New action by BEUC: Tamig Temu

We all like a good deal! However, those of us who know (a bit more) about consumer rights and consumer law are aware that cheap goods and services often come at a high price, by infringing our consumer rights.

TEMU, the online marketplace that has gained popularity in the EU, has recently came under the spotlight. This month, BEUC, The European Consumer Organisation, has taken a significant step by initiating an enforcement campaign against TEMU, named 'Taming Temu'. The campaign is a response to TEMU's violation of its consumer protection obligations under the Digital Services Act. The identified breaches include:

•   failing to provide sufficient traceability of the traders that sell on its platform and thereby to ensure that the products sold to EU consumers conform to EU law.
•   using manipulative practices such as dark patterns to get consumers, for example, to spend more than they might originally want to, or to complicate the process of closing down their account.
•   failing to provide transparency about how it recommends products to consumers.

BEUC filed a complaint with the European Commission, while 17 of BEUC’s members filed the same complaint with their competent national authorities. For a more efficient and effective enforcement action, BEUC asks the Digital Services Coordinators of each country (national authorities responsible for enforcing the EU’s Digital Services Act) to transfer the complaints to the Irish authority, TEMU’s country of registration. It would then be up to the Irish authority to take swift action to prevent further consumer harm.

Given the fast growth in the number of TEMU users, it is possible that the platform would pass the threshold of 45 million users per month, which would then classify it as a ‘very large online platform’ and grant the Commission competence to enforce the Digital Services Act.

Given that consumer law enforcement, especially against large platforms, was less effective in the past (see for instance our reports here and here), a concerted EU action is a welcome solution.

Revision of EU travel rules

By Alex Azabache on Unsplash

Last week, on November 29th, the European Commission announced the forthcoming (long-awaited) revision of EU travel rules (Improved rights and better information for travellers). This concerns a few legislative measures: 

1. Revision of Regulation 261/2004 on Passenger Rights through a newly proposed Regulation as regards enforcement of passenger rights in the Union

• new rules for passengers who booked flights via an intermediary
• an intermediary being defined as any ticket vendor, organiser or retailer other than a carrier
• new Article 8a adds a reimbursement right 
• passengers will need to be clearly informed by the intermediary and air carrier about the reimbursement process
• free of charge
• if reimbursement occurs through intermediaries: Air carriers shall reimburse intermediaries within 7 days, with intermediaries reimbursing passengers within further 7 days
• if passengers do not receive reimbursement within 14 days of choosing for this remedy, the air carrier contacts passengers to receive payment details and reimburses them within further 7 days
• new Article 14a adds rules on the transfer of passenger information, its safeguarding and when to delete it
• this will facilitate intermediaries sharing passenger information with air carriers, so that air carriers can be in contact with passengers about their flights
• strengthening enforcement mechanisms (similar mechanisms have been proposed to be added also to Regulation 1107/2006, Regulation 1177/2010, Regulation 181/2011, and Regulation 2021/782)
• new Article 15a requires air carriers to establish 'service quality standards' (Annex II contains a minimum list thereof) and implement 'a quality management system'
• new Article 16a specifies that the Commission will adopt a common form for reimbursement and compensation requests under Articles 7 and 8 Regulation 261/2004
• passengers will retain the right to submit their refund requests by other means
• passengers shall be free to provide information in any of the EU languages
• new Article 16b specifies that national enforcement bodies should adopt a risk-based approach to monitoring compliance with passenger rights
• this should allow detection and correction of 'recurrent non-compliance'
• new Article 16bb determines that carriers shall share information with national enforcement bodies within 1 month from the request (max 3 months in complex cases)
• new Article 16bc requires informing consumers about ADR

2. Revision of Regulation 1107/2006 on Rights of Disabled Persons and Persons with Reduced Mobility when Travelling by Air through a newly proposed Regulation as regards enforcement of passenger rights in the Union

• special right to assistance for persons with reduced mobility 
• including right for free of charge travel for a companion (if necessary to comply with safety procedures) - in Article 4(2)

3. New proposal for a Regulation on passenger rights in the context of multimodal journey

• multimodal journey is defined as a 'journey of a passenger between a point of departure and a final destination covering at least two transport services and at least two modes of transport' (Art 3(1))
• whilst the new provisions will apply to various types of multimodal journeys (single contract, combined contract, separate tickets) the unifying link between them (and limitation to scope) is that all transport contracts need to be offered by a carrier or intermediary
• whether payment takes place together for all services or separate is irrelevant though
• still, this means that the Regulation will not apply when it is the traveller who seeks out various connection between travel modes on their own
• Art. 4 - establishes the right to non-discriminatory contract conditions and tariffs
• discrimination is not allowed on the basis of passenger's nationality or the place of establishment of the carrier or intermediary
• Art. 5 - better information for passengers combining different travel modes (air, rail, road) in one trip
• e.g. on minimum connecting times between different transport modes, time schedules and conditions for the fastest trip, highlighting the lowest fares, disruptions and delays, complaint procedures
• intermediary transfers passenger data to all carriers involved to facilitate direct communication between them
• caveat: SMEs are exempted from having to provide real-time information
• right to assistance in case of missed connections
• Art. 7 - right to reimbursement and re-routing
• re-routing with the same (or another commissioned) carrier should not bring with it additional costs to passengers
• reasonable efforts should be made to ensure short delays in total travel time and to avoid additional connections
• reimbursement should be paid within 14 days (and may include vouchers, provided passengers agree to this)
• Art. 8 - reimbursement through intermediaries
• provided carriers agree, travellers could request reimbursement from intermediaries
• carriers then reimburse intermediaries within 7 days, and intermediaries have further 7 days to reimburse passengers
• if passengers do not receive reimbursement within 14 days of choosing for this remedy, the carrier contacts passengers to receive payment details and reimburses them within 14 days
• Art. 9 - right to assistance
• free of charge
• means and refreshments - reasonable to waiting time
• accommodation (and transport to it) - up to 3 nights
• Art. 10 - liability for combined multimodal tickets (with a single point of payment for all services) in case of missed connections
• carrier/intermediary liable to reimburse total amount paid for combined multimodal ticket + compensation (75% of the total ticket price) 
• unless clear information that the combined multimodal ticket consists of separate transport contracts
• Art. 11 - common form for reimbursement and compensation requests
• Chapter IV - contains rights for passengers with reduced mobility
• Chapter V - contains provisions on assuring quality of services
• Chapter VI - information and enforcement provisions

3. Revision of Package Travel Directive (2015/2302)

• Package organisers granted a right to a refund from service providers in case of cancellation or non-provision of a service within 7 days (Art. 22)
• to facilitate reimbursement of travellers within 14 days
• Downpayments for packages limited (new Article 5a)
• to max 25% of the package price, unless higher downpayment is justified by package organisers having to pay upfront for service provision
• total payment should not be requested until 28 days before the start of the package
• this is to protect consumers against risk of bankruptcy of organisers
• Revised Art. 12 clarifies termination rights in case of extraordinary circumstances (such as Covid-19)
• e.g. the need to consider official warnings against travel, but also serious restrictions that would have applied to travellers' travel at destination or upon return from travel at home country - when looking for justified termination
• New Art. 12a clarified vouchers policies 
• travellers transparently informed on the right to insist on a refund and voucher characteristics (validity period)
• voucher's amount should at least equal the amount of the refund right
• vouchers shall be valid min 12 months from the day travellers' accept them (with an option to extend by 12 months - once)
• refunded automatically (within 14 days) if not used before the end of the validity period
• vouchers shall be transferable to another traveller without any additional cost
• vouchers and refund rights covered by insolvency protection

Additional proposals have been adopted that aim to facilitate better provision of information to travellers on available travel modes, incl. combining different types of travel (revision of Delegated Regulation 2017/1926 on the provision of EU-wide multimodial travel information services). This new service intends to provide real-time information and updates, also on delays and cancellations, as well as specific information, e.g. on possibilities of taking bikes on a train (see more here).

Addictive design of digital services

Today the Committee on the Internal Market and Consumer Protection (IMCO) of the European Parliament adopted the draft report on Addictive design of online services and consumer protection in the EU single market (file to the procedure is here). This times nicely with the increased attention give to addictive online design by the European Commission, which intends to devote one of its two panels to this topic at the forthcoming 3rd Annual Digital Consumer Event (held on 30 November - more information and agenda is here). 

By Rodion Kutsaiev on Unsplash

The report draws attention to psychological vulnerabilities that 'certain' platforms and tech companies exploit online. The main concerns are about addictive, behavioural and manipulative design that maximises the frequency and duration of user visits. This is seen as leading to both non-material and material harm. Thus IMCO calls on the European Commission to conduct more evaluation whether new regulation could help 'close existing regulatory gaps with regard to consumer vulnerabilities, dark patterns and addictive features of digital services'. This follows from the assessment that existing measures (Digital Services Act and AI Act, but also Unfair Commercial Practices Directive) are insufficient to address these issues. As examples of dark patterns that current legislation would not consider as unfair the report mentions: infinite scroll, default auto play function, constant push notifications, read receipt notifications. 

Interestingly, in the report: 

• Point 3 - mentions the need to re-evaluate the main current notions of EU consumer law from the perspective of digital age, such as 'consumer', 'vulnerable consumer' and 'trader'. 
• Point 4 - draws attention to the limited function of transparency to fight deceptive design and calls for urgent need to assess whether certain practices should not be blacklisted under the UCPD (rather than transparently disclosed). 
• Point 6 - argues for (amongst others): 
• the integration of the concept of digital asymmetry into the UCPD; 
• reversal of the burden of proof for practices presumed to be addictive; 
• an obligation to ethically design digital services, which would be necessary to comply with professional diligence obligation.
• Point 7 - concerns the need to re-evaluate addictive and mental health effects of interaction-based recommender systems, incl. hyper-personalised systems. Overall, this point calls for the re-assessment of the desirability of online personalisation, and replacing recommender systems based on it with such that are based on chronological order or that give users more control.
• Point 8 - proposes introduction of the digital 'right not to be disturbed' by 'turning all attention-seeking features off by design'.
• Point 9 – calls for fostering of ethical design by default, which could be supported by the Commission upholding a list of good design practices. As best practices it mentions: 
• ‘think before you share’, 
• turning of all notifications by default, 
• more neutral recommendations, 
• up-front choice between colour and greyscale apps, 
• warnings when users have spent more than 15-30 minutes on a specific service, 
• automatic locks for certain services after a preset time of use, 
• weekly summaries of total screen time (but also with an option for a break-down), 
• in-app awareness campaigns on potential risks. Educational campaign should promote ‘self-control strategies to help individuals develop safer online behaviours and new healthy habits’.

The European Parliament intends for the principle of ethical design to be predominant for digital services and products (see press release here) in order to counteract harmful impact of digital addiction on mental health. The attention to mental health issues arising from online interactions, especially amongst minors, is rising, not only in the EU. The UK has just finished accepting submissions to its inquiry into Preparedness for online safety regulation (see here). This sensitive topic definitely requires more attention, thus we will be keeping an eye on the forthcoming discussions on this.

Update of ADR rules on the horizon

By GR Stocks on Unsplash

Today the European Commission announced their proposal to modernise ADR rules in Europe, in line with the digitalisation agenda (New measures to simplify the resolution of disputes out of court and boost consumer rights). This follows from the 2023 Consumer scoreboard results showing continued low numbers of consumers proceeding with enforcing their rights (1/4 of consumers experiences a significant consumer problem, but 1/3 of them does not complain for reasons related to time, cost and low confidence). The key points of the new plan to address these issues are: 

• Abolition of ODR (see for the proposal for a new regulation repealing ODR here) - currently the ODR platform facilitates ca 200 cases per year in the EU, which the Commission perceives as not justifying the costs of keeping this platform open and costs of business having to comply with ODR Regulation obligations (e.g. providing a link to ODR platform and assuring appropriate communication channels). The plan is to replace the ODR platform with 'user-friendly digital tools' assisting consumers in choosing a redress option.
• Broadening of the scope of ADR - it will no longer be necessary that a dispute stems from a concluded contract between the parties. This will allow encompassing all EU consumer law, incl. pre-contractual issues especially pertinent to online environment, e.g. misleading advertising and deceptive design, access to services and unjustified geoblocking. It aims also to start facilitating procedures against non-EU traders (although they as well would need to voluntarily join the scheme).
• Providing for additional consumer advice in accessing and during ADR process - to be delivered by designed bodies, e.g. European Consumer Centres Network. This could consist of translation, explanation of consumer rights, ADR procedures, etc.
• Removing some of the burdens for traders to encourage their uptake of ADR participation - e.g. reducing information obligations for traders. Additionally, ADR entities will ask traders whether they intend to participate in ADR when a consumer raises a complaint, which traders will need to answer in 20 days. This is aimed at prompting traders to (re-)consider their ADR participation.
• Removing some of the burdens and costs for ADR entities - e.g. reducing their reporting obligations (from every year to every 2 years, and requiring a more condensed report); facilitating bundling of cases with similar elements (although only upon consent of relevant consumers).
• Improving transparency - e.g. when a dispute is resolved through automated means, parties may request review by a natural person.

Additionally, the European Commission recommends online marketplaces to align their dispute resolution systems to European ADR principles, especially effectiveness, fairness, independence, expertise, impartiality, and transparency. See here for the Recommendation on quality requirements for dispute resolution procedures offered by online marketplaces and Union trade associations C(2023) 7019 final.

See for the new proposal for amending ADR Directive here. Additional information on the whole ADR review is here.

2nd Annual Digital Consumer Event of the European Commission

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

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

Covid-19's impact on consumer behaviour patterns

Last week the Commission published the new Key Consumer 2020 data following from the

Consumer Scoreboard 2020, which documents the changes in consumer behaviour during the pandemic, as it was conducted at the end of 2020. Interestingly, one of the emphasised by the report conclusions revolves around 'greener' consumption choices that have been made (see the press release here). This follows from the findings that 

• 56% of consumers said that 'environmental concerns influenced their purchasing decisions', 
• 67% - 'bought products that were better for the environment, even if such products were more expensive', and
• 81% - 'shopped closer to home and supported local businesses 

Other interesting findings indicate the increase in the amount of consumers shopping online, unsurprisingly, as well as more concerns about the ability to timely pay bills. The latter may have contributed to the noted consumers' reluctance to make a major purchase. Covid-19 delayed also consumers in making travel plans.

What does not seem to have been influenced by the pandemic is the high level of trust consumers have in retailers. The extra time spent at homes during the pandemic also did not seem to have encouraged consumers to read upon their consumer rights - as only 27% showed the knowledge thereof. Consumers remain also reluctant to take actions when there are issues with their transactions.

Green Consumption Pledge

Yesterday, the European Commission launched the Green Consumption Pledge, which is announced as the first initiative of the new Consumer Agenda, aiming to promote sustainable consumption. By signing the pledge companies commit to improve their environmental impact and help consumers make more sustainable purchases. The pledge is actually a set of five core pledges, and companies need to take specific measures in at least 3 out 5 of these pledges upon signing. They will also publish data on their progress to achieving these steps. The five core pledges are as follows:

1. Calculate the carbon footprint of the company (incl. supply chain) and commit to footprint reduction;

2. Calculate the carbon footprint of selected flagship products and to achieve certain reductions therein;

3. Increase the sale of sustainable products or services;

4. Commit part of the corporate PR expenditure to the promotion of sustainable practices;

5. Ensure information provided to consumers in relation to the company and product carbon footprints is easy to access, transparent and up-to-date.

This initiative is aimed at non-food products (as food products are covered by the separate Code of Conduct within the Farm to Fork strategy). Companies may join the pledge by contacting the Commission by end of March 2021. The companies that so far have joined are: L'Oreal, Renewd, Lego Group, Decathlon, Colruyt Group.

Who is on the nice or naughty list?: Digital Markets Act and Digital Services Act

European Commission published today two potentially game-changing proposals for the digital market: Digital Services Act (see here) and Digital Markets Act (see here). For those of our readers who have not heard about the works on the proposals for these two regulations, the Digital Services Act aims to 'comprehensively' regulate the obligations of digital service providers towards users of their services as well as enforcement authorities, whilst the Digital Markets Act sets out the rules for the digital market, e.g. defining its largest participants as so-called 'gatekeepers' and providing for additional obligations for them. These proposals will now be discussed further by the European Parliament and the Council. Below we provide a summary of the proposals.

Digital Markets Act

The advantage of the Digital Markets Act for consumers lies definitely in the environment this regulation aims to promote: more competitive, encouraging consumers to seek for, access and conclude the best possible deal, not locking them into digital services contracts they conclude. The gatekeepers to the market are companies located anywhere in the world, provided they offer their core platform services to business users in the EU or end users in the EU (Article 1(2)). The end users do not have to be consumers (Article 2(16)) as they may be legal persons, as well as natural persons.

Core platform services could be (Article 2(2)): online intermediation services, online search engines, online social networking services, vide-sharing platform services, number-independent interpersonal communication services, operating systems, cloud computing services, advertising services. 

Gatekeepers are defined (Article 3) as providers of core platform services who have a significant impact on the internal market (e.g. annual EEA turnover exceeds EUR 6.5 billion in the last 3 financial years and they provide the core platform service in min 3 Member States), operate a core platform service which serves as an important gateway for business users to reach end users (e.g. more than 45 million monthly active end users located in the EU and more than 10.000 yearly active business users established in the EU), and enjoy an entrenched and durable position in its operations (or could do so) (e.g. where it was an important gateway for the last 3 financial years). These thresholds are just an example, as the Commission has the power to designate other providers as gatekeepers (Article 3(6)). Generally, it is the gatekeeper who should notify the Commission that they have reached such a position (Article 3(3)).

Articles 5 and 6 specify the main obligations of the gatekeepers. These seem to focus on: limiting the scope in which platforms use personal data, not limiting a possibility for business users to offer the same products or services to end users on different platforms under different conditions, not restricting communication of business and end users outside the platform, allowing end users to un-install any pre-installed software applications on the platform, as well as facilitate installation of third party software applications, not prioritise in ranking products or services offered by the gatekeeper, limit bundling of services, facilitate switching of services, transparency obligations.

Further provisions of the proposal for this regulation are devoted mainly to various monitoring obligations, review processes and consequences for non-compliance (mainly fines).

Digital Services Act 

The main advertised advantage of this act for consumers is that the provisions of the regulation will offer them 'more choice, lower prices', 'less exposure to illegal content' and 'better protection of fundamental rights' (see here). These benefits are to result if the aims of the Regulation as defined in its Article 1(2) are achieved. Similarly to DMA this Act also will apply to providers of intermediary services regardless of their place of establishment, as long as the services are provided to recipients established or located in the EU (Article 1(3)). A recipient of the service again does not need to be a consumer, as it may be a legal person (Article 2(b)).

The obligations imposed by this Act are to bind providers of intermediary information society services (Article 2(f)), that is services where providers are either a: 'mere conduit' (transmitters of information provided by recipients or providing access to the communication network, e.g. Internet access providers), 'caching' service (where they temporarily store the transmitted information to make its transmission more efficient), 'hosting' service (where they store the information provided for and as requested by the recipient of the service, e.g. cloud services).

Articles 3-5 specify when providers of various information society services in the above-mentioned categories may be exempted from the liability for the content of that information, i.e. when it is illegal content. These provisions aim then to ensure that consumers (citizens) are indeed exposed to less illegal content (will they suffice? that is the question that goes beyond providing a short summary here!).

Importantly, if a provider conducts a voluntary own-initiative investigation that does not change the status of their exemption from the liability as determined in Articles 3-5 (Article 6). Thus self-checks are to be encouraged. However, there remains no general obligation to monitor the information which providers transmit or store (Article 7), similarly to the current E-Commerce Directive provision.

Articles 8-9 regulate how providers are to comply with orders about removing illegal content and providing information about users, respectively.

Other interesting for us provision may be:

- Article 12 - which obliges providers to transparently outline any content moderation procedures and tools in their terms and conditions;

-  Article 13 - requiring providers to publish an annual report on past year's content moderation; Article 23  adds also an obligation to provide reports on the number of disputes submitted to ADR, number of suspensions (Art 20) and any use of automatic means for the purpose of content moderation;

- Article 14 - providers of hosting services are required to facilitate users notifying them about illegal content and allowing them to act upon such notifications (notice and action);

- Article 15 - requires hosting services providers to notify, in a reasoned and transparent manner, users if their content is removed/disabled/etc as illegal;

- Article 17 - sets out rules on an internal complaint-handling system for online platforms, which they are to provide to recipients of services for min 6 months following either removal or disabling of access to the information provided by recipients, suspension or termination of the service, suspension or termination of the account;

- Article 17(4) and Article 18 - recipients of services should be informed about and have access to ADR;

- Article 19 - specifies rules for processing of notifications of trusted flaggers;

- Article 20 - determines when providers could suspend users' accounts due to misuse, i.e. frequent posting of illegal content;

- Article 22 - specifies that online platforms are required to obtain information from traders allowing to trace identity and location of such traders and should check the reliability of this information;

-  Article 24 - online advertising has to be clearly displayed as such, together with parameters used to determine the recipient to whom the advertisement is displayed;

- Articles 26-33 - contain obligations for very large online platforms, in the same categories as described above, but with stricter provisions.

Further provisions pertain to various enforcement and penalties issues, as well as the plans to encourage adoption of standards and codes of conduct.

Underused consumer ADR and ODR platforms - Commission's report

Some of our readers may be interested in the report that the European Commission has published this week assessing the functioning of the ADR/ODR systems for consumers across the EU. Whilst remaining positive about the ADR/ODR options for consumers, the Commission expresses mild concern about the fact that these dispute resolution platforms remain underused. The reports conclusion mentions as problematic: 

• ADR awareness and perceptions (e.g. awareness is lower in SMEs than in large retailers; consumers consider ADR as biased towards traders or as traders' customer care service; traders worry about ADR being biased towards consumers);
• The navigability of national ADR landscapes (e.g. if a Member State has a large number of certified ADR entities, there is lack of clarity to which of them to turn to, and sometimes due to their specialisation consumers may need to seek full dispute resolution with more than one entity at the same time);
• Traders' uptake of ADR (on average, 1 in 3 retailers is willing to use ADR at the moment);
• Workflow on the ODR platform (e.g. the fact that the dispute will not be referred from an ODR platform to an ADR entity unless the parties agree on the ADR entity hinders the dispute resolution; currently, the ODR platform is perceived as not providing sufficient information on consumer rights and redress options).

The Commission intends to further encourage traders to refer their disputes to ADR/ODR platforms, promoting their use in special campaigns, as well as by organising the second ADR Assembly in 2020. It also indicates in the report best practices on improving the awareness of ADR/ODR platforms in various countries, as well as on how to clarify the ADR landscape (read the full report here).

Are contract summary templates transparent? - feedback opportunity

The European Commission asks for feedback on the draft contract summary template, which all consumers must receive from e-communication service providers. Commission aims to make this template 'clear and understandable' and to facilitate comparison of services of different providers, thus transparency is definitely one of the key points that should be considered during the evaluation. Feedback may be submitted until 9 September on this website.

Commission guidance note on Unfair Terms Directive

The European Commission adopted today a guidance note on unfair contract terms. It is intended to ensure that consumer associations and legal practitioners, including judges, will be better equipped to protect EU consumers from unfair contract terms. The guidance note is based on the case law of the EU Court of Justice on Directive 93/13. As a complement to the guidance note, European businesses organisations have drawn up recommendations on how mandatory consumer information as well as terms and conditions can be presented to consumers in a more user-friendly and transparent way.
Both initiatives follow up on the REFIT Fitness Check of EU consumer and marketing law, as announced in the Commission’s Communication on a New Deal for Consumers.

Source: https://www.pubaffairsbruxelles.eu/fighting-unfair-contract-terms-commission-issues-guidance-to-better-protect-consumers-eu-commission-press/ 

A New Deal for Civil Justice? The New Deal for Consumers and the Justiciability of EU Consumer Rights

The Centre for the Study of European Contract Law (CSECL) holds its annual conference on Thursday 11 and Friday 12 April 2019 at the University of Amsterdam.

The 2019 CSECL conference revolves around the New Deal for Consumers that was proposed by the European Commission on 11 April 2018. It focuses on issues of civil justice that the New Deal aims to address – and, crucially, the question it appears to raise. A particular focus will be on the interaction and tension between different functions of enforcement mechanisms in consumer law, as well as the public and private interests involved at different levels. What or whom is the New Deal for?

For the provisional programme, click here. 

The conference will bring together researchers and practitioners interested in (the future of) European private law, civil procedure, consumer law and, possibly, others with a more general interest in the enforcement of EU law and EU constitutional law.

Keynote speakers:

• Prof. Colin Scott, University College Dublin
• Dr. Eva Storskrubb, Uppsala University

Conference and call for papers on New Deal for Consumers

On 11-12 April 2019, the conference A New Deal for Civil Justice? The New Deal for Consumers and the Justiciability of EU Consumer Rights will take place in Amsterdam. It is organised by the Centre for the Study of European Contract Law (CSECL) and revolves around the New Deal for Consumers that was proposed by the European Commission on 11 April 2018. The conference focuses on issues of civil justice that the New Deal aims to address – as well as, crucially, the questions it appears to raise. It will bring together researchers interested in (the future of) European private law, civil procedure, consumer law and, possibly, others with an interest in the enforcement of EU law and EU constitutional law.

For more information and the call for papers, click here. 

CSECL particularly welcomes papers that expressly address the interaction and tension between different functions of (consumer law) adjudication and enforcement mechanisms, as well as the converging or diverging (public and private) interests involved at the different relevant levels. Who or what is the New Deal for?

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.