EDPS Opinion on AI Act proposal

The proposal for the Artificial Intelligence Act has caused a lot of heated discussion as it reaches its final stage. Recently, the European Data Protection Supervisor (EDPS) issued an opinion on the current version of the AI Act proposal*, pointing out several legal uncertainties from a data protection perspective. This is the second EDPS opinion about the forthcoming AI Act, following one issued jointly with the European Data Protection Board shortly after the proposal was revealed.

Photo by julien Tromeur on Unsplash

The EDPS takes a tough stance as regards some of the solutions envisaged in the proposal. For instance, the authority once again emphasized that classifying several uses of AI as "high risk" is not enough in cases where such uses pose unacceptable risks to fundamental rights (see para. 7 of the opinion). This includes a.o.:

• any use of AI to carry out any type of "social scoring";
• any use of AI for automated recognition of human features in publicly accessible spaces, such as of faces, gait, fingerprints, DNA, voice, keystrokes and other biometric or behavioural signals;
• the use of AI to infer emotions of a natural person except for certain well-specified use-cases, namely for health or research purposes;
• any use of AI systems categorising individuals from biometrics into clusters according to ethnicity, gender, political or sexual orientation, or other grounds for discrimination prohibited under Article 21 of the EU Charter of Fundamental Rights.

According to the EDPS, such uses should be prohibited as they are intrusive and affect human dignity.

The EDPS also notes that the AI Act proposal exempts operators of high-risk AI systems already on the market or in use before the AI Act's applicability, except in cases when these systems are subject to significant changes in their design or purpose or in case of "substantial modifications" (para. 12 of the opinion, see also Article 83(2) of the AI Act proposal). However, the EDPS finds this solution unclear, leading to legal uncertainty and some high-risk AI systems never falling within the scope of the AI Act. The EDPS recommends removing this exemption and applying the AI Act to existing high-risk AI systems on the date of its applicability.

What is more, the EDPS suggests that the notion of AI "providers" should be further clarified, and probably (explicitly?) include AI operators who retrain pre-trained AI systems. Although training is a fundamental part of AI development, the current proposal does not clearly state whether activities such as retraining or continuous training should be considered as part of AI system 'development'. As a result, it is uncertain whether operators taking part in such activities could be assigned the status of "providers" of AI systems (para. 15-19 of the opinion). 

Finally, the authority shared specific recommendations on how to clarify the proposal's provisions on EDPS roles and tasks as a notified body, market surveillance authority and competent authority for the supervision of the development, provision or use of AI systems by EU institutions, bodies, offices and agencies (para. 29 et seq.).

* Updated information on the legislative process you can find here.

Addictive design of digital services

Today the Committee on the Internal Market and Consumer Protection (IMCO) of the European Parliament adopted the draft report on Addictive design of online services and consumer protection in the EU single market (file to the procedure is here). This times nicely with the increased attention give to addictive online design by the European Commission, which intends to devote one of its two panels to this topic at the forthcoming 3rd Annual Digital Consumer Event (held on 30 November - more information and agenda is here). 

By Rodion Kutsaiev on Unsplash

The report draws attention to psychological vulnerabilities that 'certain' platforms and tech companies exploit online. The main concerns are about addictive, behavioural and manipulative design that maximises the frequency and duration of user visits. This is seen as leading to both non-material and material harm. Thus IMCO calls on the European Commission to conduct more evaluation whether new regulation could help 'close existing regulatory gaps with regard to consumer vulnerabilities, dark patterns and addictive features of digital services'. This follows from the assessment that existing measures (Digital Services Act and AI Act, but also Unfair Commercial Practices Directive) are insufficient to address these issues. As examples of dark patterns that current legislation would not consider as unfair the report mentions: infinite scroll, default auto play function, constant push notifications, read receipt notifications. 

Interestingly, in the report: 

• Point 3 - mentions the need to re-evaluate the main current notions of EU consumer law from the perspective of digital age, such as 'consumer', 'vulnerable consumer' and 'trader'. 
• Point 4 - draws attention to the limited function of transparency to fight deceptive design and calls for urgent need to assess whether certain practices should not be blacklisted under the UCPD (rather than transparently disclosed). 
• Point 6 - argues for (amongst others): 
• the integration of the concept of digital asymmetry into the UCPD; 
• reversal of the burden of proof for practices presumed to be addictive; 
• an obligation to ethically design digital services, which would be necessary to comply with professional diligence obligation.
• Point 7 - concerns the need to re-evaluate addictive and mental health effects of interaction-based recommender systems, incl. hyper-personalised systems. Overall, this point calls for the re-assessment of the desirability of online personalisation, and replacing recommender systems based on it with such that are based on chronological order or that give users more control.
• Point 8 - proposes introduction of the digital 'right not to be disturbed' by 'turning all attention-seeking features off by design'.
• Point 9 – calls for fostering of ethical design by default, which could be supported by the Commission upholding a list of good design practices. As best practices it mentions: 
• ‘think before you share’, 
• turning of all notifications by default, 
• more neutral recommendations, 
• up-front choice between colour and greyscale apps, 
• warnings when users have spent more than 15-30 minutes on a specific service, 
• automatic locks for certain services after a preset time of use, 
• weekly summaries of total screen time (but also with an option for a break-down), 
• in-app awareness campaigns on potential risks. Educational campaign should promote ‘self-control strategies to help individuals develop safer online behaviours and new healthy habits’.

The European Parliament intends for the principle of ethical design to be predominant for digital services and products (see press release here) in order to counteract harmful impact of digital addiction on mental health. The attention to mental health issues arising from online interactions, especially amongst minors, is rising, not only in the EU. The UK has just finished accepting submissions to its inquiry into Preparedness for online safety regulation (see here). This sensitive topic definitely requires more attention, thus we will be keeping an eye on the forthcoming discussions on this.

New EU Commission study on consumer over-indebtedness

At the end of September, the EU Commission published a new, comprehensive, and timely Study on European consumers' over-indebtedness and its implications. The study takes a muti-disciplinary approach aiming to get a clear and updated picture of over-indebtedness among European households and consumers.

The aim of the study was broken into five distinct tasks:

• obtain a granular and updated mapping of the situation of over-indebtedness among European households and consumers in all 27 EU Member States 

• gather improved knowledge of the perspectives, perceptions, and challenges of EU consumers in relation to over-indebtedness, including in light of whether or not they have personally experienced it and their knowledge of financial matters 

• collect more, and more precise, information about the macro-economic drivers of over-indebtedness and their short-, medium- and long-term impact, including an analysis of the impact of the COVID-19 pandemic, as well as recent energy price shocks and rising inflation 

• provide an in-depth legal analysis of concrete interactions between EU and national rules and provisions covering consumer credit, mortgage credit, and other contiguous matters

• conduct a behavioural experiment focused on assessing the capacity of households and consumers to make informed and optimal credit choices.

With almost 300 pages of empirical data, behavioral experiments, legal analysis, and literature review, this study could be useful for everyone working or interested in the area of financial consumer law.

Update of ADR rules on the horizon

By GR Stocks on Unsplash

Today the European Commission announced their proposal to modernise ADR rules in Europe, in line with the digitalisation agenda (New measures to simplify the resolution of disputes out of court and boost consumer rights). This follows from the 2023 Consumer scoreboard results showing continued low numbers of consumers proceeding with enforcing their rights (1/4 of consumers experiences a significant consumer problem, but 1/3 of them does not complain for reasons related to time, cost and low confidence). The key points of the new plan to address these issues are: 

• Abolition of ODR (see for the proposal for a new regulation repealing ODR here) - currently the ODR platform facilitates ca 200 cases per year in the EU, which the Commission perceives as not justifying the costs of keeping this platform open and costs of business having to comply with ODR Regulation obligations (e.g. providing a link to ODR platform and assuring appropriate communication channels). The plan is to replace the ODR platform with 'user-friendly digital tools' assisting consumers in choosing a redress option.
• Broadening of the scope of ADR - it will no longer be necessary that a dispute stems from a concluded contract between the parties. This will allow encompassing all EU consumer law, incl. pre-contractual issues especially pertinent to online environment, e.g. misleading advertising and deceptive design, access to services and unjustified geoblocking. It aims also to start facilitating procedures against non-EU traders (although they as well would need to voluntarily join the scheme).
• Providing for additional consumer advice in accessing and during ADR process - to be delivered by designed bodies, e.g. European Consumer Centres Network. This could consist of translation, explanation of consumer rights, ADR procedures, etc.
• Removing some of the burdens for traders to encourage their uptake of ADR participation - e.g. reducing information obligations for traders. Additionally, ADR entities will ask traders whether they intend to participate in ADR when a consumer raises a complaint, which traders will need to answer in 20 days. This is aimed at prompting traders to (re-)consider their ADR participation.
• Removing some of the burdens and costs for ADR entities - e.g. reducing their reporting obligations (from every year to every 2 years, and requiring a more condensed report); facilitating bundling of cases with similar elements (although only upon consent of relevant consumers).
• Improving transparency - e.g. when a dispute is resolved through automated means, parties may request review by a natural person.

Additionally, the European Commission recommends online marketplaces to align their dispute resolution systems to European ADR principles, especially effectiveness, fairness, independence, expertise, impartiality, and transparency. See here for the Recommendation on quality requirements for dispute resolution procedures offered by online marketplaces and Union trade associations C(2023) 7019 final.

See for the new proposal for amending ADR Directive here. Additional information on the whole ADR review is here.

Influencer Legal Hub: New resource

By Laura Chouette on Unsplash

The European Commission launched today a new legal resource: Influencer Legal Hub. Prepared in collaboration with experts from Utrecht University and University of Leeds, it provides both textual and audio-visual help to influencers on their legal obligations. The idea behind this new legal resource is to ensure that the complex (by now) landscape of European consumer law could be easier traversed by content creators engaging in commercial transactions (earning money from promoting specific content). With them better informed, consumer protection level should increase, as the amount of misleading practices on various social media should decrease. Having said that, this new portal provides also plenty of information as a starting point for anyone researching influencer marketing; or even more broadly, for anyone interested in assuring fairness online. 

CJEU rules on the right of withdrawal in the subscription economy (C‑565/22, Sofatutor)

We have all been there: signing up for an online service with a "free trial" option and an automatic extension of the contract, if the trial is not terminated on time. But how does such a free trial relate to the right to withdraw from the contract? Should the consumer have a right of withdrawal only when booking the free trial, or also at a later stage - when subscription is converted into a standard contract, and perhaps even later - when it is renewed? This was the question in case C‑565/22, Sofatutor, on which the Court of Justice decided last Thursday. 

Facts of the case

The case was brought by Verein für Konsumenteninformation (VKI), a consumer organisation, against Sofatutor, a provider of an online learning platform. The trader allowed consumers to test the platform free of charge for 30 days from signing up and terminate the contract at any time during that period. Pursuant to the standard terms, if the contract was not terminated on time, the paid subscription period started. Moreover, the contract was renewed again, if it was not terminated before the paid subscription period ended.

According to the VKI, Sofatutor violated the national provisions implementing Article 9(1) of Directive 2011/83/EU on consumer rights (CRD), in that it restricted the consumers' right of withdrawal. The organisation argued that the consumers have a right of withdrawal not only when they book a free trial, but also when a free subscription is converted into a paid one and when that paid subscription is renewed. Unsure which interpretation to follow, the Supreme Court of Austria decided to stay the proceedings and refer the question to the CJEU.

Judgment of the Court

Regrettably, the Court denied a higher level of consumer protection in the present case and failed to even recognize the issue. Despite increased attention devoted to the risks of renewable subscriptions (see e.g. C. Busch, Pay to Play...), the Court chose to brush off the differences between the sale of goods and the (long-term) provision of services. The judgment devoted considerable attention to the purpose of the right to withdraw, noting that it is "intended to offset the disadvantage for the consumer resulting from a distance contract by granting him or her an appropriate period for reflection during which he or she can examine and test the goods acquired" (para. 39). According to the Court, the same reasoning applies to the sale of goods and the performance of services (para. 41), although there was no explanation for that statement.

The finding that there are essentially no differences between the sale of goods and the (long-term) provision of services, as far as the right to withdraw is concerned, led the Court to narrow its focus to just one point in time, i.e. when the contact is first concluded. In particular, the ruling stressed the importance of providing consumer with all required information at this stage. Eventually, a direct link between mandatory disclosure and the purpose of the right of withdrawal was established (para. 47).

For the Court, if all relevant terms for the future relationship are clearly communicated at the time of contract conclusion, then there is nothing to justify a new right of withdrawal at a later point in time, or any related business obligations. In reaching this conclusion, the Court explicitly precluded a more protective national reading of the right to withdraw, such as that which apparently existed under Austrian law (paras. 24 and 38).

Concluding thoughts

My main critique of the Sofatutor judgment is its apparent ignorance of the real problems that consumers are facing in the subscription economy. This is especially the case for the contract renewal, which typically takes place quite a while after the initial contract was concluded. The Court may have acknowledged that the right of withdrawal is not well-suited to the present scenario and that attention should rather turn to the right of termination (not harmonised in the CRD). However, the judgment does not even suggest that there would be any protection need. Instead, it maintains the fictitious image of the consumer - a consumer whose protection needs are limited to sufficient disclosure at the time of contract conclusion, even in long-term contracts. 

If the Court wanted to innovate on the right of withdraw, the CRD arguably offers some openings for doing so. Most importantly, the purpose of the right does not need to be limited to inspecting the goods (and, in particular, services). Indeed, its purpose is already quite different for off-premises contracts (e.g. doorstep sales), where the consumer is being provided with a "cooling-off period". It is accepted that the consumer may in those cases be taken by surprise and not really be able to assess the pros and cons of entering into a contract. It seems plausible that a consumer, who enters into a long-term relationship is similarly unable to imagine him or herself a year or so from now. Perhaps it is the renewal that takes the consumer by surprise and could thus justify a new right of withdrawal.

What is clear following the Sofatutor judgment, is that de lege lata the right of withdrawal cannot be a solution to renewable subscriptions. Our attention must therefore turn to other legal options discussed in scholarship, such as reminders about auto-renewals. Possibly, it is also time to take a closer look at consumers' termination rights - under the UCTD and beyond.

Guarantee statements and subjective consumer satisfaction – CJEU in LACD (C-133/22)

On Thursday, the CJEU (in C-133/22) ruled on the precise meaning of "commercial guarantee" as defined by point 14 of Article 2 of the Consumer Rights Directive ("CRD").

The referring court (German Federal Court of Justice) specifically asked whether the provision must be interpreted as meaning that a "commercial guarantee" includes, as "any other requirements not related to conformity set out in the guarantee statement" (Art. 2), an undertaking made by the guarantor regarding "circumstances specific to the consumer, in particular his or her subjective attitude towards the item purchased (in this case, the consumer's personal satisfaction with the item purchased (...) without it being necessary that those personal circumstances relate to the condition or features of the item purchased" (ruling). 

Consumers, reading this case, will be interested in this question: Can an intelligibly worded guarantee cover reasons for dissatisfaction with the product which are exclusively subjective and only concern how the consumer feels about the product? 

Let's take a look at the facts of the case. LACD is a company which distributes sports and fitness products both via online merchants and retailers. On LACD products, consumers could find a tag defining a pretty wide "LACD Warranty". The tag stated: 

"Every LACD product comes with our lifetime guarantee. If you are not completely satisfied with any of our products, please return it to the specialist dealer from whom you purchased it. Alternatively, you can return it to "LACD" directly but remember to tell us where and when you bought it." 

BB Sport, a retailer of sport and fitness products, purchased two LACD t-shirts through a mystery shopper and upon reading the tag brought an action before the Regional Court of Munich seeking an injunction which would prohibit LACD form attaching those hangtags. BB Sport considered the tags not to meet the statutory requirements applicable to guarantee statements, as detailed under Article 443 and 479 of the BGB.  The provisions establish that: 

"the specific undertaking by the seller (...) set out in a statement (...) constitutes a guarantee in addition to the guarantee of conformity, the purpose of which is to reimburse the purchase price, to replace or repair the goods sold or to provide any other service in connection with those goods in they do not meet the specifications or any other requirements not related to conformity set out in that guarantee statement" (ruling). Such statement "must be worded in plain, intelligible terms" and must list "the elements which that statement must include" (ruling)

The first court dismissed the action, while the Higher Regional Court of Munich upheld the appeal. LACD brought an appeal before the Federal Court of justice, which referred to the CJEU with the question detailed above. 

The CJEU first observed that nothing, in the way Article 2 of the CRD is worded, excludes from its scope of application a guarantor's undertaking regarding the consumer's subjective and personal satisfaction with the product purchased. "Any other requirements" is a wide expression, as observed by the AG, and there is no need for those requirements to refer to an "objective consideration related to the features or properties of those goods". This interpretation is consistent with the objective of the CRD, which is aimed at providing a high level of consumer protection by ensuring consumers have all the information necessary to make a decision before purchasing. Consumers purchasing from LACD will know that they are guaranteed a high level of protection, also as regards their very personal dissatisfaction with a product.

The Court observes that, after all, in making this undertaking LACD is only using its right to conduct business, established by Article 16 of the Charter of Fundamental Rights of the European Union. 

Finally, the Judges rule that, because the statement provides guarantees related to the consumer's subjective satisfaction with the products, the failure to satisfy the expectation "cannot, by definition, be subject to objective verification" (ruling). A mere statement of the consumer must be considered sufficient. 

This ruling can certainly be regarded as ensuring a high level of consumer protection, allowing at the same time traders to offer a very wide guarantee and thus conduct their business as they think is best. Clearly, the wording of the statement must comply with clarity requirements and always be worded intelligibly and plainly. 

Alternative terms on performance, average consumers... tune in to CJEU in mBank (C-139/22)

Claudio Schwarz on Unsplash

Today the CJEU decided another case on unfairness in mortgage loan agreements with an index-link to Swiss francs - in the Polish mBank case (C-139/22). The first part of the judgment is Poland-specific, as it refers to the validity and effect of a national register of unlawful terms, which Poland happens to have. This issue has already been considered in the previous Biuro case (see our comment on case C-119/15 here). The Court now reiterated that as long as the register is transparent, kept up to date, and the traders have an opportunity to question the applicability of the register in their particular case, national courts could benefit from such registers (paras 41-43). Hence, contested terms could be declared by national courts as unfair if their content has previously  been registered as unfair, provided that the court warns parties to the proceeding about this and gives the trader the opportunity to challenge this finding (para 45). 

The second question was more interesting: What happens if the mortgage loan contract contains a term that is likely to be unfair, however, it also contains another term, which allows consumers to disregard the unfair term and follow a different path for contractual performance? In this case, the contract included a term that obliged consumers to reimburse a loan index-linked to Swiss francs 'exclusively in the national currency as converted according to a rate of exchange freely determined by the bank' (para 52). This term was previously determined as unfair by Polish courts. However, the contract also included a term that allowed consumers instead to reimburse the bank directly in Swiss francs. This would allow consumers to choose where to obtain Swiss francs from, avoiding the conversion rates set by mBank. According to the bank, consumers could have then avoided the detrimental effect of the first term, which, again pursuant to the bank. would not lead to unfairness. The Court rightly rejects this argumentation. Contrarily, it emphasises that a contract containing such a mechanism - two alternative terms referring to the same obligation, one of which is unfair and one of which is lawful - per definition should be considered unfair (para 55). The trader could be seen as counting on consumers' 'lack of information, failure to pay due attention or a lack of understanding', which would lead them to re-pay the loan in the way set out by the detrimental, unfair term, with the other term then only providing a mechanism to avoid liability by the trader (para 55).

Interestingly, the Court makes the above-finding fully aware of the average consumer standard that applies to the interpretation of the UCTD provisions. On its basis, we could expect that reasonably well-informed and circumspect consumers, who are to read and attempt to understand the contract and its consequences, should recognise the better of the two options for re-payment. And yet... the Court does not think so.

The average consumer is mentioned by the Court when giving the answer to the third question: Does the fact that one of the borrowers worked for the bank exclude them from the scope of protection of the UCTD? The answer is: No. As the concluded contract does not pertain to the employment relationship, the sole fact that it is concluded with the employer does not mean that it could change its non-commercial purpose (para 69). Further, even if the consumer in this case had insights into exchange rates of mBank, which were not available to consumers not working for this bank, this did not mean that their 'more specialised' knowledge should exclude them from the scope of protection of the UCTD. The CJEU reminds that we refer to the objective benchmark of an average consumer and their knowledge. Thus neither less nor more consumer knowledge in a given case will matter (para 66).

Double jeopardy in Volkswagen cases - CJEU in Volkswagen Group Italia and Volkswagen Aktiengesellschaft (C-27/22)

Last Thursday the CJEU adjudicated in the Volkswagen Group Italia and Volkswagen Aktiengesellschaft case (C-27/22 - see here). We have previously written about the Volkswagen scandal on the blog (see here) - that is, on the unfair commercial practice that Volkswagen engaged in by installing a defeat device in its cars, which led to marketing them as more environmentally-friendly in 2009. As our past blog posts mention, various national authorities were active in their investigation of Volkswagen's conduct. And here lies the problem that the CJEU tackled in this new case: Could different national procedures against Volkswagen (for the breach of consumer protection rules, esp. prohibition of unfair commercial practices) breach the principle of ne bis in idem? 

Eliott Van Buggenhout on Unsplash

Two national authorities' decisions were at stake here. The Italian authority (AGCM) imposed a fine of 5 million Euro on Volkswagen in August 2016 for the unfair marketing practices in Italy. This decision was promptly challenged in court by Volkswagen. Then, the German authority (Public Prosecutor's Office of Braunschweig) imposed a fine of 1 billion Euro for the 'negligent breach of the duty of supervision' in developing and installing relevant software worldwide. Volkswagen did not challenge this decision and paid the fine, which means it became final in June 2018. Part of the German decision indicated that the amount of 5 million Euro from the total fine would indeed penalise for the conduct mentioned in the Italian decision, whilst the rest of the fine aimed at taking away the economic advantage that Volkswagen derived from engaging in the unfair practice (para 19). This then led to Volkswagen claiming that the Italian authority's decision infringes the principle of ne bis in idem (embedded in Article 50 of the Charter of Fundamental Rights), as it would duplicate the penalty for the same acts against the same person when it became final. To be able to claim this, Volkswagen argued that administrative fines placed on it were of a criminal nature. 

The Court of Justice agreed that administrative fines for breach of unfair commercial practices may be of a criminal nature. What is necessary is that the penalty has a punitive aim and a high degree of severity (determined on the basis of its amount compared to maximum allowed penalty under relevant provisions) (paras 45, 53-54). If these criteria are fulfilled, the penalty should be seen as of a criminal nature, even if national law classifies it as an administrative penalty (para 48). The Court mentions that if the fine was merely trying to repair the damage (possibly take away the unfair advantage), then it would be unlikely that it had a punitive or deterrent character, which characterises criminal sanctions (para 49). However, e.g. the fact that there is a maximum amount that can be set as a fine suggests that it would not always allow for taking away the achieved unfair advantage (para 52).

Consequently, if the Italian and German procedures penalise Volkswagen on the basis of identical material facts, not just similar facts and regardless of the national legal qualification of these facts, Italian law would not be able to allow for maintaining of the proceedings (paras 66-67, 70). This would indeed infringe the principle of ne bis in idem. This would only be different if the following three conditions were satisfied (para 96): 1) duplication of proceedings would not excessively burden Volkswagen (interestingly, since the Italian fine amounts to only 0.5% of the German fine, CJEU would not consider awarding it alongside the German fine as an excessive burden - para 97); 2) there needs to be transparency and predictability of which acts or omissions could be subject to duplication of proceedings (could Volkswagen predict then that their practices could give rise to proceedings in various countries? - para 98); 3) proceedings should be duplicated within a proximate timeframe and coordinated (and it seems that the Italian authority did not engage in any attempts initiated by the German authority to coordinate these proceedings - paras 101-102).

Ex officio and package holidays - CJEU in RTG v Tuk Tuk travel SL (C-83/22)

 Dear readers,

do you remember when the Package Travel Directive (2015/2302) and package travel rules all of a sudden seemed very current, back at the heights of the pandemic, after having been mocked for years as the 2015 rules for 1980s holiday-making? Well, in a reminder that we all sit in our little bubbles :), it turns out consumers may not have noticed all the fuss in the legal community after all - but ex officio is there to make courts watch. 

Here's the story: yesterday the CJEU published its decision in RTG v TUK travel SL, which concerned a refund claim by a consumer who had planned and cancelled a trip to a faraway location in 2020. When trying to get his money back, the consumer was informed by the travel organiser that they would only be able to recover a very tiny sum. Subsequently, he sued for recovery claiming the contract was terminated due to force majeure, demanding ca 75% of the original sum - in acknowledgement of what the consumer thought were reasonable expenses incurred by the organiser. 

The national court seised with the case had its quandaries with the claim: on the one hand, the judge knew that the Package Travel Directive's article 12(2) entitled the consumer to a full reimbursement in cases like the one at hand; on the other hand, rules of Spanish civil procedure did not allow the court to modify the consumer's claim. The Court asked the parties to clarify - had the trader in fact informed the consumer, at the moment of concluding the contract, that he had a right to termination without consequences if the trip had to be cancelled? Apparently they had not. 

I will not discuss here the first question asked by the court, which rested on a misunderstanding of the text of the directive. The second question, however, in essence asked - to what extent are courts required to apply the Package Travel Directive ex officio? 

The CJEU gave a reasonably helpful answer to this question. In essence, national courts in similar situations will have to ex officio examine whether the rules in the Directive have been complied with, on the basis of the information available within the procedure. If the Court ascertains a violation - like, in this case, of article 12(2) - it will allow the consumer to amend their claim. Courts are not required or allowed, however, to go on and apply the remedy ex officio "rewriting" the consumer's claim without further ado. 

This is a somewhat systematically ambitious judgement to the extent that the CJEU (para 54-57) ventures into expressly translating previous case-law into a series of requirements without which ex officio cannot take place:

• the court must have a judgment pending about the specific contract at hand brought by one of the parties
• the involved provision (right to terminate) must be relevant to the object of the dispute as identified by the parties
• the court must have all the necessary elements available and
• the consumer must not have expressly objected to the application of the provision at hand. 

The first three requirements appear taken almost verbatim from the CJEU's previous decision in Lintner (C-511/17 - see our comment here), concerning unfair terms; the last one also seems to reflect case-law in the same area, and namely Dziubak (C-260/18 - see our comment here). 

Different to many ex officio cases, this case did not concern an absentee consumer - only one who had gone to court without a lawyer and maybe therefore (and because of the trader's failure to comply with consumer protection law) had not formulated their best possible claim. Also contrary to Duarte Hueros (C-32/12 - see our comment here), this consumer had in fact formulated a successful claim - but one that was not as advantageous as the one that he was allowed under consumer law. In this respect the decision is both far-reaching - it's not obvious that the consumer would have not received effective protection without ex officio, so the "public order" reason for control seems to feature prominently - and rather modest in not prescribing an outcome (which seems to make it less of a public order reasoning). In any case, this being Friday afternoon, I will say that it's not particularly easy to feel in this case for the trader who had actively tried to mislead the consumer as to his rights. Not nice of you, Tuk Tuk travel!