the applicable law). (see here)

Healthy food

At a conference in Amsterdam, most MS and some stakeholders agreed to work together to further reduce salt, saturated fat and sugar content in food products (see here).

Within the EU Parliament MEPs have endorsed in the plenary new fruit and milk scheme. The existing milk scheme for schools will be enriched by new rules on fruit and vegetable. The aim is to increase school children access to fresh products, as well as to improve their education on healthy eating (see here).

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)