Google continued

Google remains at the centre of attention in the current debate on the responsibility of providers of search engine services to sufficiently and adequately protect consumers' personal data. Following the recent ground-breaking CJEU decision in Google Spain (on which we reported earlier this month), the company has now provided users with an online form to request links to specific pages to be removed from search results. Not unproblematically, as is underlined in the introduction to the form, it is up to Google to 'balance the privacy rights of the individual with the public's right to know and distribute information'. It indicates that it will seek the help of data protection authorities and others to refine its approach in the coming months.

European consumer organisation BEUC, in the meantime, poses serious questions concerning Google's dominant position in the European market. In a recent position paper, BEUC voices concerns regarding Google's alleged power to manipulate search results and, thus, distort competition. See also: BEUC - Google internet search case and BEUC - Fair Internet search, remedies in Google case.

Sugar, oh honey, honey...

While sugar can be lovely in many various, tempting forms (since I just finished baking a cake, I know what I'm talking about), with the obesity on the rise worldwide it does not wonder that the authorities are trying to regulate more strictly consumers' intake thereof. On 31st of March BEUC released a report supporting WHO's target of ensuring consumers receive less than 10% of total energy intake per day through sugar. (see WHO opens public consultation on draft sugars guideline) BEUC argues that the limit should be set at 5% to fully benefit consumers, e.g., this could force industry to remove added sugars, which have no nutritional value, from many products. Consumers may often mistakenly believe that the products they buy are sugar free or low on sugars, since labels 'sugar free' or 'without sugar' are currently permitted when sugar was just replaced in a product with juice concentrate, honey or other sweeteners. Often, product label also does not differentiate between pointing out the content of sugars and added sugars. Transparency with regards to these practices could lead to the lowering of sugar levels in products.

Airport charges

Last week the European Commission released a report on Member States' application of EU rules on airport charges (e.g. aircraft landing charges, charges for processing passengers, freight) that is supposed to ensure fair pricing by European airports. Any charges that airlines have to pay for the use of airports are ultimately paid by the passengers within the ticket price. It is estimated that up to 10% of airlines' operating costs cover airport charges. The report shows that large EU airports are now more transparent as to the prices they charge, however, there are still discrepancies across the EU, since airports' policies vary e.g. with respect to the interest in the reduction of the environmental impact of aviation. (Commission reports increased transparency in setting of airport charges, but uneven implementation of rules by the Member States) The Commission intends to promote more uniform application of the Directive 2009/12 by establishing the Thessaloniki Forum of Airport Charges Regulators that will meet for the first time on June 13 in Thessaloniki, Greece.

What does the EP mean to consumers? - BEUC manifesto

While the elections for the European Parliament have started, it may be interesting to take some time to consider what is the Parliament's significance for consumers. In a recent Manifesto, European consumer organisation BEUC highlights the EP's impact on consumers' lives in the past years and sets out a list for future action.

The main areas indicated in the Manifesto are:

- food

- financial services

- consumer rights

- digital rights.

Furthermore, BEUC points its attention to the controversial Transatlantic Trade and Investment Partnership (TTIP), emphasising the importance of transparency in the negotiation process and in dispute resolution.

Monique Goyens, BEUC's Director General adds:

“Consumer policy directly and tangibly impacts on citizens’ daily lives. Over the last 30 years, the EU has written a true success story in this field. It has provided many fundamental protections, better market access, product safety standards, shopping and information rights. Yet most people are unaware that these often originate in ‘Brussels’.

“The new MEPs taking up office will be faced with major challenges such as securing stronger safeguards for financial services, improving the telecoms market, ensuring a neutral internet and restoring consumers’ trust in the food industry after recent scandals.

“The Parliament is still the most trusted EU institution. The incoming MEPs should understand that consumer policy is a way of reaching out to European citizens. They must work to sustain and increase this trust by putting consumer interests central.”

Google as data controller and right to be forgotten - CJEU in Google Spain (C-131/12)

13 May 2014: CJEU judgment in Google Spain (C-131/12)

We have previously discussed the opinion of AG Jääskinenin the Google Spain case, where he argued that an online service provider like Google (providing search engine services) should not be considered to fall under the definition of a data controller, meaning that it would not be obliged to comply with the data protection requirements and control what data is revealed through its search results. (see No forgetting...) Interestingly, in today's judgment the CJEU takes a different stand on these issues.

"According to Google Spain and Google Inc., the activity of search engines cannot be regarded as processing of the data which appear on third parties’ web pages displayed in the list of search results, given that search engines process all the information available on the internet without effecting a selection between personal data and other information. Furthermore, even if that activity must be classified as ‘data processing’, the operator of a search engine cannot be regarded as a ‘controller’ in respect of that processing since it has no knowledge of those data and does not exercise control over the data." (Par 22)

While, Google Spain claimed that it should not be seen as either a data controller or a subject of data protection rules, the CJEU disagreed, mentioning that already previously loading of personal data on a website that was considered as falling under the data processing definition from the Data Protection Directive. (Par. 26)

"Therefore, it must be found that, in exploring the internet automatically, constantly and systematically in search of the information which is published there, the operator of a search engine ‘collects’ such data which it subsequently ‘retrieves’, ‘records’ and ‘organises’ within the framework of its indexing programmes, ‘stores’ on its servers and, as the case may be, ‘discloses’ and ‘makes available’ to its users in the form of lists of search results. As those operations are referred to expressly and unconditionally in Article 2(b) of Directive 95/46, they must be classified as ‘processing’ within the meaning of that provision, regardless of the fact that the operator of the search engine also carries out the same operations in respect of other types of information and does not distinguish between the latter and the personal data." (Par. 28)

This finding cannot be contradicted by a claim that personal data has already been published somewhere else online and not changed by the search engine. (Par. 29, 31) Moreover, since the definition of data controller in the Directive should be broadly understood, the fact that Google may not have control over what's posted on other websites doesn't exclude it from under this definition. (Par. 33-37)

The CJEU also reminds the need to protect both private life and personal data, since these are among the fundamental rights mentioned in the Chapter. (Par. 69) While the data subject may request revision or removal of his personal data from the search engine's results, this request for data protection can clash with the freedom of expression and other people's right to information.

"In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life." (Par. 81)

Keeping this in mind, the CJEU then decides that "the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.". (Par. 88)

Finally, the CJEU recognizes the "right to be forgotten". The data controller, like Google may need to remove data that originally was published lawfully, but which became with time "no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed." (Par. 93)

For the applicability of the Directive to Google's services, please read the judgment further (replies to question 1) where the CJEU debates the matter of, among others, establishment's definition. (Par. 45-61)

This is an interesting decision that might lead to some practical difficulties in its application. Imagine that consumers start now asking Google to remove various links leading to websites containing information about them en masse. How long would Google have to react to these requests/demands, when would it be able to refuse to remove a link from a search engine (who decides whether the content on that website was lawfully published or stopped being relevant etc.?), etc?

How organic must be an organic product? – AG Sharpston in Herbaria Kräuterparadies (C-137/13)

The today’s opinion of AG Sharpston concerned the case of Herbaria Kräuterparadies GmbH who manufactures Blutquick - a food supplement, being a fruit juice mixture with herbal extracts and consisting mainly of organic ingredients, but also of non-organic vitamins and iron. Its label refers to organic production within the meaning of Article 23 of Regulation No 834/2007 and contains a claim: ‘Iron supports the normal formation of red blood cells and haemoglobin’. Herbaria was ordered by the Bavarian authorities to remove the reference to organic farming in the labelling because of the infringement of Article 23(4)(a)(i) of Regulation No 834/2007 in conjunction with Article 19(2)(b) of Regulation No 834/2007 and Article 27(1)(f) of Regulation No 889/2008. The authorities claimed that in order to advertise a product as organic, the minerals and vitamins could only be added to it to the extent that their use was legally required in the foodstuffs in which they were incorporated. There was no such legal requirement for Blutquick as it was not a product covered by the German dietetic foods regulation. According to the German authorities, Blutquick’s introduction to the market was authorised under Regulation No 1924/2006, which does not require foodstuffs and food additives to contain vitamins or to be enriched with ferrous gluconate. As a result, the product could not be labelled, advertised or marketed bearing the reference to organic production regulated by Article 23 of Regulation No 834/2007. Herbaria challenged that decision and the national administrative court referred to the Court of Justice for a preliminary ruling.

AG Sharpston assessed that those provisions are to be interpreted restrictively. In particular, recital 22 in the preamble to Regulation No 834/2007 states that, in order to maintain consumer confidence, exceptions to the requirements applicable to organic production should be strictly limited to justified cases. Therefore, only when there was a direct legal requirement to add a specific non-organic substance in the processing of the food in question, that food may keep on the ‘organic’ label. AG Sharpston pointed out that there is no legal requirement under EU or national law for a fruit juice mixture with herbal extracts sold simply as a foodstuff, whether organic or not, to contain any specified quantity or iron or of any particular vitamin. If for marketing purposes such vitamins or minerals need to be added to justify health claims made on the product that does not create a requirement in the meaning of Art. 27(1)(f):

‘Article 27(1)(f) of Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 is to be interpreted as meaning that the use of the substances referred to is legally required only when a provision of EU law or a provision of national law compatible with EU law directly requires, in respect of the foodstuff in which the substances referred to are to be incorporated, that such substances must be added, or at least lays down a minimum content thereof, before that foodstuff may be placed on the market.

There is no such requirement where the marketing of a foodstuff as a food supplement, with a nutrition or health claim or as a foodstuff for a particular nutritional use would, without the addition of one or more of the substances referred to, tend to mislead the consumer because the foodstuff cannot, in the absence of such substance or substances in sufficient strength, fulfil its stated purpose as a foodstuff or its stated purpose as expressed by the nutrition or health claim. Nor is there such a requirement where a specific nutrition or health claim may be used only for foodstuffs which contain a ‘significant’ amount of the substance or substances referred to.’ (Paragraph 67)

Transparency in energy supply contracts - AG Wahl's opinion in Schulz (C-359/11 and C-400/11)

8 May 2014: AG Wahl's opinion in Schulz (C-359/11 and C-400/11)

During the liberalisation of the energy market, the European legislator tried to introduce a high level of consumer protection. To that end, consumers are supposed to be well-informed by their service providers as to the energy prices, their usage thereof, and they should also be protected from the threat of disconnection. In Germany, gas and electricity suppliers need to provide consumers with a standard rate for energy supply, but it was not quite certain whether they could then unilaterally vary prices. As a result, consumers started bringing up claims for reimbursement of the raised energy prices, claiming that the price increases were unreasonable. (Par. 21) German courts thought that whether the energy suppliers had a right to adjust prices unilaterally would depend on the interpretation of the provisions of the Electricity and Gas Directives, which require that contractual terms and conditions must be transparent. (Par. 1-2) The specific question is whether it is sufficiently transparent for the supplier to inform consumers about the price increase with an adequate notice and providing consumers with a right to terminate contracts. (Par. 30)

AG Wahl believes that the question as to what should be understood as a transparent contractual term and condition should NOT be answered on the grounds of the test established by the Directive on Unfair Contract Terms, in its Art. 3 and 5. (Par. 3) Instead, the AG argues for an independent assessment in light of different objectives pursued by these instruments, especially due to the fact that these energy contracts are not really governed by the freedom of contract principle, since suppliers are limited in their options to refuse to conclude a contract or to terminate it (Par. 34). AG Wahl argues therefore against using the judgment of RWE Vertrieb (see our discussion thereof here) as a guideline to solve the issue at hand (see Par. 38-47 for more details on this point). Still, the AG recognizes that in order to ensure effective level of consumer protection, consumers need to be guaranteed two rights: to terminate the contract and to challenge the reasonableness of the price increase. The second right demands that consumers are given sufficient information "concerning the reason for the price increase and the method of its calculation" (Par. 60). Moreover, the need to disclose such information may in AG's opinion deter some suppliers from unjustifiably increasing energy prices. (Par. 66) As a result, the AG advises the Court to determine that German legislator should oblige energy suppliers to disclose not only what the price adjustment will be, but also the "grounds, preconditions and scope of the price adjustment at the latest by the time that the customer is informed of the adjustment". (Par. 78)

No to unlimited shopping: CJEU in Pelckmans (C-483/12)

Today, the CJEU held in Pelckmans Turnhout II that the Belgian requirement for businesses to observe one day of rest per week cannot be contested on the basis of EU law. 

The facts of the case were simple: Garden centers were kept open seven days per week. Their owners argued that the Belgian provision prescribing one day of rest were contrary to EU law as they discrimintated businesses established outside railway stations, airports, port areas etc, where exceptions to the rule applied. Amongst others, they based their claim on the UCP-Directive. With its judgement of 4 October 2012 (Pelckmans Turnhout I), the CJEU had already decided that the UCP-Directive did not apply to the contested national legislation as the latter 'does not pursue consumer protection objectives'. 

In today's decision, the Court held that the princliples of equality and non-discrimination weren't applying either, the reason for this being that the subject matter didn't have any connections with EU law (paras 17-23). This point of the judgment is highly interesting as it concerns the question of when Member States are implementing EU law. Only then the Charter of Fundamental Rights is adressed to them (Art 51(1) Charter). The outcome is surprising, as the CJEU usually finds ways to 'bring' the referred questions under its jurisdiction. 

The Court recaps its case law stating that the treaty provisions on the free movement of goods do not apply to (non-discriminatory) national rules concerning the closure of shops (para 24). The same is true for the treaty provisions of the freedom to provide services (para 25), which is why the Court didn't have jurisdiction to answer the question referred to it. As a consequence, the Belgian law on the closure of shops is still applicable and shops generally must be kept closed for one day per week!

BEUC on EU Copyright Rules

Recently, the European Consumer Organisation (BEUC) published the position paper it submitted to the Commission's Public Consultation on the Review of EU Copyright Rules. The consultation is part of the Commission's on-going efforts to review and modernise EU copyright rules.

BEUC invites the Comission to take the consumer perspective when revising the Copyright Directive (2001/29/EC). At the moment, there is an exhaustive list of optional exceptions and limitations to right holders' exclusive rights. In the future, users should be granted a clear set of (mandatory) rights instead, including the right to a private copy and rights reflecting fundamental rights and freedoms, such as the rights of quotation and criticism, e.g.. As regards the right to a private copy, BEUC calls for immediate EU action in order to reform the current system of copyright levies (they should be clearly indicated to consumers, see answer to question 67 of the consultation) and launch a reflection as to alternative systems of fair compensation.

Buying digital content is nowadays often effectuated through digital transmission. While re-selling a used CD is undisputedly legal, the same is not clear for the same album purchased via iTunes, e.g.. This is why BEUC calls upon the European Commission to carefully assess the consumer detriment from the existing discrimination between purchases of immaterial copies and of copies on physical media (see answer to question 13). BEUC doesn't propose a solution to the problem; this is as far as the position paper goes. 

Consumers are not only users of digital content but also create it themselves, which is referred to as user-generated content (UGC). They thereby often re-use pre-existing works (e.g. reuse of a song for a familiy video) and upload the result on the internet at little to no financial cost. This raises questions as to the right to property and the freedom of expression. BEUC calls for permitting the use of pre-existing works for UGC and refers to the Canadian rules on UGC as an example (see answers to questions 23 and 58 ff).

BEUC is realistic in only demanding more and not full harmonisation for the revised Copyright Directive (see answer to question 7). Let's wait and see how the Commission proceeds!

Of course, the position paper tackles many more questions, only the most relevant ones for consumers are pointed at here. If you are interested in the topic and read German you can also have a look at the position paper of the Verbraucherzentrale Bundesverband e.V. for the same consultation.

What unfair terms control cannot do: CJEU in Barclays (C-280/13)

While last week we endeavoured to give our readers a timely and informative account of Kásler, which might become a very relevant case in the subject of unfair terms control, on the same day the CJEU also delivered another decision in the field, Barclays Bank SA v Sara Sánchez García, C-280/13.

This case, rather than producing knowledge on the working of unfair terms control under Directive 93/13, reminds us of the limits beyond which the Directive cannot reach. It also shows how, after cases such as Aziz, Spanish courts have tried to use the Directive as a means to address social issues to which national legislation doesn't seem to give an (equitable) answer.

In Barclays, Ms Sánchez and her husband concluded a secured loan- using as security the house they lived in. When they stopped paying the due installments, they ended up with their house being acquired by the bank and a remaining outstanding debt of over 100 000 euros (out of the 153 000 they had borrowed).  

This was made possible by a combination of Spanish legal provisions (allowing inter alia, the vesting of property by the creditor for half of its value were the property auctioned in vain) and a contractual term in favour of the bank, which again was explicitly authorised by Spanish law.

Of such provisions, under which it was impossible to consider Barclay's behaviour as an abuse of rights, the Juzgado de primera instancia of Palma de Mallorca asked the Court of Justice whether they, or their effects, were contrary to the Directive and "the principles of EU law concerning consumer protection".

But "statutory and regulatory provisions" of national law are explicitly excluded from the Directive's scope (see art 1(2) thereof). The Court (para 41) recalls that, as concerns such provisions, "it may legitimately be supposed that the national legislature struck a balance between all the rights and obligations of the parties to certain contracts".

The fact that the Directive, by excluding them from its scope, regulates the "position" of national contractual rules also puts them beyond the reach of general principles (of EU consumer law? para 44), following the prevalence of lex specialis.

In other words, EU law and the CJEU can be of no help to ms Sánchez and other Spanish consumers in a position similar to hers and her husband's.