Services performed, no right to payment - CJEU in DC (C-97/22)

On May 17th, the CJEU issued a judgment in the German case DC (Rétractation après l’exécution du contrat) (C-97/22) interpreting Article 14 of the Consumer Rights Directive. Article 14 CRD determines consumers' obligations when they withdraw from a contract. This includes releasing consumers from their obligation to pay for the performance of services provided during the withdrawal period, if consumers were not pre-contractually, transparently informed about their obligation to pay in such circumstances, as well as about conditions for using their right of withdrawal (pursuant to Article 6(1)(h) and (j) CRD). 

By Jimmy Nilsson Masth on Unsplash

The consumer in the given case concluded an oral, off-premises contract for the renovation of the electrical installations in their house. There was no information provided on the right to withdrawal at that time. This became an issue when the contract was fully performed and the consumer did not pay the invoice for the provided services. The consumer claimed they did not have to pay, as they subsequently withdrew from the contract and Article 14(4)(a)(i) and (5) CRD released them from their obligation to pay due to the consumer not having received relevant pre-contractual information on their right of withdrawal. German courts posed a question whether CRD's rule that consumers should no bear any costs in such circumstances extends as far as to prevent traders and service providers from asking for any compensation for enhancing consumers' assets, 'in breach of the prohibition of unjust enrichment' (para 19).

The CJEU very summarily confirms that indeed, in order to provide high level of consumer protection aimed at by the CRD, and considering the full harmonisation character of its provisions, the consumer may not be obliged to 'incur costs that are not expressly provided for by that directive.' (para 31). This conclusion also supports the 'fundamental importance which Directive 2011/83 ascribes to the pre-contractual information' (para 32).

The consequence of this judgment is that if service providers breach their pre-contractual information obligations, consumers benefit from this breach regardless whether consumers themselves act in good or bad faith. The CJEU is clear that service providers may not rely in such a case on the principle that any penalties should be proportionate (para 32). This judgment assigns then quite a far-reaching sanction to the breach of pre-contractual information duties. Of course, traders and service providers may easily protect themselves against these sanctions by fulfilling their information obligations. Still, it is curious to have the 'fundamental importance' of pre-contractual information obligations recognised at a time when the critique of their effectiveness as consumer protection measures is at its highest. Is it the Court's intention to try to revive them somewhat?

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.

 

 

Fascinating judgment of CJEU in Tiketa (C-536/20): Intermediaries share responsibility under CRD, Transparency: Cinderella before the ball

The CJEU issued another judgment today in the Tiketa case (C-536/20), which interpreted provisions of the Consumer Rights Directive, focusing on information obligations and the principle of transparency in a pre-pandemic scenario of consumers making expenses to attend events, which they have not been informed had been cancelled. 

A Lithuanian consumer in this case purchased online a ticket to an event from a ticket distributor - Tiketa. Information on the website and on the ticked delivered upon purchase to the consumer let him know that the event organiser was 'Baltic Music', their contact information and that they bear full responsibility for the event. Terms and conditions on the ticket mentioned also that if the event was cancelled, event organiser would be responsible in full for the ticket price. The entitlement to a refund of the ticket price was not contested here, but rather whether consumer could claim further damages and if yes, from whom - event organiser and/or ticket distributor? After all, the consumer made expenses to travel to the event site to only days later receive information about the event's cancellation. 

Traders and persons acting on their behalf

The first question inquired about the application of the notion of a 'trader' from Article 2(2) CRD. Could this notion apply to two subjects in one case scenario: to a trader and a person acting on their behalf, and could it then mean that they both could be held liable by consumers for breach of their obligations? This is a very relevant question in the era of digitalisation, whether we consider digital influencers or online platforms as potentially acting on behalf of traders whose products they promote.

Lithuanian case drew attention to the difference between language versions of the CRD, which could result in intermediaries being considered 'traders' only in some Member States (e.g. France), as others (e.g. Lithuania) recognised a person acting on behalf of a trader as a 'trader' only if they were acting for purposes relating to their own trader, business, craft or profession. Unsurprisingly, the CJEU, following purposive construction rules - supports a broad interpretation of the notion of a 'trader', encompassing also intermediaries (paras 31-32).

More importantly, the CJEU considers that both a trader and an intermediary could be held jointly responsible for the performance of information obligations under the CRD towards consumers, even if they both facilitate provision of the same service. The Court highlights the purpose of CRD as ensuring that consumers are being informed by traders, broadly defined in Article 2(2), rather than by their contractual counterparties. Hence, if a consumer does not receive mandatory information, the intermediary cannot escape liability for breach of CRD provisions by clearly indicating their intermediary position in the transaction (contrarily, to intermediaries liability for non-conformity, pursuant to Wathelet case) (paras 33-34) (see our case note here).

Comment

What does this judgment mean in practice for the online environment is the key question here? A lot of online webshops - distributing products of other traders - could likely be seen as acting on their behalf, and thus would now have either additional due diligence duties, i.e. checking what information these traders share with consumers, or will need to start providing mandatory information themselves. 

What about online platforms and digital influencers? If they were seen as acting on behalf of traders, as well, this information duty would include them, too.

Mandatory information in standard T&Cs

The answer to the second question was long awaited by the academic community: Could online traders provide mandatory information to consumers only by including it in their standard terms and conditions and asking consumers to tick a box that they have accepted these? Was that transparent provision of mandatory information?

Disappointingly, the CJEU does not condemn this standard online market practice. The CJEU focuses its reasoning on the fact that the CRD does not prescribe a method for communication of pre-contractual information to consumers in Article 6(1) or Article 8. The Court distinguishes this situation from a clearly prescribed method for communicating information after the contract was concluded - on a durable medium (para 46).

Comment

What is a missed opportunity by the Court in this case is the elaboration on the principle of transparency and its role in assessing the adequacy and effectiveness of the form in which information is given to consumers. The CJEU does not even mention transparency: whether information provided in standard terms and conditions could be perceived as provided not in a 'clear and comprehensible manner' due to it being less visible or less accessible to consumers? It seems that the answer provided on this point hinged on a technicality, rather than examine broader principles of consumer protection and its aims. Transparency remains a Cinderella before the ball, waiting for her godmother to dust her off.

Full harmonisation of consumer credit rules re-explained - judgment in C-331/18 Pohotovosť

Last Thursday the Court of Justice delivered its judgment in C-331/18 Pohotovost’. The case forms part of the series of Slovak references concerning the interpretation of EU consumer law in the context of credit agreements. It is not to be mistaken with previous disputes involving the same creditor and focusing on Directive 93/13/EEC on unfair terms (especially C-470/12 Pohotovost' and C-168/15 Tomášová - see the relevant posts here and here). Rather, it revolves around disclosure duties laid down in Directive 2008/48/EC on consumer credit, and as such, presents a direct follow-up to the ruling in C-42/15 Home Credit Slovakia.

Facts of the case

The case involved a consumer who questioned his obligations under a credit contract, arguing that the creditor failed to comply with several disclosure duties set out in national rules implementing Directive 2008/48/EC. As we have learnt from Home Credit Slovakia, non-compliance with key disclosure duties may result in the credit being deemed as free of interests and charges - a sanction established among others by Slovak law, which the Court of Justice found to be compatible with EU law. 

Home Credit Slovakia, however, also addressed another important matter - the scope of disclosure duties which Member States can impose on the creditors in the first place. This part of Court's reasoning was not really surprising: the CJEU held that, due to the principle of full harmonisation, to which Directive 2008/48/EC is subject, Member States may not adopt information obligations which are not established in that act. In response to this ruling, the Slovak legislator decided to adjust the national act on consumer credit, among others by removing the duty to break down the payment of the credit in terms of the capital, interest and other charges. The consumer in the present case nevertheless sought to rely on precisely on that duty, arguing that, firstly, the legislative changes undertaken in response to Home Credit Slovakia were too far-reaching and, secondly, they could not be applied to him as the disputed agreement predated the legislative amendment. This faced the referring court with questions about the scope of disclosure duties in Consumer Credit Directive and the limits of its obligation to interpret national rules in conformity with EU law.

Judgment of the Court

The Court of Justice did not consider the dispute to be all that complicated and, in any case, did not find arguments to support the pro-consumer approach considered by the referring court. Firstly, no obligation to break down credit payment was found in Directive 2008/48/EC. As noted by the Court, Article 10(2)(h) refers merely to frequency of payments, Article 10(2)(i) to the right to receive an amortisation table, and Article 10(2)(j) to a statement showing the periods and conditions for the payment of the interest and associated charges, if charges and interest are to be paid without capital amortisation. As a result, the duty relied upon by the consumer in the main proceedings was precluded by the principle of full harmonisation. 

Secondly, the Court recalled that interpretation of EU rules provided in its judgments clarifies and defines the meaning and scope of these rules as they ought to be understood and applied from the time of their entry into force. It follows that a rule must be interpreted according to the CJEU judgment also when the legal relationship, to which it is applied, was established before that judgment. The referring court should, therefore, apply the law applicable at the time when disputed agreement was concluded in conformity with EU law, as interpreted in Home Credit Slovakia. While it is true that the requirement to interpret national rules in conformity with EU law cannot serve as the basis for an interpretation of national law contra legem, a national court cannot consider this to be the case merely because it would have to change the established, national case-law.

Concluding thought

The analysed case is not groundbreaking but it helps to systematise several important pieces of CJEU case law, notably on the principle of full harmonisation and interpretation of national rules in conformity with EU law. As regards the more specific context of consumer credit, the ruling should be read together with the previous judgments in C-76/10 Pohotovosť and C-42/15 Home Credit Slovakia. Some of the parties intervening in the proceedings observed that the consumer could also have relied on inaccurate definition of annual percentage rate - a matter which the previous case law clarified to his advantage. This shows that - regardless of the analysed judgment - Consumer Credit Directive leaves room for important safeguards of consumer interests.

Online chats may be as efficient as phone talks - AG Pitruzzella in Amazon EU (C-649/17)

Yesterday, AG Pitruzzella issued his opinion in the case concerning Amazon EU's compliance with the information obligations imposed on online traders by the Consumer Rights Directive (C-649/17). Namely, the German federation of consumer associations considered Amazon EU as not transparently informing consumers how to contact it: it did not provide a fax number to consumers, and only displayed a phone number of its general helpline after consumers answered a series of questions, incl. questions related to consumers' identity.

Article 6 CRD requires online traders to provide before the conclusion of the contract a number of information, including in point (c): "the geographical address at which the trader is established and the trader’s telephone number, fax number and email address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently ". 

The questions that were asked by the national court were as follows: What does it mean that the phone and fax number and email address are to be conveyed to consumers only 'where available'? Could the Member States required traders to always provide consumers with a phone number, not only when 'where available'? Could the trader use different means of communication to contact the consumer and inform consumers about them instead? E.g. Amazon used online chat services and call-back facilities. And finally does the transparency requirement impose an obligation on online traders to supply this information quickly and efficiently?

Using other means of communication

AG Pitruzzella notices that Article 6(1)(c) CRD introduces two separate obligations. First, the traders needs to inform consumers transparently about the methods of contact that consumers may use, which means that consumers need to 'understand unequivocally' how to communicate with traders. Second, online traders need to ensure that the communication with consumers is quick and efficient, whenever consumers require to contact them (para. 47-53). The particularities of which means of communication are prescribed by the trader are of less relevance than their actual ability to ensure quick and efficient communication between the parties (para. 54, 82, 86). This should suggest that online traders could choose other than prescribed in the CRD means of communication (para. 95):

"Provided that those requirements are met, the choice of what means of communication are actually to be made available is left to the trader, who will have regard, inter alia, to the characteristics of the context in which the negotiation with the consumer takes place"

AG Pitruzzella also compares this situation to the rules on the E-commerce Directive, which also refer to the communication with consumers through a phone line, but where the ECJ previously declared that online traders could be more efficiently often contacted through different means of communication (deutsche internet versicherung, C-2987/07, para. 40).

Using means of communications 'where available'

Following both literal, comparative, systemic and teological interpretation of the term 'where available', AG Pitruzzella concludes that Art. 6(1)(c) does not require traders to always provide for communication means such as a phone, fax and email (para. 67). Thus, even if the online trader actually has a phone line, they do not have to make it available to consumers for communication purposes. Consequently, only if online traders have set up a phone line for the purpose of communicating with consumers they need to provide information on that phone number to consumers (para. 78).

Transparency

AG Pitruzzella examines in details the requirements for transparency from the CRD: clarity and comprehensibility. Clarity, pursuant to him, is a requirement of formal transparency: "which must apply to the outward manner in which the information is put before the consumer, and thus to the way in which the information is read and understood in the environment within which the transaction is carried out". Comprehensibility represent material transparency "the specific content of the information, which must inform the consumer of the legal consequences of his choices" (para. 107). By emphasising both formal and material elements of the transparency test, AG Pitruzzella draws a de facto parallel between the methods of interpretation of the requirements of clarity and comprehensibility and these from the Unfair Contract Terms Directive - of providing plain and intelligible information to consumers. Whilst the CRD does not impose an additional obligation on online traders to provide information within a specific time frame to consumers, making the information difficult to access makes it incomprehensible (para. 109). The principle of transparency requires therefore that consumers have access to information on how to contact online traders in a "simple, efficient and relatively rapid manner" (para. 110).

No additional formal requirements in the Member States

Finally, due to the maximum harmonisation of the CRD, the Member States are of course not allowed to draft additional formal requirements for online traders on how to provide information to consumers and what should the content of that information be. Thus, Germany could not oblige traders to always facilitate a phone line for the purpose of communicating with consumers (para. 114).

This is a very practical interpretation of the provisions of the CRD, which should facilitate sufficient flexibility for online traders to choose which methods of communication suit them best, but also make it future-proof when new means of communication will be created. It does protect traders in cross-border trade, as well, from having to face additional formal requirements set by the Member States. An interesting comment was made on the meaning of transparency, as it goes quite in depth into explaining its requirements and their relation to the duty to inform. Let us see what the Court will take on board from this opinion.

Disclosure duties versus freedom to conduct a business: CJEU partially departs from AG's opinion in C-430/17 Walbusch Walter Busch

Today, the Court of Justice issued a judgment in case C-430/17 Walbusch Walter Busch, concerning the interpretation of certain provisions in the Consumer Rights Directive (2011/83/EC, CRD). The judgment sheds interesting new light on the limits of disclosure duties under the said Directive, balancing consumer rights with the traders' fundamental freedoms.

Facts of the case

As we reported in the previous post about AG's opinion, what led to the dispute in the case at hand was an advertising leaflet distributed by Walbusch in several magazines. The leaflet contained a detachable mail order coupon and, next to the advertising space, presented a quantum of the relevant pre-contractual information - including on the existence of a right of withdrawal. The leaflet did not elaborate on how and under which conditions the right of withdrawal could be exercised - all details being available on the seller's website, whose address was mentioned in the leaflet. 

A German consumer organisation, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV, sought an order to prevent the leaflet's dissemination, complaining that the respective material did not include sufficient information on the right of withdrawal, nor did it include a standard form through which consumers could exercise such right. Both extensive information and the model form must be provided to consumers before the conclusion of a distance contract under Article 6 (h) of the CRD.

Under the same Directive, certain required pre-contractual information may be omitted when the means of distance communication involved in the contract provide for limited time or space. The questions the Court had to answer, in this context, were as follows:

1) how should national courts assess the question whether in a certain case the means used do, indeed, provide for limited space?

2) should it be ascertained that, in a certain communication, space was indeed an issue, what are the consequences? In particular

• does limited space mean that traders can just mention the existence of the right of withdrawal, without including any information on the contents and exercise of that right?
• does limited space mean that the model form through which consumers may (but by no means must) exercise the right of withdrawal can be omitted in this communication?

Judgment of the Court

Limited space

As to the first question, the referring court mentioned two possible approaches: either considering whether in abstracto a certain means of distance communication allowed for limited space, given its nature; or assessing whether the concrete instrument chosen had enough space for providing all information without being deprived of all utility for the trader. In the first case, the "type" of instrument - eg paper vs. mobile phone screen - would count; in the latter, courts would decide on a case-by-case basis. The readers may recall that AG Tanchev sided with the former view.

The CJEU, however, followed a somewhat different path. According to the Court, a limitation of time and space falling within the scope of 8(4) of the Directive can occur "as a result of either the inherent characteristics of the means concerned or limitations arising from the trader’s economic choice relating, in particular, to the duration and space of the marketing communication" (para. 38, cf. para. 62 of AG's opinion). The relevant assessment must be carried out "having regard to all of the technical features of the trader’s marketing communication". This suggests that the trader does not necessarily need to increase the size of a paper leaflet purchased, up to the point he is able to provide consumers with full information required under Article 6(1) of the CRD. An assessment should rather be made with respect to the type (size etc) of the leaflet chosen, without regard, however, to his specific choices on the development and use of the available space and time (para. 39).

The readers may also recall an interesting reference to vulnerable consumers in AG's opinion. Specifically, the Advocate-General argued that "advertising media produced in traditional forms of communications ... are often directed at societal groups, such as older people, who are unaccustomed to going to the internet to acquire access to the supplementary terms of the contract proposed" (para. 73). The Court did not entirely ignore this part of AG's reasoning, but considered it to be of a somewhat different relevance. More specifically, so the Court, an assessment from the point of view of the "average consumer targeted by the communication" should be carried out to establish whether, having regard to the space and time occupied by the communication and the minimum size of the typeface which is appropriate for such (potentially vulnerable) consumers, all information set out in Article 6(1) of the CRD may objectively be displayed.

Should this not be the case, the trader would be required to only disclose in the communication the minimum set of information laid down in Article 8(4) (e.g. about the right to withdraw - see below) and provide consumers with other mandatory information by another source in plain and intelligible language.

Overall, given the need to balance the importance, for consumers, of getting all the relevant information and, for traders, the ability to make use of distance communication mechanisms without disproportionate limitations, the court ruled that

"the assessment of whether, in a specific case, the means of communication allows limited space or time to display the information, in accordance with Article 8(4) of Directive 2011/83, must be carried out having regard to all of the technical features of the trader’s marketing communication; in that regard, it falls to the national court to ascertain whether, having regard to the space and time occupied by the communication and the minimum size of the typeface which is appropriate for the average consumer targeted by that communication, all the information set out in Article 6(1) of that directive may objectively be displayed within that communication."

Limited information duty

The second question concerned the precise scope of the limited disclosure duty. In that regard, Article 8(4) specifies that at least "pre-contractual information regarding ... the right of withdrawal" should be provided in the original communication.

Also in this respect the Court sought a balanced solution (this time in line with the response proposed by the AG in the alternative). In particular, the Court required not only information about the existence of the right to be provided to consumers beforehand, but also about "the conditions, time limit and procedures for exercising the right of withdrawal" (para. 46). The trader, however, should not be required to provide the model withdrawal form in his original communication. In that respect, it suffices to provide that model form by another source, in plain and intelligible language.

Concluding thought

In the commented judgement, the Court clearly tries to find a balance between a high level of consumer protection and the competitiveness of undertakings, or else Articles 38, 11 and 16 of the EU Charter of Fundamental Rights. Less restrictive interpretation from the perspective of the traders (compared to the one proposed by the AG) is not unfounded; also the scope of information about the right to withdraw to be provided to consumers within and outside the original communication is understandable. One could nonetheless argue that still more attention could have been devoted to the needs of vulnerable consumers, particularly as regards the communication of other mandatory information by another source. On the positive side, the Court makes sure that vulnerable consumers receive at least minimum information in a way that they are able to process it. As regards the remaining part of information, the judgment (and the CRD) merely underlines that it's provided elsewhere "in plain and intelligible language". It would not have been a very long stretch, perhaps, to also require such information to be communicated via a means appropriate for the average consumer targeted by the original message.

Candida Leone contributed to this reporting.

Price transparency: new US rules show the way (not)

As information disclosures and transparency are a frequent theme on this blog, our readers may be interested in a recent development in US healthcare.

As of January first, 2019, all hospitals providing health care in the US had to publish a list of all their charges - including for drugs, instruments, ancillary services and so on. The result of this, according to reporting by the New York Times, is that hospitals have published online spreadsheets with thousands of items, described in classically obscure ways. For instance,

 "Baptist Health in Miami helpfully told consumers that an “Embolza Protect 5.5” would cost them $9,818 while a “Visceral selective angio rad” runs a mere $5,538." 

Next to being difficult to understand in and of themselves, the prices shown are in most cases not what individual consumers would actually have to pay - either through insurance or as private customers. 

Bulk disclosure of this kind has been the object of intense criticism for at least a decade. In particular, Omri Ben-Shahar and Carl Schneider have discussed the counterproductive effects of disclosures in healthcare in their book More than you wanted to know: the failure of mandated disclosures.  

The limits of disclosure duties under the CRD (and what "vulnerable consumers" have to do with it) - AG opinion in C-430/17 Walbusch Walter Busch

Last Thursday, Advocate-General Tanchev delivered an opinion in case C-430/17 Walbusch Walter Busch. The opinion is a part of an on-going preliminary reference procedure in which the Court of Justice is asked to clarify the notion of “a means of distance communication which allows limited space or time to display the information” used in Article 8(4) of Directive 2011/83/EU on consumer rights (CRD).

Facts of the case and the key question

The case involved a trader who distributed an advertising leaflet as a supplement to newspapers and magazines. The leaflet did not merely promote trader’s products, but also allowed consumers to submit binding orders through an attached coupon. The existence of the mail order coupon triggered the applicability of Directive 2011/83/EU, which, among others, defines items of information to be communicated to consumers prior to the conclusion of a distance contract. The dispute in the case at hand concerned the exact scope of this disclosure duty; more precisely, whether the trader who distributed the relevant coupon was obliged to provide all information under Article 6(1) of Directive 2011/83/EU on the disputed leaflet/coupon or rather benefited from a milder regime of Article 8(4). The key question was, in other words, whether a coupon attached to an advertising leaflet amounted to “a means of distance communication which allowed limited space or time to display the information”, in which case the trader would only be obliged to provide information regarding the main characteristics of the goods or services, his own identity, the total price, the right of withdrawal, the duration of the contract and, if applicable, the conditions for its termination. Should this be the case, the Court was asked to provide further guidance as regards the reach of the “information about the right of withdrawal” laid down in Article 8(4): 1) whether the relevant obligation covered only the existence or also the conditions of the right to withdraw; and 2) whether it involved a duty to attach a model withdrawal form set out in Annex I B to the Directive.

Two interpretations

During the proceedings two main lines of interpretation emerged. The first one, supported by the plaintiff (Zentrale zur Bekämpfung unlauteren Wettbewerbs, a German self-regulatory organisation promoting fair competition), the Commission and two of the intervening states (Finland and Poland), denied the leaflet in issue the quality of a “means of distance communication which allowed limited space or time to display the information”. Advocates of this reading believed that it is the abstract nature of the means of distance communication (whether or not it was subject to particular technical constraints - this not being the case for conventional paper leaflets), and not the concrete form of communication chosen by the trader (e.g. a smaller or a bigger leaflet), that plays a role in assessing the applicability of Article 8(4). The reading, arguably, provided a higher degree of consumer protection and remained in line with the requirement for exceptions to be interpreted strictly.

Nevertheless, this was not the only reading of the Directive put forward as part of the proceedings. A different interpretation was proposed by Germany, which argued that it was possible to read the CRD in a way that safeguarded the traders’ freedom to advertise without undermining a high level of consumer protection. In order to achieve this result, in assessing the applicability of Article 8(4), preference was to be given to the subjective form of communication chosen by the trader, rather than the objective criteria. Therefore, according to this view, in a situation such as the one in the main proceedings, the trader should only be obliged to include a limited set of pre-contractual information on the leaflet/coupon itself. This would be without prejudice to a high level of consumer protection, which would still be ensured by other provisions of the CRD. Most notably, pursuant to Article 8(4) in fine, the trader would be required to provide the remaining information “in an appropriate way” (e.g. on a website). On top of this, as this reading appears to suggest, pursuant to Article 8(7)(a), the trader would be required to communicate detailed information (including on the right of withdrawal) in a confirmation of the contract delivered on a durable medium, at the latest at the time of delivery.

Opinion of Advocate-General

The Advocate-General was more convinced by the first of the described lines of reasoning and considered that the leaflet in question should fall under the full disclosure duty of Article 6(1) CRD. In forming his opinion the AG relied on several arguments related, among others, to the wording (“technical constraints of certain media” in recital 36; para. 63) and context (if Article 8(7)(a) was to be interpreted as Germany suggests, Article 8(4) would be superfluous; para. 80) of the interpreted act. Perhaps most interesting was, nevertheless, the contrast between Advocate-General's and Germany's views as regards an intepretation which best reflects the CRD's objectives. It is in this context that arguments related to the protection of (vulnerable) consumers, on the one hand, and traders’ freedom to conduct a business, on the other, were raised.

Most notably, the AG Tanchev disagreed with the opinion of Germany that the imposition of a full disclosure duty at the pre-contractual stage would restrict “freedom of traders to conduct a business under Article 16 of the Charter without supplying any advantage to consumers” (para. 47). Instead, he expressed a conviction that such an added value existed, and particularly so with respect to the protection of vulnerable consumers. Considering that the AG's reasoning is a rare (if not the first) occasion when recital 34 of the CRD acquired practical importance, the following two passages of the opinion are worth quoting in full:

73. Finally, as argued by the plaintiff, advertising media produced in traditional forms of communications, as is the case in the main proceedings, are often directed at societal groups, such as older people, who are unaccustomed to going to the internet to acquire access to the supplementary terms of the contract proposed.

74.  Recital 34 of Directive 2011/83 reflects protection of such groups as an aim of that directive. Its second sentence states that ‘the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee.’ This context too points toward rejection of the trader’s selection of design and medium in determining whether ‘a means of distance communication … allows limited space or time to display the information’ under Article 8(4) of Directive 2011/83, binding as it would all societal groups to engage with the internet to secure information traders are bound to provide pursuant to Article 6(1) of Directive 2011/83.

It remains to be seen whether the Court of Justice agrees with the interpretation of its advisor. While there is no doubt that the AG was driven by the objective to afford consumers a high level of protection, the opinion might be criticised for failing to engage with the consumer-oriented arguments supporting an alternative reading. Germany's view that a full disclosure duty at the pre-contractual stage may not be in consumers' best interests, considering that "realistically, it cannot be excluded that many consumers do not keep advertising leaflets after they place their orders" (para. 46), was perhaps too easily dismissed. All in all, resolution of the specific issue under dispute here may not be the most interesting part of the upcoming judgment. What deserves even closer attention are the specifics of the Court's argumentation, especially its position on (the need for and conditions of) the balancing between particular rights and freedoms as well as possible references to recital 34.

Transparency of energy offers

Yesterday we reported about the Commission's study on vulnerability, which, among other things, called for more transparency, so that consumers could easier compare offers and make choices. This week also the BEUC reported on the need for more transparency in one consumer sector - energy.

 

BEUC, EUROGAS and EURELECTRIC issued a joint statement urging energy suppliers to simplify their offers to consumers and defining further the general legal requirement for provision of information in a "clear and comprehensible manner". The recommendation is to focus on key information (product name and main feature; total price and conditions for price changes; contract duration, notice period and conditions for terminations, incl fees and penalties; payment frequency and method options; supplier's contact details) and to deliver it "in a short, easily understandable, prominent and accessible manner". This is interesting, since we can infer that, at least in the eyes of these organisations, clear and comprehensible means concise, free of jargon and provided in one easily accessible place (instead various parts of this disclosure finding themselves in various documents of the supplier) (see BEUC's news report).

Of course, the key information provided to consumers in the above-mentioned way would not replace pre-contractual information duties of the energy providers. Whether the energy sector follows on these recommendations will be evaluated in early 2017.

Salt water as cure for anything - AG Jääsikinen in Neptune Distribution (C-157/14)

9 July 2015: opinion AG Jääsikinen in Neptune Distribution (C-157/14)

Marketing of natural mineral water is specially regulated by the Directive 2009/54 in the EU. It determines the maximum level of sodium that natural mineral waters could contain in order to be advertised as suitable for a low-sodium diet. Due to the special character of these provisions, the question arose whether they take precedence over or rather are complimentary to the Regulation No 1924/2006 on nutrition and health claims. Specifically, while in the Annex of the Regulation the claim on "low sodium/ salt" seems to exclude from its application natural mineral waters, the same exclusion has not been added to the claim on "very low sodium/ salt". The levels of "low sodium/ salt" are the same in both these measures, but the Directive is silent on the "very low sodium/ salt" standard. 

AG Jääsikinen confirms that also producers of natural mineral water while marketing it must follow the guidelines as to what could be labelled as a "very low sodium/ salt" product from the Regulation. Additionally, in the answer to one of the posed question, the AG states that in the calculation of the sodium level all sorts of sodium should be considered (and not only table salt - sodium chloride - as Neptune Distribution has argued for). (Par. 29-33) If this opinion is upheld by the CJEU this will mean that natural mineral water could not be labelled as "very low sodium/ salt" if it contained very little table salt, but the overall sodium level would be high to the e.g. appearance of some baking soda in it (apparently present in certain natural mineral waters). This assessment doesn't surprise in light of the overall aim of protecting consumer health. (Par. 47-48)

0,5l of beer or a chocolate bar?

The Regulation (EU) No 1169/2011 on the provision of food information to consumers, which entered into force in December 2014, exempts producers of alcoholic beverages (containing more than 1,2% by volume of alcohol) from publishing a list of ingredients or a mandatory nutrition declaration on their products (Article 16 Par 4). The Commission was supposed to produce a report on the need to include this information on alcohol labels in December 2014, but this report has so far been delayed (Delayed Commission report on alcohol labelling frustrates beer industry) (partially due to problems with defining "alcopop" drinks, which mix alcohol with soda or juice). In the meantime, according to BEUC, few consumers are e.g. aware that a half litre of beer (5% alcohol) contains approx. 220 calories - the same can be found in a chocolate bar (BEUC demands bolder EU action on alcohol labelling), therefore, alcoholic drinks should not be treated any differently from other food and drink products. 

The Brewers of Europe representing the European beer industry (over 5000 breweries across Europe) took upon themselves a voluntary commitment to present this information to consumers even without the mandatory provisions to this extent (Commission applauds beer industry's move on labelling). One of the issues that may prove problematic in sufficiently informing consumers about alcohol's nutritional values is that the serving size is usually bigger than 100ml that serve as a reference points for most consumers when comparing calories etc. in food and drinks. It could, therefore, be valuable to add also information on a standard serving size of a given product and its nutritional value. Also Diageo, producer of such well-known alcohol brands like Johnnie Walker and Smirnoff, has also last month committed to voluntarily provide nutritional information (per typical serving) for all of its products (Diageo's Nutrition Labels Give Industry Something to Digest). 

Even more than you wanted to know

New additions have been added to the virtual symposium on Ben-Shahar's and Schneider's book on mandatory disclosure. They include contributions by:

VII. Nancy Kim

VIII. Florencia Marotta-Wurgler

IX. Daniel Schwarcz

X. Jeff Sovern

XI.A David Vladeck

More than you wanted to know - a virtual symposium

On ContractsProf Blog, a virtual symposium is currently taking place on the book 'More than you wanted to know' by Omri Ben-Shahar and Carl E. Schneider. 

The book, of which we posted a summary earlier, addresses the problem of lacking effectiveness and potential harmfulness of mandatory disclosure rules in consumer contract law. 

Contributions to the virtual debate so far include an introduction of the authors and blog posts by:

I. Aditi Bagchi

II. Steven Burton

III. Ryan Calo

IV. Robert Hillman

V. Ethan Leib

VI. Lauren Willis

More than you wanted to know

In addition to the previous note: as the Consumer Rights Directive, like most EU consumer law, continues to rely on information duties for sellers ('an informed consumer will make the right choice'), it might be wise to keep in mind the limited effectiveness of disclosure rules. Omri Ben-Shahar (Chicago Law School) and Carl Schneider (University of Michigan) just published an interesting book on the topic. Its summary reads:

'Perhaps no kind of regulation is more common or less useful than mandated disclosure - requiring one party to a transaction to give the other information. It is the iTunes terms you assent to, the doctor's consent form you sign, the pile of papers you get with your mortgage. Reading the terms, the form, and the papers is supposed to equip you to choose your purchase, your treatment, and your loan well. More Than You Wanted to Know surveys the evidence and finds that mandated disclosure rarely works. But how could it? Who reads these disclosures? Who understands them? Who uses them to make better choices?

Omri Ben-Shahar and Carl Schneider put the regulatory problem in human terms. Most people find disclosures complex, obscure, and dull. Most people make choices by stripping information away, not layering it on. Most people find they can safely ignore most disclosures and that they lack the literacy to analyze them anyway. And so many disclosures are mandated that nobody could heed them all. Nor can all this be changed by simpler forms in plainer English, since complex things cannot be made simple by better writing. Furthermore, disclosure is a lawmakers' panacea, so they keep issuing new mandates and expanding old ones, often instead of taking on the hard work of writing regulations with bite.

Timely and provocative, More Than You Wanted to Know takes on the form of regulation we encounter daily and asks why we must encounter it at all.'

See also the publisher's website.

Easy money

As we have mentioned previously the European Commission and the European Parliament have been working hard together in the past years on ensuring that EU citizens had an easier access to a basic bank account (see, e.g.: Basic bank accounts for all). In order to participate in most economic transactions nowadays, consumers need a payment account. Therefore, it was vital to secure such procedures of setting up these accounts that would be transparent and easily manoeuvrable, as well as to make sure that consumers could switch their bank accounts without incurring unreasonable costs - so that the banking market could become more competitive, hopefully offering better terms to consumers. Yesterday the Council and the MEPs agreed on the final version of these rules, which means that upon the vote of the European Parliament in April the new law could become reality. (Parliament and Council agree on basic bank accounts for all) 

As a result of these new provisions, EU citizens could not be denied by a bank access to opening a basic payment account - to which they could pay in and withdraw cash from without fee or for a reasonable fee - in a country where they could show they had an interest of doing so (burden of proof should not be set too high). Fees' information should be standardized and transparent, with at least one independent website per country offering clear comparisons of fees charged by various banks. It remains, though, to be seen what form this standardized information will take and what its effects (its level of transparency) will be.

Airlines may freely determine checked-in luggage costs - AG Bot in Vueling Airlines (C-487/12)

After two weeks of holidays with limited internet access I have a bit of a catching up to do with the recent consumer law developments. I hope that our readers stayed up to date during my absence, but just in case this week posts will gradually aim at updating also your knowledge thereof. Starting with some CJEU developments...

23 January 2014: opinion of AG Bot in case Vueling Airlines (C-487/12)

Spanish law prohibits air carriers from charging for checking in passengers' baggage as an optional price supplement ("The carrier is required to carry passengers’ baggage with them, subject to weight limits, irrespective of the number of items, and size limits established by regulation, as part of the price of the ticket."). The CJEU was asked whether such a national provision was compatible with Art. 22 Regulation No. 1008/2008 which states that: "(...) Community air carriers and, on the basis of reciprocity, air carriers of third countries shall freely set air fares and air rates for intra-Community air services.". The issue arose due to Vueling adding a surcharge of EUR 40 to the base price of airlines tickets (EUR 241.48) bought by Ms Villegas when she checked in two pieces of luggage online. AG Bot considers Spanish law to be contrary to EU law on this matter.

AG Bot acknowledges that this question arose due to the increased operation on the air carriers market of low-cost carriers. Vueling, as one of them, offers its customers to conclude carriage contracts on various, customized conditions - in the basic option consumers would travel at the lowest price but any checked in baggage would have to be paid extra, while upgraded options are more expensive but cover travel with one checked in baggage within the ticket's price. (Par. 18-21) The question is whether consumer protection does not require the final price given to consumers to include all likely to be made costs, like the cost of the checked-in luggage? Or whether it should be left to the airlines to regulate their price structures as they want. 

AG Bot reminds that the EU legislatures was meant to liberalise the airline market and allow them complete freedom in setting 'air fares'. (Par. 33-34) Consumer protection interests only required that consumers were clearly and in detail informed about the service provided within the price, in order to facilitate comparison of various offers. (Par. 37) AG Bot argues that checked-in baggage requires processing, sorting, storing and delivery thereof by the airlines - costs of which services should be able to be redressed separately from a consumer. (Par. 49-50) Offering an optional price supplement for processing checked-in baggage is seen as also allowing the airlines to offer consumers such prices that are proportional to the services they requested. (Par. 53) If that freedom was not granted to the airlines, then consumers would be faced with having to pay raised ticket prices even if they were willing to travel only with a hand luggage. (Par. 58) Since hand-baggage remains the sole responsibility of consumers and forms part of their personal dignity (as their most precious and indispensable items), the airlines have to refrain from charging for carry-on baggage though. (Par. 54-55) 

AG Bot mentions that if the Court is of a different view as to the payment for checked-in baggage: "This would require the Court to define, for the 28 Member States of the European Union, the size and maximum allowed weight of baggage, taking into account the safety requirements for the type of aircraft likely to be used. It is clear, however, that such a decision aimed at defining the technical rules for checking in baggage goes beyond the powers and remit of the Court. ". (Par. 57) Quite a discouragement for the Court to take a different opinion in the case...

On the one hand the argument of consumers being able to pay less if they decide to travel with hand luggage only is sound and entices to see the cost of checked-in luggage as not forming part of the ticket price. On the other hand, it is hard to talk about ticket prices transparency if certain airlines would include checked-in luggage price in the base ticket price and some others would not do so - since the comparison websites do not always clearly indicate these differences. Maybe the cost of the checked-in luggage should be excluded from the calculation of ticket price for all airlines?

Scope of required disclosure when buying securities - AG Sharpston in Timmel (C-359/12)

26 November 2013: AG Sharpston opinion in case Timmel (C-359/12)

It's a cliche but financial services are often complex and consumers often require more strict protection measures with respect to such services. Currently, many consumer protection measures rely on information duties (despite raising criticism of this instrument it is still predominant) and what kind of information is to be disclosed and in what form often is subject to lengthy disputes. In the Timmel case AG Sharpston gave its opinion on the mandatory information that needs to be revealed in a 'prospectus' to the public interested in purchasing securities. 

The Prospectus Directive requires such information to be conveyed that enables investors to make an informed assessment of the financial position of the issuer and of the rights attaching to the securities in question. Regulation No 809/2004 sets detailed requirements for the content and format in which information should be presented in a prospectus. Interestingly, while the Directive mentions certain information as mandatory, the Regulation allows the issuer of a prospectus to omit such 'required' information if it is not known at the time when a base prospectus is approved and can only be determined at the time of issue (Par. 38). Mr Timmel subscribed for Dragon FX Grant securities (drawn up by Lehman Brothers Treasury Co.), for which certain required information was omitted from the base prospectus and from a supplement to it. He argued that he had a right to withdraw from the contract due to not valid publication of the securities in question, which right of withdrawal is granted to consumer-investors (private persons acting on their own account, not on behalf of a company). The AG Sharpston considers the supplement to the prospectus as having a function of correcting any material mistakes or inaccuracies as well as revealing significant new factors (Par. 41). If the required information became known to the issuer after the prospectus has been published but would not materially influence the assessment of securities, it does not have to be revealed in the supplement but may be added to the final terms instead (Par. 51).

Not only the base prospectus or its supplements did not contain required information, but they were also not made publicly available. The documents could only be found and retrieved for awhile on the homepage of the Luxembourg Stock Exchange, following a lengthy and complicated registration process, upon which only two documents per month could be consulted free of charge. This contradicts according to the AG Sharpston the requirements of Art. 29 Regulation, pursuant to which a base prospectus should be easily accessible to an investor when entering the website (Par. 68).

Additionally, the AG clarifies the issue as to where the base prospectus must be made available: at the registered office of the issuer and at the offices of the financial intermediaries (Par. 84).

Assuring informed choice in life assurance contracts - EFTA court (E-11/12)

On 13 June this year the EFTA court gave a judgment in the case Koch, Hummel and Müller v. Swiss Life (E-11/12) which concerned the duty to inform and the duty to advice in life assurance contracts, as regulated by the Consolidated Life Assurance Directive 2002/83/EC and the Insurance Mediation Directive 2002/92/EC. 

The case was referred to the EFTA court from the Principality of Liechtenstein where the defendant, a life assurance company Swiss Life was registered. The plaintiffs were German and Austrian national residents who independently concluded unit-linked life assurances with Swiss Life. In all cases, the parties agreed on a type of investment "as per the attached investment strategy". The plaintiffs paid assurance premiums which were then invested by Swiss Life as cover funds, in accordance with investment strategies. Unfortunately, these investments have not been successful which led the plaintiffs to claim damages from Swiss Life, mainly on the grounds that they were not able to estimate the level of risk involved in the investment, and that there was no transparency in the products' structure. It was established that Swiss Life did not inform the plaintiffs about the relevant investment products, but it claimed that it were the plaintiffs who put a request for these particular investment strategies to be included in their contract (Par. 36).

The relevant legal questions were: whether Swiss Life had a duty to advice the plaintiffs on investment strategies and whether there was a duty to inform about the unit-linked assurance products and their risks?

The EFTA court considers that Life Assurance Directive intends to protect consumers by granting them a right to informed choice (Par. 62). Life assurance contracts are perceived by the court as generally complex and detailed, which may make them difficult to understand for the average consumer (reasonably well informed and reasonably observant and circumspect). Additionally, such contracts often bring about serious financial consequences for consumers over a long period of time. Both these factors convince the court that transparent information on these contracts is crucial to consumers (Par. 63). The consumer must, therefore, "be provided with whatever information is necessary to enable him to choose the contract which best meets his requirements" and the Directive's information requirements should only be seen as a minimum standard that needs to be fulfilled (Par. 64-65). However, the Directive does not impose a duty to advice on the assurance company (Par. 69, 72) and instead trusts in the ability of an average consumer to compare essential elements of the contract as long as he is provided with clear and sufficient information (Par. 70). Notwithstanding the above-mentioned, national legislators could impose such a duty to advice on assurance companies (Par. 75).

Since the performance of the duty to inform is seen as crucial to guarantee consumer protection, it does not surprise that consumers do not need to look themselves for information and instead may await this information being given to them by service providers. The EFTA court states that the relevant information on the units to which benefits are linked should be given to consumers in writing prior to contract's conclusion, and it may not be required of them to use a search engine to find and access the necessary information (in compliance with the Content Services, CJEU case) (Par. 96). The information should be clear, complete and accurate and allow consumers to define the units to which the benefits are linked, and to describe the nature of the underlying assets (Par. 102). At the same time, it does not matter who provides the consumer with the relevant information - the assurance company or an insurance intermediary (Par. 110). What is important is that the consumer gets necessary information and not who he gets it from.