How to say 'I like you' in 24 languages, and why a European consumer lawyer might care

Today, 26th September, the European Day of Languages is celebrated. The initiative was launched in 2001 by the Council of Europe and the European Union to celebrate Europe's linguistic diversity, with its 24 official languages, about 60 regional and minority languages, and more than 175 migrant languages. More information on events organised in celebration of this day (such as mini-courses on European languages) is available on the Council of Europe's website and in today's European Commission newsletter.

Eurostat, furthermore, published the following data:

'European Day of Languages - Two-thirds of working age adults in the EU28 in 2011 state they know a foreign language - English studied as a foreign language by 94% of upper secondary pupils.

In the EU28 in 2011, 83% of pupils at primary & lower secondary level and 94% of those in upper secondary level general programmes were studying English as a foreign language. The second most commonly studied foreign language at both primary & lower secondary level and upper secondary level was French (19% of pupils in primary & lower secondary level and 23% in upper secondary), followed by German (9% and 21%) and Spanish (6% and 18%). The importance of English as a foreign language in the EU is also confirmed amongst working age adults. In the EU28, English was declared to be the best-known foreign language in 2011 amongst the population aged 25 to 64. Among those stating English to be their best-known foreign language, 20% responded that they spoke it at a proficient level, 35% at a good level and 45% at a fair level. Considering all languages, two-thirds of the total population aged 25-64 stated they knew at least one foreign language.'

Why languages are important for European consumer law is perhaps best illustrated by the case law of the Court of Justice of the EU. A recent example concerns the Court's judgment in Asbeek Brusse v. Jahani (discussed by Candida on this blog), in which the comparison of different language versions of the Unfair Terms Directive was decisive for answering a preliminary question on the Directive's scope:

'25 There is, however, a degree of discrepancy between the various language versions of that provision. Thus, the Dutch version of Article 1(1) of the directive states that the purpose of the latter is to approximate the national provisions relating to unfair terms in contracts concluded between a ‘seller’ (‘verkoper’) and a consumer. The other language versions of that provision use, for their part, an expression which is wider in scope to designate the other party to the contract with the consumer. The French version of Article 1(1) of the directive refers to contracts concluded between a ‘professionnel’ and a consumer. That wider approach is found in the Spanish version (‘profesional’), the Danish version (‘erhvervsdrivende’), the German version (‘Gewerbetreibender’), the Greek version (‘επαγγελματίας’), the Italian version (‘professionista’) and the Portuguese version (‘profissional’). The English version uses the terms ‘seller or supplier’.

26 It is settled case‑law that the need for uniform application and, accordingly, for uniform interpretation of a European Union measure makes it impossible to consider one version of the text in isolation, but requires that that measure be interpreted on the basis of both the real intention of its author and the aim that the latter seeks to achieve, in the light, in particular, of the versions in all other official languages (see, inter alia, Case C‑569/08 Internetportal und Marketing [2010] ECR I‑4871, paragraph 35, and Case C‑52/10 Eleftheri tileorasi and Giannikos [2011] ECR I‑4973, paragraph 23).

27 It must be observed in this connection that the term ‘verkoper’, used in the Dutch version, is defined in Article 2(c) of the directive in the same way as in the other language versions, as designating ‘any natural or legal person who … is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned’.

28 It thus appears that, beyond the term used to designate the other party to the contract with the consumer, the legislature’s intention was not to restrict the scope of the directive solely to contracts concluded between a seller and a consumer.'

For more on the topic of languages and the law, please refer also to the Amsterdam Circle for Law & Language.

Slow train - CJEU judgment in Case C-509/11 ÖBB-Personenverkehr

Today, the Court of Justice of the EU delivered its judgment in Case C-509/11 ÖBB-Personenverkehr AG. The case concerned the general terms and conditions used by the Austrian railways company, ÖBB, for transport contracts with railway passengers. These terms and conditions included provisions on compensation of the ticket price in case of delay. According to the national Rail Network Control Commission, ÖBB's terms and conditions were not in compliance with EU Regulation No 1371/2007 insofar as they excluded compensation in the following cases:

'–      where there is fault on the part of the passenger,

–      where a third party behaves in a manner which the carrier, in spite of having taken the care required in the particular circumstances of the case, could not avoid and the consequences of which he was unable to prevent,

–      in the event of circumstances not connected with the operation of the railway arising which the carrier, in spite of having taken the care required in the particular circumstances of the case, could not avoid and the consequences of which he was unable to prevent,

–      where services are restricted as a result of strikes, provided that passengers were adequately informed of these,

–      if the delay results from transport services not included in the transport contract.'

The CJEU was presented with the preliminary question whether, under EU law, a railway company may exclude its obligation to pay compensation for the ticket price in case of force majeure. In particular, the question was raised if carriers may rely on rules of international law which exempt them from liability in such cases.

In accordance with AG Jääskinen's opinion in the case, the Court holds that rail passengers are entitled to a partial refund of the price of their train ticket in the event of significant delay, even where that delay is attributable to force majeure. Rules of international law do not alter this, since these provisions are not applicable in the context of the liability regime established by the EU Regulation. Where the applicable rules of international law seek to reimburse passengers for damage or loss suffered as a result of the delay, the Regulation's purpose is to compensate passengers for the consideration provided for a service which was not supplied in accordance with the transport contract.

Equal property rights for registered partners and married couples

Another vote took place this month at the European Parliament with regard to new matrimonial property rules for international couples. (Simplifying property law for international couples) On 10 September the MEPs adopted a new resolution, recommending that the drafted legislation included the same property rights for registered partners as for married couples in case they separate and need to divide their properties. Original proposal of the Commission would enable married couples to choose which law should be applicable to their joint property (as long as there was a close connection), while registered partners would still be forced to accept the application of the law of the member state in which their partnership was registered. The resolution grants the same rights to registered partners as to married couples, however, their choice of law would not be valid if they choose for a law of a country not recognising registered partnerships. (MEPs call for equal property rights for registered partners and married couples)

More support of public access to clinical trials data

A short update to our posts (last one: Who's keeping the score?...) on the dispute between the European Medicines Agency (EMA) and two major pharmaceutical companies (AbbVie and InterMune) regarding transparency and sharing of clinical trials data: the European Consumer Organisation (BEUC) has been accepted to intervene on the EMA's side in the procedures in front of the Court of Justice. (Consumers to support public access to clinical trials data in Court)

Origin labelling

In 2011 the European institutions adopted the Regulation 1169/2011 on the provision of food information to consumers. The new rules on food labelling are supposed to be applied only as of December 2014 (or as of December 2016 when nutrition declarations are concerned), but since it takes awhile for the industry to change its packaging and marketing strategies we should start hearing more and more about the implementation' problems of these rules soon. Indeed, this week UK's Farmers Guardian reported on British worries related to the labelling of meat products, e.g., that the new labelling won't account for the animal's country of birth but only country of reading and slaughter, which means that in case of a Dutch cow or pig being brought to the UK a few months before slaughter, the label could just identify it as a British cow. (New EU meat labelling laws 'could mislead consumers') Our readers may be interested in the Q&A document from January this year, where an expert Working Group answered certain questions as to what is expected from the industry sector and how new rules would impact consumer protection.

Hazardous resolution

On 10th of September the European Parliament adopted a resolution "Online gambling in the internal market" calling upon the European Commission to better regulate online gambling in the EU. As we have mentioned before, online gambling is one of the fastest growing services in the EU. (see post: Easy money) Currently, online gambling' rules differ across the EU, since many European countries have different approaches to gambling in general due to morality issues and different ideas on what's needed to protect public order. It is not quite clear to me what measures the EP expects the Commission to take, since on one hand they argue for more harmonisation of online gambling in the internal market, but on the other they insist that Member States should be able to uphold aforementioned national barriers to market entry. What could be optimised, according to the MEPs, is a good exchange of information among the Member States that could contribute to the European list of banned operators (black list) or licensed operators (white list), European codes of conduct, uniform tax rates, and uniform recognition rules so that operators recognised in one Member States could conduct business in other Member States, as well (unless these specific, national market barriers would oppose that?). Another curious point is the call for a European ban of certain types of wagers that pursuant to the MEPs are more prone to lead to fixing risks in sports, e.g., live sports betting, wagers such as awarding yellow cards, throw-ins, corner kicks etc.

Diligence cannot undo unfairness - CJEU judgment in Case C-435/11 CHS Tour Services

This morning, the Court of Justice of the EU handed down its judgment in the CHS Tour Services case. For a summary of the facts of the case and the Advocate General's opinion, I refer to Bram's earlier post on this blog ('Opinion AG Wahl in CHS Tour Services on Unfair Commercial Practices'). The question referred to the CJEU is whether the requirement of 'professional diligence', laid down in Article 5(2)(a) of the Unfair Commercial Practices Directive, should be understood as an independent condition for assessing the misleading nature of certain commercial practices (in this case: a tour operator's exclusivity statement in brochures for skiing lessons and snow holidays for groups of schoolchildren).

The Court observes that:

'(...) Article 5(4) of the directive categorises commercial practices as unfair where it is established they are misleading or aggressive ‘as set out in’, Articles 6 and 7 and Articles 8 and 9, respectively, of that directive, that expression suggesting that the determination of whether the practice concerned is misleading or aggressive depends only on the assessment of the practice in the light of the criteria set out in those latter articles alone. That interpretation is supported by the fact that Article 5(4) does not contain any reference to the more general criteria set out in Article 5(2).' (para. 39)

'Furthermore, Article 5(4) begins with the words ‘[i]n particular’ and recital 13 in the preamble to the Unfair Commercial Practices Directive states that ‘[t]he … general prohibition established by this Directive … is elaborated by rules on the two types of commercial practices which are by far the most common, namely misleading commercial practices and aggressive commercial practices’. It follows that the basic rule of that directive, that unfair commercial practices are to be prohibited, as laid down in Article 5(1) of the directive, is given effect and concrete expression by more specific provisions with a view to due account’s being taken of the risk posed to consumers by the two cases that arise most frequently, namely, misleading commercial practices and aggressive commercial practices.' (para. 40)

Moreover:

'As regards, more particularly, Article 6(1) of the Unfair Commercial Practices Directive, at issue in the case in the main proceedings, it is to be stressed that, in accordance with the wording of that provision, the misleading nature of a commercial practice derives solely from the fact that it is untruthful inasmuch as it contains false information or that, generally, it is likely to deceive the average consumer in relation to, inter alia, the nature or main characteristics of a product or a service and that, therefore, it is likely to cause that consumer to take a ‘transactional’ decision that he would not have taken if there had been no such practice. When those features are to be found, the practice is to ‘be regarded’ as misleading and, therefore, unfair pursuant to Article 5(4) of that directive, and it must be prohibited in accordance with Article 5(1).' (para. 42)

'(...) having regard both to the wording and to the structure of Articles 5 and 6(1) of that directive, and to its general scheme, a commercial practice must be regarded as ‘misleading’ within the meaning of the second of those provisions if the criteria set out there are satisfied, and it is not necessary to determine whether the condition of that practice’s being contrary to the requirements of professional diligence, laid down in Article 5(2)(a) of that directive, is also met.' (para. 45)

'The interpretation above is the only one capable of preserving the effectiveness of the specific rules laid down in Articles 6 to 9 of the Unfair Commercial Practices Directive. Indeed, if the conditions for the application of those articles were identical to those set out in Article 5(2) of the directive, those provisions would have no practical significance, even though they are intended to protect the consumer from the most common unfair commercial practices (see paragraph 40 of this judgment).' (para. 46)

Accordingly, the Court holds that:

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that, if a commercial practice satisfies all the criteria specified in Article 6(1) of that directive for being categorised as a misleading practice in relation to the consumer, it is not necessary to determine whether such a practice is also contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the directive in order for it legitimately to be regarded as unfair and, therefore, prohibited in accordance with Article 5(1) of the directive.

Capita Civilologie

Today at the Academiegebouw in Utrecht a promotion of the book "Capita Civilologie. Handboek empirie en privaatrecht" took place. 'Civilologie' is a new term describing research that is not limited to pure, traditional, dogmatic legal scholarship but includes insights from other disciplines. The book is worth mentioning here for many reasons, not the least since two of this blog's authors have written a chapter each for this book. If you read in Dutch you should look up Bram's chapter (Chapter 6) evaluating the 'average consumer' standard in misleading commercial practices and Joasia's chapter (Chapter 10) assessing the right of withdrawal in distance selling contracts. The book is published by Boom Juridische Uitgevers and edited by W.H. van Boom, I. Giesen and A.J. Verheij. For any of our readers interested in how insights from empirical studies could be included in legal scholarship, it is worth to look into these 1050 pages describing various forms and areas of such research. This book is a second edition of the previous book "Gedrag en Privaatrecht" with some new chapters and some updated chapters from the first edition and many of its parts describe various consumer behaviour and consumer law issues.

Legal highs

Yesterday the European Commission presented a new package proposal with respect to regulating 'legal highs' (new psychoactive substances used as alternatives to illicit drugs). (see our previous post on the increased drugs problem in the EU: Europe's drug problem) The package includes a proposal for a Regulation on new psychoactive substances and a proposal for a Directive amending the Framework Decision 2004/757/JHA on illicit drug trafficking. The Regulation would enable information exchange on, risk assessment of and restriction measures applied to harmful new psychoactive substances. The Directive would facilitate easier and faster notification and registration of new psychoactive substances that pose severe risks, so that the criminal law provisions on illicit drugs could apply to them. (FAQ: tackling psychoactive substances across Europe)

The European Commission responded thus to the growing problem of increased consumption of new psychoactive substances in Europe (their number tripled between 2009 and 2012), which due to online trade easily cross borders in the EU. (European Commission takes decisive action against legal highs) The proposed changes will allow for a ban on a substance to be issued within 10 months (instead of current 2 years). In particularly grave circumstances it will be possible to withdraw substances immediately from the market for one year. Moreover, the European approach to such substances would be more proportional, since the current binary evaluation (either full market restrictions and criminal sanctions apply or not) would be toned with a graduated approach, with the severity of sanctions depending on the substance's danger level.

Bad MEPs

As Chantal mentioned already, the European Parliament's JURI Committee approved of the CESL's proposal yesterday. BEUC's reaction to this news was instantaneous and unsurprising. In a statement from yesterday BEUC reproached MEPs as making a bad decision for European consumers, since the 'optional' character of the CESL is seen as increasing complexity for consumers, legal uncertainty and allowing businesses to circumvent national protection measures, therefore, reducing consumer protection. This is an unsurprising result, since even in the progress chart mentioned in the previous post today the European Commission's proposal on the CESL was evaluated as a 'bad' one for consumer protection.

"We hope that MEPs and national governments will stand firm in ensuring just before the Parliamentary elections that the thus far successful history of EU consumer legislation is not devalued. Important national rights should not be undermined." said Ursula Pachl, Deputy Director General of The European Consumer Organisation. (BEUC Statement on JURI committee CESL vote)