Free medical assistance abroad not being enforced

The enforcement of European consumer protection rules is still less than ideal in many Member States. One of the benefits that was introduced for the Europeans was the European Health Insurance Card that enables Europeans to access free healthcare in public hospitals across the EU. This measure sounds very consumer-friendly, since, for examples, consumers travelling abroad for holidays and getting injured, while for example cycling or having (too much) fun in waterparks, could then get (more or less) immediate medical assistance without paying for it more than what their holidays cost. Unfortunately, it looks like one of the most popular holiday destinations in Europe - Spain - doesn't comply with the EU rules. Some of the Spanish hospitals refuse to accept the EHIC, which means that tourists still have to pay for medical help and only later may reclaim it from their insurance companies. The European Commission started now the infringement proceedings against Spain by asking Spain to provide more information on this issue. (EU warns Spain over hospitals' rejections of EU health card) In the meantime, European Commission could consider issuing more detailed information on how the EHIC is supposed to work to public hospitals (possibly through Member States), so that travelling Europeans did not have to face having to pay enormous medical bills while abroad. 

Unfair terms, ECJ reaffirms important principles

In two cases delivered today the Court of Justice had the chance to confirm its previous case law and add a new tile to the (ascertained) coverage of Directive 93/13.

To start with this last bit, in Asbeek Brusse and da Man Garabito v Jahani BV, the CJEU clarified that residential tenancy contracts concluded with professional landlords are also covered by the unfair terms directive.

In particular, the fact that the Dutch provision implementing the directive did not use a general term (  to identify the consumer counterpart (the English version is "seller or supplier"), but mentioned the "seller" (verkoper) instead, should not prevent the directive from applying to contracts which involve no sale.

As concerns the duties and prerogatives of courts faced with unfair terms, two important principles have been reaffirmed:

- first, on the ex officio nature of unfair terms control: appellate courts are not exempted from the duty to independently ascertain a term's unfairness under the Directive when they are allowed to act ex-officio to enforce public policy; in other words, the Directive and in particular its rules concerning the non-binding nature of unfair terms are equal to internal public policy rules;

- second, as concerns the consequences of unfairness, an effective implementation of the Directive requires that courts declare the terms wholly unbinding: reducing a penalty instead of considering it as never stipulated would "weaken the dissuasive effect on sellers and suppliers" (par.58) of the European rules.

This extension of ex officio control to second instance cases where the issue has not been raised in the first instance, was also reaffirmed in today's second case, Jőrös v Aegon. 

The most interesting part of this decision, though, concerns jurisdiction. The referring court asked in this case whether, having identified one term as unfair, it should proceed with a declaration of invalidity even though in principle the application of unfair terms control is demanded to a different and higher jurisdiction. 
After having paid lip-service to the Member States competence to "determine which court or tribunal has jurisdictions to hear disputes involving individual rights derived from European Union law" (par 50), the court  states that , once a court has found a term unfair, effective protection requires that the court "must draw all the consequences" from its finding. Thus, notwithstanding the national rules on jurisdiction, the "incompetent" court should still proceed to declare the term invalid and check whether the contract can still exist without that term. 

In both cases, the CJEU and the Advocate General agreed that there was no need to request an Opinion- which underlines how the Court considers the issues settled. On the other hand, the fact that cases keep coming in where the consumer (and her lawyer) did not seem to be aware of her rights under the (legislation implementing the) Directive seems to confirm the need for a judge-driven application of this branch of consumer protection.      

Keeping up to date on European regulatory private law

Would you like to receive more news about developments in European private law, such as e-mail alerts regarding recent judgments of the Court of Justice of the European Union?

Apart from having created a very informative website, the researchers conducting the ERC-funded project 'European Regulatory Private Law' at the European University Institute in Florence offer regular e-mail updates on the topics falling within the scope of their studies.

The project, which is coordinated by Professor Hans Micklitz, involves the study of a normative model that could shape a self-sufficient European private legal order in its interaction with national private law systems. Activities developed within this context include the distribution of quarterly monitoring reports and updates on preliminary references submitted by national courts, opinions rendered by the Advocate-Generals and judgments given by the Court of Justice on the day that they are published in the Official Journal.

In order to subscribe to the ERPL project's newsletter, please send an e-mail to: erpl@eui.eu

Food fit for Europeans

The European Parliament also negotiated a deal with the Council on new labelling rules and content of such consumers products as baby milk, foods for special medical purposes, low-calorie diets food. (see our previous post: Food for thought) What is interesting is that it was decided to leave out special rules on labelling of gluten and lactose information until another time, when consumer information about foodstuffs would be harmonised. Currently, there are no EU-wide rules on information about lactose-free products. (New rules for baby food, special diet food and low-calorie food) The vote on new rules will take place in June.

Trying for better clinical trials

Yesterday, the Public Health Committee endorsed new draft EU rules on clinical trials of new medicines. Since the past years showed a decline in the number of conducted clinical trials in the EU, there is a clear need to change the rules that could have been responsible for this (e.g. the existing Directive 2001/20 is said to unnecessarily increase bureaucracy, overlook the option of non-commercial clinical trials). The new rules are to increase the transparency by making it mandatory to publish detailed summaries in publicly accessible EU database, with full Clinical Study Reports published once a decision on authorisation is complete. There would be a new rule on compensating damages, pursuant to which low-risk clinical trials could be covered by the general compensation system of a health care system. Additional provisions would regulate the ethics of conducting clinical trials on certain patients. (Clinical trials: clearer rules, better protection)

Back to the data protection in the EU

Another controversial subject is the ongoing EU data protection reform. The EDPS just published his annual report for 2012 and warned the European Parliament not to bend to the pressure from industry and third countries to lower the existing level of data protection, but instead to ensure stronger and more effective protection of EU citizens. ('Smart, sustainable, inclusive Europe': only with stronger and more effective data protection)

The issue of personal data protection was also mentioned during the vote at the Culture Committee of the European Parliament on a report regarding advertising in the audiovisual media and the protection of minors. Current rules on advertising do not apply to the internet, therefore, the MEPs argue for an introduction of a new EU framework. The new rules could also protect EU citizens against any automatic profiling. (Towards a common legislative framework for audiovisual media and Internet)

The heat is on... new air passengers rights

Yesterday at the European Parliament the MEPs met with representatives of airlines and air passenger organisations to discuss new proposed rules for air passengers rights as proposed by the European Commission. (101 on air passengers' rights proposal) The Transport Committee's hearing was quite heated, as reported, since views differ drastically as to what air passengers should be entitled to. (Commission proposal needs serious fine-tuning, say MEPs) The Transport Committee will vote on the amended text on 15 November.

Plain packaging of tobacco products

Yesterday the Irish government has approved the drafting of legislation for generic packaging for tobacco, which means that Ireland will be the second country in the world, after Australia, to remove branding from tobacco product packaging. (Ireland's move to implement tobacco plain packaging must resonate in Brussels) 

The European Public Health Alliance (EPHA) just published a new Position Paper on Revision of the Tobacco Products Directive. (see our earlier posts: Smokers beware and Smoke-free EU?) EPHA claims that tobacco packaging is the main link between consumers and manufacturers and recommends to the Commission the adoption of an EU rule on mandatory plain packaging combined with health warnings (text and picture) that should cover 80% of both front and back of tobacco packages. It supports Commission's plans to regulate other nicotine containing products, like e-cigarettes, and argues for the prohibition of online sale of tobacco products as well as the use of all additives, including flavourings.

Financial complaints in the British Isles

The British Financial Ombudsman Service (FOS) published an annual report documenting its work in settling disputes between consumers and financial businesses (with issues ranging from mortgages and payday loans to mobile phone insurance or pet insurance). FOS is a free service for consumers and it's an independent organisation from the financial world. It is interesting to see that compared to the previous year an increase of 92% was noted in tackled cases. This data could suggest that consumers are more aware of their rights and more willing to complain or/and their trust in financial institutions decreased (this could be claimed due to spikes in complaints after financial scandals). On average, one in four initial inquiries went on to become a formal dispute (previous year: one in five) and in nearly half of these formal cases compensation was paid. The most of cases (74%) concerned complaints about the payment protection insurance (PPI) and four of the UK's largest banking groups accounted for 62% of all complaints. This data could point out continued failure of banks and other financial institutions to help consumers get the compensation they are entitled to. (Financial gripes reach 7,000 a day, says ombudsman)

"As levels of confidence in financial services have eroded, it is disappointing that we still haven’t seen any significant improvement in complaints handling. Too many financial businesses still seem unable to sort out problems themselves, without the ombudsman having to get involved." said Natalie Ceeney, chief ombudsman (Stronger consumer voice sees half a million people bring disputes)

Europe's drugs problem

An annual report was published today by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) on the state of the drug problem in Europe in the past year. (New European drug report out today - Europe's drugs problem in 'state of flux') When I compare the summary of this report with the one from the previous year it seems like nothing has changed: less heroin use, less injecting, somewhat less cannabis and cocaine use, BUT  more and more use of synthetic drugs. (see: Healthy week)