e-IDs

Last Monday, the European Commission presented a new proposal for a regulation (on electronic identification and trusted services for electronic transactions in the internal market) that would lead to more security of electronic transactions. The aim is to enable European citizens to use their own national electronic IDs in order to access public services in other Member States that require the use of e-IDs. As a result, the electronic signatures and related trust services will need to have similar legal status in the EU and may grow in importance (facilitating also eProcurement).

One has to wonder, however, whether these ambitious goals will be reached since the European Commission does not intend to force any Member State to introduce a new e-ID system, nor to join into the European recognition of national e-IDs, neither will it lead to an introduction of a European e-ID. (Digital Agenda news)

Still, the European Commission sees the importance of the new rules and mentions as potential beneficiaries of this new regulation: students (being able to register at a foreign university without having to travel abroad), citizens having affairs (business or personal ones) in different Member States (e.g. arranging a marriage abroad, moving abroad, filling tax returns abroad), patients (who could allow access to their online medical records to foreign doctors), etc. (Q&A)

Children and (safe) medicines

It is a sensitive topic, isn’t it? When it comes to children, special rules applies. That is why all (EU) institutions – without any exceptions – are obliged to increase the transparency of procedures for ensuring that children can benefit from medicines.

In order to protect better the health of children, the EU adopted a Paediatric Regulation in 2006. The Regulation includes an obligation requiring pharmaceutical companies to conduct tests to determine whether and how their medicines can be used to treat children. European Medicines Agency (EMA) is responsible for ensuring that pharmaceutical companies comply with their obligations under the Paediatric Regulation.

In October 2009, two pharmaceutical companies lodged a complaint with the the European Ombudsman because EMA was obliging them to test how their heart failure medicine could be used to treat children. They alleged discrimination, since EMA had exempted two similar medicines from the requirement to be subjected to such tests.

EMA stated that the limited number of children suffering from heart failure meant that only one heart failure medicine could be tested effectively. According to EMA, the complainants' medicine was the most promising, and thus the most appropriate medicine to test.

The Ombudsman conducted an investigation into the assessment procedures for the different medicines. He came to the conclusion that EMA was indeed entitled to oblige the complainants to conduct the tests. However, he criticised EMA's failure to ensure adequate transparency in its decision-making process. He called on EMA to document fully and disclose its assessments in the future and also to introduce relevant guidelines in this respect. He asked EMA to reply to his recommendation by 30 September 2012.

Better information on delayed train connections - AG in the CJEU case C-136/11 (Westbahn Management)

7  June 2012: opinion of the AG Jääskinen in the CJEU case C-136/11 (Westbahn Management)

This new case of the CJEU concerns transport services offered to consumers. We talk a lot on this blog about protection offered to passengers of air planes, but not so often do we get a chance to discuss European measures in other areas of transport, such as railway.

In the given case Westbahn Management wanted to provide passenger services on the railway line between Vienna West Station and Salzburg Central Station. They were granted an operational authorisation to provide these services by decision of the Federal Ministry of Transport, Innovation and Technology of 29 May 2009. In the case referred to the CJEU they sued ÖBB Holding AG which is a sole shareholder in the largest rail infrastructure management company in Austria. The reason for that was a lack of access to the information that the ÖBB had and was not fully willing to share. Namely, the ÖBB disposes of real-time data on all trains operating on the Austrian rail network, including the current positions of trains, arrival/transit/departure times for the remainder of the journey, data on delays and cancellations. They share this data only in so far as it concerns the trains of the railway undertaking they are sharing it with, and not of other railway undertakings. However, all the data is displayed by ÖBB on electronic notice boards at major stations. Westbahn Management required access to all real-time data from the ÖBB in order to be able to inform its passengers about current departure times of their connecting trains, which was especially relevant in case of delays and cancellations. ÖBB refused such a disclosure and claimed that it could only be possible if Westbahn Management concluded agreements with all other railway undertakings operating in Austria, who would then disclose their own data to it. Interestingly enough, a company owned by ÖBB (ÖBB-Personenverkehr AG) refused to sign such an agreement. And so, the legal proceedings began.

The Austrian Commission (monitoring competition proceedings) stayed proceedings and asked the CJEU, whether Article 8(2) of the Regulation No. 1371/2007 of 23 October 2007 on rail passengers' rights and obligations should be interpreted as meaning that information on main connecting services must include, in addition to scheduled departure times, notification of delays to or cancellations of those connecting services. If the answer to this question was in the affirmative, then the second question arises as to the interpretation of Article 5 of the Directive 2001/14/EC of 26 February 2001 on the allocation of railway infrastructure capacity etc. Namely, does it oblige the railway infrastructure manager to make real-time data on other railway undertakings' trains available to railway undertakings in a non-discriminatory manner, as long as those trains constitute main connecting services?

The AG Jääskinen believes that the answer to both these questions should be in the affirmative.

First, the AG considered a claim that information concerning delays and cancellations of train services could amount to a business secret (and therefore, not easily be shared). (Par. 31) The AG does not give credence to this claim, since according to him information will only amount to a business secret under EU law if it was confidential information, disclosure of which could harm the undertaking, and information about train delays and cancellations is not confidential in nature. To the contrary, disclosure of such information is necessary in order to guarantee a well functioning rail transportation system. ÖBB realises that and the importance thereof to passengers since it displays is on electronic boards. (Par. 33-34) Moreover, this information should not be perceived as personal data, that needs additional protection under EU law, since this information does not give away any details on passengers, or even on other service providers as such, but only on the issue of whether the scheduled connecting services are in fact available. (Par. 36)

As far as the objectives of the Regulation are concerned, it aims at safeguarding users' rights for rail passengers and to improve the quality and effectiveness of rail passenger services, as well as to attain high level of consumer protection. (Par. 38)

"This includes the right to obtain information concerning rail journeys both before they commence and while they are being taken, and, wherever possible, as soon as possible (recital 4)." (Par. 38)

A narrow interpretation of the provisions in the Regulation would limit the information to which passengers are entitled to the departure times described in the timetable. It would be contrary to the aims of the Regulation, among which the passengers' right to be informed of late arrivals and departures by the railway undertaking or the station manager as soon as such information is available. (Par. 40) The information on scheduled times of departure and arrival becomes useless in case of delays and cancellations, and if during the journey the passenger might obtain only such information it would be a mere repetition of the information he had already received. (Par. 41) The systematic interpretation of the Regulation confirms the difference between the static information before the journey begins, and the dynamic information during the journey. The information at these different points of time that consumers need is not generally the same. (Par. 42)

Finally, the Directive 2001/14 needs to be interpreted in a way to facilitate reaching of the objectives envisaged under Regulation No. 1371/2007. (Par. 49) This suggests that rail undertakings should be entitled to real time data from the infrastructure manager. (Par. 52)

Who are the champions?

Consumer protection in the past few years grew significantly in importance. As a result the European institutions do not limit themselves to drafting new consumer legislation and supervising their implementations but try also to intervene whenever European consumers' interests could be endangered in more ad hoc matters. A recent example thereof is the creation of a new website that gives consumer tips to fans travelling to EURO 2012 games in Poland or Ukraine. This new website is accessible, e.g., from the UEFA EURO 2012 homepage and will be broadly advertised, e.g., in hotels in Poland. The idea is to give an overview to consumers travelling en masse to and from Poland of their rights and obligations in this country, e.g., when their luggage will get lost on the way to the games, or when the hotel service will not be as advertised.

"The Europe Direct Contact Centre services will answer any on-line query on general EU consumer rights in 23 languages while a consumer Infoline in English – operated by the Polish consumer organisation Federacja Konsumentów – will provide legal support to those who run into consumer problems in Poland." (European Commission and UEFA launch 'Consumer Tips' for fans travelling to EURO 2012)

The infoline should already by open and operate until 31st of July 2012. The free number from a Polish phone (either mobile or fixed-line) is: 800 007 707. From a foreign phone you should call (it's not free then!): 0048 228 27 5474.

ACTA under more fire

We have mentioned previously that the European Commission considered referring ACTA to the CJEU as potentially infringing fundamental rights (ACTA referred to the CJEU) and the criticism it has received from the European Data Protection Supervisor (ACTA endangers fundamental rights of the EU citizens). This Monday (5th of June 2012) the fourth committee of the European Parliament rejected the ACTA. Of course, the positions of these committees are not binding, which means that the main committee responsible for giving its recommendation to the EP - the International Trade Committee - can still issue such a recommendation. However, it is a strong sign of the controversies surrounding the adoption of the ACTA which the EP members cannot ignore.

To sum up: the Civil Liberties Committee issued concerns as to the lack of compliance of the ACTA with the EU Charter of Fundamental Rights, since it does not ensure full respect for private life or full protection of sensitive personal information; the Industry Committee pointed out a lack of balance between intellectual property rights, business freedom, protection of personal data and the freedom to receive or provide information; finally also the Legal Affairs Committee and the Development Committee voted against the recommendation. (ACTA now rejected by four EP committees)

London Calling: new roaming rules

On the 30th of May 2012, the European Council adopted a regulation on roaming on public mobile communications networks within the EU. We have already discussed this new legal act (Hello? Hello?...) so it's only necessary to mention that the official text will be published in the EU Official Journal of 30 June 2012. (Council adopts new roaming rules)

Between Scylla and Charybdis - Secola 2012 on principles and rules

Last Friday and Saturday, the majority of authors of this blog attended the Secola conference on 'Principles and specific rules in European contract law'. In the beautiful setting of the Aula Magna of the University of Messina (Sicily), different aspects of this theme were discussed. 

The speakers posed some intriguing questions on the role of principles in European private law and the possible future development of such principles, for instance in the context of the application of a Common European Sales Law (CESL).  These included:

- the concept of freedom of contract and its limits (Salvatore Patti)

- the role of the principle of proportionality in European private law - given its flexible nature, how can this principle facilitate access to the internal market and how does it affect the balancing of interests in private legal disputes? (Gary Low and Caroline Cauffman)

- the role of the principle of effectiveness - can Article 47 of the EU Charter of Fundamental Rights be applied to the review of national legal remedies, in order to upgrade remedies for the breach of EU law via a consistent interpretation of national laws? (Norbert Reich)

- general principles derived from the acquis communautaire (Elise Poillot)

- the role of principles in codification processes - to what extent does the proposed CESL require judges to make law and, in particular, do we expect the Court of Justice of the EU to fill in all blanks within CESL's scope? (Simon Whittaker)

- principles of law in soft law instruments, such as PECL and Unidroit (Jan Kleinheisterkamp)

- principles and rules - following a Dworkinian approach, to what extent can principles of European private law yield specific rules and legitimize the solutions to 'hard cases'? (Pietro Sirena and Yehuda Adar); in my opinion a very interesting approach, though it raises many questions (some of which I also struggled with myself in a paper prepared for last year's Utrecht conference on principles and law)

- the principle of efficiency and European contract law - why should the principle of efficiency be followed when drafting and applying measures of European contract law, such as the CESL? (Horst Eidenmüller); a perspective that raised eyebrows among some of my Amsterdam colleagues who attended the conference, for (social justice) reasons explained (to a certain extent) here and here

- unjustified enrichment (Carlos Ignacio Gómez Igüerre)

- good faith and reasonableness - submitting that both concepts match with a solidaristic view of (European) contract law, how can they be made operative in, for instance, the case law of the Court of Justice of the EU? (Emanuela Navarretta)

The proceedings of the conference are planned to be published in Secola's series of conference books.

Timeshare transposition final

The new Timeshare Directive, which replaces an older Directive from 1994 (Directive 1994/47/EC), was due to be transposed across the EU by February 2011. Unfortunately, many Member States failed to fulfill their transposition duties in 2011. This unfortunate situation changed on 31 May 2012, when the European Commission closed an infringement case against Spain on the Timeshare Directive (Directive 2008/122/EC) after the country notified the Commission of a new law (Decreto-ley) transposing the rules. The Commission also closed a case against the UK following its recent transposition of the Directive for Gibraltar. As the Commission also closed cases against Lithuania, Poland and Slovenia on 22 March, this means that all Member States have now transposed the Directive into their national law. After ensuring that all Member States have adopted the necessary measures, the Commission will, as a next step, carry out a thorough assessment of the overall quality and completeness of the transposition. More.

Special consumer jurisdiction not only for contracts concluded online: AG's opinion in CJEU case C-190/11 (Mühlleitner)

24 May 2012: AG's Cruz Villalón opinion in the CJEU case C-190/11 (Mühlleitner)

Some time ago we discussed two CJEU cases Pammer and Hotel Alpenhof (ECJ instructs businesses what NOT to publish on their website to keep operations domestic only...) in which matters of international private law that influence consumer protection were discussed. In the case Mühlleitner, once again a special jurisdiction in consumer cases is being discussed.

Daniela Mühlleitner lives in Austria and was looking online for a second-hand car for her private use. She filled in a form with the characteristics of a car she wanted on the website: www.mobile.de and one particular link to an offer caught her interest. Upon clicking on that link, she was re-directed to a website of Ahmad Yusufi and Wadat Yusufi (the defendants). She contacted them by phone, was informed that the car chosen by her was no longer available but they had similar ones to offer. She agreed to receive an email with more information about available cars including photos. Moreover, she indicated to the sellers that she lived in Austria and it was not considered to be an obstacle in concluding a sales contract. Some time later she went to Germany and concluded the sale contract with the defendants. Soon afterwards, upon her return to Austria with the car, she discovered defects in it. Since she could no longer get in touch with the sellers, she started legal proceedings to claim re-payment of the sale price and damages. The Austrian courts did not believe they had jurisdiction over these proceedings.

As a reminder, article 15 (1) (c) of the Regulation 44/2001 declares that the courts of consumer's country of domicile could have jurisdiction if the seller conducted his activity in this country or directed his activities to this country. In case, Pammer and Hotel Alpenhof the CJEU indicated certain factors that should be taken into account in order to determine whether sellers directed their activity to consumers from other Member States.

The question in Mühlleitner case was whether article 15 (1) (c) of the Regulation should be applied in this case, i.e. whether it applies only in situations of contracts concluded at a distance.

The AG Cruz Villalón argues that the applicability of this article is not limited only to contracts concluded at a distance. (Par.12) Firstly, historical arguments are being raised - previously binding Treaty of 1968 contained a similar provision whose application was neither limited to distance contracts. (Par. 15) Moreover, official statements of the Council and the Commission as well as previous judgments of the CJEU (e.g., Ilsinger) determine that article 15 refers to a number of sales methods, among others also distance sales contracts concluded online. (Par. 20) Therefore, it is clear that the Regulation did not aim at limiting a number of consumer contracts to which article 15 and a special jurisidiction in consumer cases would apply. (Par. 21)

There must be a bank (account) for everyone?

Yesterday the Economic and Monetary Affairs Committee of the European Parliament took a potentially very important step towards effective inclusion of all European citizens in contemporary markets- By a vote of 36 to 2, the Committee has urged the European Commission to propose by January 2013 a European legislation establishing a legal right to a  basic bank account. 

The rapporteur said that having a basic payment account is nowadays necessary to lead a "normal" life. Given the importance of the subject and the reluctance of national legislators and (above all) private actors to proceed in the direction of universal access. legislative action should not be postponed. The proposal, however, does not seem to aim at imposing the establishment in all legal systems of a no-frills no-costs account; it could be questioned, as a consequence, whether the take up of basic accounts on the side of consumers would significantly increase as a consequence of European action.