Reaffirming Established Case Law, Withholding Guidance? – CJEU in APS Beta Bulgaria (Case C-337/23)

Foto von Linus Nilsson auf Unsplash

The recent ruling in APS Beta Bulgaria (C-337/23) provides another example of the Court of Justice reaffirming its established case law on consumer credit. However, it also illustrates a more subtle tendency: interpretative restraint. 

This post argues that, while the Court preserves the continuity of its case law, its reluctance to provide detailed interpretative guidance risks undermining the aim of achieving a high level of consumer protection.

Facts of the Case

In the case at hand, consumer-borrowers concluded credit agreements with Easy Asset Management AD and Credissimo AD, with an annual percentage rate of charge (APRC) of approximately 40–50% and repayment terms between three and eighteen months.  Under each agreement, consumers were required to provide security, including a guarantee, for which specific fees - exceeding 75% of the total amount repayable under the credit agreement - were charged. The guarantee was to be provided either by two natural persons meeting certain criteria, or by a bank or company selected or approved by the creditor. In each instance, the consumers tendered a guarantee from a company nominated by the creditor, including in one case a subsidiary of the creditor itself. Under Art. 147 ZZD (Bulgarian Law of Obligations and Contracts), a guarantor remains liable only if the creditor brings proceedings against the debtor within six months of the principal obligation becoming due. In the present case, guarantors satisfied the debt - except in one instance - after this period had expired, and subsequently assigned their claims to APS Beta Bulgaria EOD or Agentsia za kontrol na prosrocheni zadalzhenia AD, which then sought repayment from the consumers through order for payment proceedings. In these circumstances, the referring court (Sofia District Court) submitted questions for a preliminary ruling.

Reasserting jurisprudence constante

Some of the questions addressed in APS Beta Bulgaria have already been the subject of established case law in recent years. For example, in response to the fifth question, the Court of Justice reaffirmed that the classification of a commercial practice as unfair, following Pereničová and Perenič, constitutes just one aspect of the broader context within which standard terms are to be assessed for unfairness, under Art. 4(1) and Art. 3(1) UCTD (paras 75-77).

Similarly, the Court reaffirmed that national courts are under a duty to examine the unfairness of standard terms ex officio. However, a mere doubt as to their unfairness is not sufficient to support a finding to that effect. In this regard, the Court confirmed that where national courts are empowered to take investigative measures of their own motion to supplement the case file - provided that the audi alteram partem principle is respected - this power extends to order-for-payment proceedings. This position is consistent with case law beginning with Banco Español de Crédito, in which the ex officio obligations of national courts were recognised in the context of such proceedings. By confirming the relevance of the audi alteram partem principle, the Court also underscored that the parties to the proceedings are expected to assume an active role. In this respect, the Court reaffirmed its jurisprudence constante (e.g., ERSTE Bank Hungary, para 62; Sziber, paras 46-47; Lintner, paras 38–39, 44).

In answering the first question, the Court also reaffirmed its case law established in Kásler (paras 37-38), Matei (para 50) and Andriciuc (para 34), holding that the concept of the main subject matter of the contract under Art. 4(2) UCTD constitutes an autonomous concept of EU law (paras 49–52). The Court once again defined the main subject matter as the essential obligations of the contract, which do not appear to correspond directly to the concept of essentialia negotii under national law, particularly as there is no express reference to the law of the Member States (para 51). The issue arose as to whether the contract of guarantee might be excluded from unfairness control on the basis that it constitutes a separate agreement, whereas a guarantee would merely qualify as an ancillary term under the credit agreement. The Court held that the credit and guarantee agreements should be regarded as forming a single contractual relationship, especially where the costs of the guarantee are payable within the credit instalments. Accordingly, the assessment of whether a contract term constitutes a core term must be undertaken with reference to the essential nature of the obligation within the overall contractual relationship, rather than by isolating the contract of guarantee (paras 55–59). In so doing, the Court opened the way for the assessment of unfairness of the contract of guarantee, without classing it as falling under the scope of the exclusion under Art. 4(2) UCTD (paras 53–54).

A similar observation may be made regarding the Court’s answer to the eighth question. It confirmed that the concept of the total cost of credit to the consumer is defined broadly to include all costs which the consumer is required to pay in connection with the credit agreement. In this regard, it follows that the costs linked to a contract of guarantee - where the conclusion of such a contract is imposed on the consumer by a term in the credit agreement and contributes to the overall consumer’s debt - fall within both the concept of total cost and that of the APRC (paras 86-93). Notably, the Court did not engage with the concept of ‘total cost of the credit’ as an autonomous concept of EU law, although it might have done so, particularly given its approach in Soho Group (paras 39, 51). 

In a similar vein, the Court reasserted its case law on the proportionality of sanctions as developed in Profi Credit Bulgaria, namely that a failure to provide a correct APRC, accurately reflecting the extent of the consumer’s liability, may under national law (that is, it is proportional) result in the creditor being deprived of entitlement to interest and charges connected to the credit agreement. This raises the further question whether any failure to indicate the APRC - irrespective of its seriousness - may justify the same sanction, or whether certain inaccuracies, such as minor discrepancies (as under French law, see Art. R313-1 II Al. 4 C. con.) or errors in favour of the consumer (e.g., where the APRC indicated in the contract is higher than the actual one), could still be regarded as proportionate grounds for forfeiture of interests and charges linked to the credit agreement.

Some Doubts Regarding Interpretative Restraint

Although the Court has reaffirmed its jurisprudence constante, certain aspects of the judgment may nevertheless be viewed critically - particularly in relation to the Court’s interpretative restraint. 

For instance, in addressing the second and third referred questions, the Court focused on three types of contract terms that may be considered unfair under the Annex to the UCTD. These include terms (Point 1, (i), (j), (m) of the Annex I UCTD), which: first, irrevocably bind the consumer to provisions of which they had no real opportunity to become aware before the conclusion of the contract; secondly, allow the seller or supplier unilaterally to alter the terms of the contract without a valid reason specified therein; and thirdly, grant the seller or supplier the exclusive right to determine whether the goods or services supplied conform with the contract, or to interpret the terms of the contract unilaterally. As the Court observed, a contract term by which the consumer undertakes to conclude a contract of guarantee with a guarantor chosen by the lender - without being aware, at the time of concluding the credit agreement, of the guarantor’s identity or the terms of the guarantee - does not correspond to any of the contract terms listed in the Annex to the UCTD (paras 62–63). Nonetheless, this does not preclude its classification as unfair. Such a term must instead be assessed under the general unfairness criteria laid down in Art. 3(1) UCTD (para 63). What remains unclear, however, is why the Court refrained from offering more specific guidance on how such terms might be assessed for unfairness, or under what circumstances they could justifiably be found unfair under the criteria of Art. 3(1) UCTD. While it is true that this assessment ultimately falls to national courts, the Court has previously provided tailored guidance on the application of Art. 3(1) UCTD to specific types of terms - such as accelerated repayment clauses in Banco Primus (paras 65–67) or, more recently, in Všeobecná úverová banka (para 86). Its failure to do so in this case may be understood as a form of interpretative restraint, even though such guidance would have been of practical value to other Bulgarian courts in assessing similar clauses in related proceedings, including those not subject to the current reference in the preliminary ruling procedure. It remains to be seen whether more detailed guidance will be offered in the still pending analogous case Financial Bulgaria (C-426/23). 

A comparable concern arises from the Court’s answer to the fourth question on unfair commercial practices. Although the referring court sought only a classification of the practice as aggressive under Annex I to the UCPD (paras 66–71), the Court might have offered broader guidance on whether such a practice could also fall within the general concept of unfairness under this directive. Although such clarification - comparable to the guidance the Court has been providing under the UCTD - would have been of practical relevance for Bulgarian courts, this approach remains arguable, since the Court was bound by the narrowly framed question referred by the national court concerning Annex I of the UCPD. 

A further issue arises from the Court’s response to the sixth and seventh referred questions. The Court held that it could not assess the compatibility of national case law with, inter alia, Art. 5 and 7 UCTD, as both provisions concern contract terms rather than the legal effects that arise from the judicial application of national legislation (para 79). Although this distinction is formally correct, the Court could have engaged with the broader context or, at least, acknowledged that the UCPD framework may be relevant in such circumstances - particularly concerning time limitations. Where guarantors - potentially subsidiaries of the lender and within one overreaching contractual framework - satisfy the debt after the applicable national limitation period has expired, such conduct may effectively circumvent debtor-protective rules. This raises serious concerns whether such commercial practices could not be viewed as unfair commercial practices under the UCPD framework.

Of particular interest is that the Court did not classify the credit agreement and the contract of guarantee as a linked credit agreement within the meaning of Art. 3(n) CCD (2008), thereby excluding the application of Art. 15 of that directive (paras 80–85). While this narrow conclusion is justified on the basis of a literal interpretation of the referral, the Court could have addressed Art. 17 CCD, a provision invoked by the Commission during the proceedings (AG, para 25). A more thorough engagement with this provision would have offered clearer guidance to national courts in cases involving analogous contractual arrangements where one agreement, such as a guarantee, is intrinsically linked to another, such as a credit agreement.

Where Now?

The underlying doubts surrounding the Court’s interpretative restraint in this case may be understood through the lens of judicial dialogue. As AG Collins observed in his Opinion (AG, paras 24–25), it is the responsibility of national courts to formulate the questions referred to the Court of Justice, and the Court limits itself to answering the questions so posed. Nonetheless, the Court’s reliance on a strictly literal reading of both the referred questions and the applicable legal provisions - without situating them in their broader factual and regulatory context - reflects a form of interpretative restraint or even escapism. This approach appears designed to preserve the formal boundaries of judicial dialogue, but it comes at the expense of substantive guidance for national courts. In other words, such interpretative restraint appears to balance judicial dialogue over the need to provide legal certainty for consumers - and, by extension, over the achievement of a high level of consumer protection. This is particularly problematic when it comes to clarifying general clauses or engaging with provisions such as Art. 17 CCD (2008). The issue is especially pressing considering growing concerns about informal debt collection practices, which have recently been the subject of detailed academic analysis (see Stănescu 2025, in OA). What emerges from this case is a broader and more pressing question: does APS Beta Bulgaria reflect an isolated instance of an overemphasis on judicial dialogue, or does it signal a broader shift toward interpretative restraint - or even escapism - in the Court’s ever-evolving case law?

New Green Deal proposals published today: Right to repair

Photo by Kilian Seiler on Unsplash

The European Commission published two new legislative proposals today implementing the programme of the European Green Deal for Consumers: Proposal for a Directive on new rules on substantiating green claims and Proposal for a Directive on common rules promoting the repair of goods (text of both proposals may be found here). Below we provide our first thoughts on the proposal on the right to repair. 

Promoting the right to repair (COM(2023) 155 final)

Consumer Sales Directive prioritises consumers' access to and choice of two remedies in case goods are defective (non-conforming the contract): repair and replacement. Traders may refuse the remedy chosen by consumers if it is impossible to provide or it would be disproportionate to provide it. Infamously, the assessment of disproportionality does not account for environmental impact of the to-be-provided remedy (although some national courts started to include this impact in their assessment). Consumers are often not incentivised to ask for repair, which may be perceived as more time-consuming, less trustworthy, difficult to obtain. For traders repairing goods is also often a less preferred solution, e.g. due to the need to keep spare parts available, arrange repair points.

The new proposal aims to address the above-mentioned issues and incentivise more uptake of repair as a chosen remedy, which should also incentivise producers and traders 'to develop more sustainable business models' (see Commission's press release here).

What are the proposed legislative changes:

• Sellers to offer repair, unless it is more expensive than replacement.
• Comment 1: This limits the choice of consumers as to their remedy. We could argue that the choice left to consumers is illusory. Unless repair is more expensive, consumers have to accept it. If replacement is cheaper but consumers would exercise their choice for repair instead, sellers would be able to claim disproportionality of remedies and provide replacement instead. 
• Comment 2: Proponents of promoting repair as leading to more sustainable consumption are bound to be disappointed by this middle-of-the-way solution. It is worth noting, that previously unless repair was more expensive than replacement, there was no disproportionality when consumers asked for repair, thus sellers needed to provide it to consumers, as well. The only difference then is that now consumers will need to accept repair even if it was not their first choice. This may increase the number of repairs on the market, but would the change really be significant? It will depend on what is calculated in the price of repair vs replacement (e.g. price of environmental impact?), the availability of spare parts etc. Assessment of disproportionality remains key and has not been further addressed by the proposal.
• Consumers to have a right of repair against producers for products that are technically repairable under EU law, when their legal guarantee with sellers expires (that is which are covered by reparability requirements)
• Comment 1: This new right fills the gap that often occurred when the product would malfunction immediately after the legal guarantee's expiry date, or when non-conformity at the moment of delivery could not be established. However, the scope of the application of this new right is rather limited (see below).
• Comment 2: Repairability requirements are any EU law requirements listed in Annex II that enable a product to be repaired. This limits the applicability of this new right to specific product categories, e.g. washing machines, dishwashers, refrigerators, vacuum cleaners, servers, mobile phones, aligning this proposal to the previously adopted Ecodesign rules. 
• Comment 3: It is producers' choice whether to repair for free (commercial guarantee) or against payment (with the hope that market pressures will keep the price reasonable). Producers may be discouraged from providing this right for free as it would drive their product prices up, unless there would be a clear and clever way to emphasise them providing free repairs. It will be interesting to observe whether consumers' transactional choices will be impacted by the difference in the provision of repair services.
• Comment 4: For goods produced outside the EU, consumers could still expect repair - either from these producers or other traders within the EU. This, as we know, may be a right that will be difficult to enforce in practice.
• Producers' duty to inform about products they are obliged to repair themselves
• Comment 1: The aim of this new information piece is to ensure consumers know they can turn to producers for repair. However, there is lack of specificity, as to how this information is to be provided to reach consumers. Well, besides required transparency, as usual. This information may be more effective if it was provided by sellers, highlighted at the point of contracting.
• Online matchmaking repair platform to connect consumers with repair points, sellers of refurbished goods in their area
• Comment 1: Article 7 introduces an obligation for the Member States to establish at least one such platform. This means that cross-border buyers may be somewhat inconvenienced, as the platforms are bound to differ in each MS The platforms need to have search functionality for goods, location of repair, repair conditions (time), availability of temporary replacement goods, ancillary services, quality standards, refurbished goods sellers. It should allow directly asking for the ERIF, as well as display of any adopted national repairability labels.
• Comment 2: Repairers may choose whether to register on the platform and MS may place conditions on who can access the repair platform. Repairers may be incentivised to register due to competition on the market, but it is also clear that some of them may not opt in. This will leave consumers with fewer choices and less transparency.
• European Repair Information Form (ERIF) available on request from repairers - to assure transparency to repair conditions and price
• Comment 1: This is supposed to facilitate comparison between different repair providers. It is interesting, however, that the form is not available by default, but only upon consumer request. This limits transparency as many consumers may not know to or take the time to ask for this form, esp. if they are looking for a quick fix of their product's problem.
• Comment 2: Consumers may be asked to pay for costs that repairers incur to provide this form. This is quite baffling, honestly, as repair remains a free remedy pursuant to the CSD, which right this new framework may undermine. Hopefully, the EP will re-write this part of the proposed Article 4 (para 3).
• Comment 3: The benefit of the proposed framework is that the ERIF would remain fixed for 30 days from the day it is provided. Consumers may then take their time comparing various offers available on the repair market.
• European quality standard for repair services - to help identifying repairers of higher quality
• Comment 1: The Commission's plan is to facilitate development of a voluntary European quality standard for repair services (Recital 27). There is then no specific standard in mind yet, which could provide more transparency as to repair quality. In the hopes that one (or more) is adopted soon, Article 7 mentions that any European or national quality standards would need to be searchable on online comparison platforms. 

It is worth it to note the new term proposed by the Directive: 'Repairer' is a natural or legal person who offers a repair service for commercial purposes, incl. independent repair points, producers, sellers.

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

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

 

Facts of the case

 

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

 

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

 

Guarantees in the Consumer Rights Directive

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

 

Proposal on Empowering Consumers for the Green Transition/Part 2

 Last week, I posted a summary of the main changes the Proposed directive for empowering consumers for the green transition would bring to the Unfair Commercial Practices Directive. Today's second part will be devoted to the Consumer Rights Directive. 

Next to preventing "greenwashing" and unsubstantiated claims, the Commission aims that consumers get the right information, that is information that allows to make them more sustainable choices - in particular choosing for more energy efficient, durable and reparable products. 

Six items are added to the pre-contractual information requirements, both for distance and off-premises contracts and for other transactions coming under the scope of the Directive. 

These six additional items concern guarantees, updates and repairs (including some complicated language about telling consumers what they have not received information on).  

–information on the existence and length, of a producer’s commercial guarantee of durability for all types of goods, when this information is made available by the producer; 

–information that no information has been provided by the producer about the existence of a producer’s guarantee of durability for energy-using goods;

–the existence and length of the period during which the producer commits to providing software updates for goods with digital elements;

–the existence and length of the period during which the provider commits to providing software updates for digital content and digital services; 

–the reparability score of the good as applicable under Union law; 

–other repair information, should no reparability score be available at Union level – such as information on the availability of spare parts and a repair manual.

The guarantee information, in particular, needs to be provided also in the context of contracts concluded with electronic means, before the consumer concludes the contract. This includes the possibly confusing "non-information" referred to above ("information that no information has been provided... about the existence of a producer's guarantee of durability"). The proposal explains that, for energy-using goods, providers also need to give information concerning durability when this can be easily and reliably calculated - so the "negative information" above means sellers would have to say something like "we make no promises as to the product's durability". The proposal explains that 

The problem of limited durability contrary to consumer expectations is most relevant for energy-using goods, which are goods that function from an external energy source. Consumers are also most interested in receiving information about the expected durability of this category of goods. For these reasons, only for this category of goods, consumers should be made aware that the information about the existence of a producer’s commercial guarantee of durability of more than two years has not been provided by the producer.

While the reasoning seems plausible, the text is particularly clumsy and could use a clarification/exemplifications.  Here's to the hope that it can be improved in the legislative process - form is substance, even in consumer law :). 

Finally, it is interesting to observe that the reference to an applicable reparability score is, so far, aspirational - no such European scheme exists, despite the warm reception of the French initiative which for the first time established such scoring in Europe (the so-called "indice de réparabilité"). In this respect, a petition has been launched months ago by the Greens, but I could find no official update connecting this reference in the proposal to actual legislative initiatives in the indicated directions. 

This is it for now - while normally information requirement may not be the most exciting of developments, the connected issues here, such as the reparability score and the fight against planned obsolescence all give us reason to think that there will be quite something to report on in the near future. Stay tuned!

Ali Express and European consumer law

Since 2010, AliExpress has been connecting consumers outside of China with Chinese sellers willing to ship their products to their countries. I have no direct experience to share, but a look at the reviews on various comparison websites suggests consumers appreciate the great variety of products offered for very low prices and complain about terms of service, quality and delivery failures. 

Some complaints must have reached the Dutch consumer authorities Autoriteit Consumenten en Markten, which launched a coordinated enforcement action aided by the Dutch consumer association and the European Commission. The result is a commitment by Ali Express to bring its offer in line with European consumer laws, in particular (quoting from the Authority's press release):

• The cooling-off period (the right of withdrawal);

  

  image from pixabay.com

• Legal guarantees: EU rules regarding guarantees must be indicated, and complied with;
• Extra costs: it must be indicated whether any taxes or other fees need to be paid, for example customs duties at the border;
• Sellers: information must be provided about the identity of the seller.
• Ranking: it must be indicated whether payments have been made in order for a seller to appear higher in the search results. 
• General terms and conditions: these no longer violate the relevant laws;
• Complaints: information must be provided about where consumers can turn to if they have any complaints or disputes (no longer the Court of First Instance in Hong Kong, but in the consumer’s own country).  

While many of these past violations are substantive, the enforcement action apparently framed them as a  series of misleading commercial practices - probably because this is the easiest way for an enforcement authority to intervene. 

The above does not necessarily mean that you should now go and fill your home with 1-eur plastic unicorns - emotional spending in the pandemic is still more of a current threat than being unable to litigate in Hong Kong over your shopping misfits -, but in case you do, know that EU consumer rights now ostensibly apply on AliExpress too (when your counterparts is a professional, etc etc). 

Have a great week!

Unfair commercial practices in practice

Last month, we reported on the European Commission taking action to improve the enforcement of the Directive on Unfair Commercial Practices. A recent edition of Euronews presents some examples that illustrate the manner in which such practices, in particular misleading advertising, may be fought.

(As a side note to the article, I would add that in many European legal systems the acquisition of a warranty is not necessarily against consumer interests, insofar as it can provide consumers with additional rights in respect to the European rules on non-conformity. For example, a contractual warranty may relieve consumers of the burden of proof concerning the existence of a defect in the product at the time the contract was concluded, during the full time of the warranty's application. This does of course not mean that sellers are allowed to withhold information on the specific features of legislative guarantees and contractual warranties from consumers.)

Everyone wants a bite of Apple

Yesterday the European Consumer Organisation BEUC published a press release concerning unfair commercial practices conducted by Apple as far as the product guarantees that they issue are concerned. BEUC calls for an immediate stop to these misleading practices (Consumer organisations across EU call on Apple to stop misleading practices on product guarantees).

In December 2011 Apple was fined 900.000 Euro by the Italian Competition Authority. It was proven that Apple prominently advertised that its products come with a one year manufacturer warranty, without clearly indicating consumers' automatic and free-of-cost entitlement to a minimum 2-year guarantee under EU law (unfair commercial practice no. 1). Moreover, objections were made as to the way its 'AppleCare Protection Plan' warranty extension was presented and sold to consumers. Apple appealed from this decision, so the final verdict has not been given yet. However, in the meantime, many consumer groups in other Member States (Belgium, Portugal, Luxembourg, Germany, the Netherlands, Denmark, Poland, Spain, Slovenia and Greece) received complaints from their consumers about similar practices of Apple. Therefore, Apple is being called upon to stop with these practices.

What's the problem? Consumers are given certain guarantees by EU law as to what they may expect of their product, e.g., how long it should work, not need a repair, etc. Some sellers and producers choose not to mention these free, obligatory guarantees and instead present an option to 'consumers' to buy a guarantee from them (at a special price, of course). Consumers may be confused, not known that they are entitled to such guarantees to begin with and decide to purchase a commercial guarantee of the seller/producer, e.g., Apple. This is a clear example of a misleading commercial practice.