PURPOSE: to ensure better enforcement modernise EU
consumer protection rules, in particular in the light of the
developments in the digital economy.
PROPOSED ACT: Directive of the European Parliament and
of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: the European
Parliament decides in accordance with the ordinary legislative
procedure and on an equal footing with the Council.
BACKGROUND: the assessment of EU consumer protection
rules and recent cross-border infringements of EU consumer law, in
particular the "Dieselgate" scandal, have shown that there is
still room for improvement to strengthen consumer
protection.
In order to strengthen the application of European
consumer law in the face of the increasing risk of infringements at
European level, this proposal introduces targeted amendments to
four consumer rights directives, namely (i) Directive
2005/29/EC on unfair commercial practices; (ii) Directive
2011/83/EU on consumer rights; (iii) Directive
93/13/EEC on unfair contract terms and (iv) Directive
98/6/EC on the price indication.
This proposal is presented together with a proposal
on representative actions for the protection of the collective
interests of consumers, and repealing Directive
2009/22/EC.
IMPACT ASSESSMENT: the preferred option combines: (i)
increasing deterrence and proportionality of public enforcement
through stronger rules on penalties and a more effective
injunctions procedure; (ii) the consumer’s right to individual
remedies.
CONTENT: this proposal amends the existing EU consumer
protection rules as follows:
(1) Amendments
to Directive 2005/29/EC (unfair commercial practices):
- Individual remedies: the
proposal provides that consumers will have the right to bring
individual remedies if they are harmed by unfair commercial
practices, such as aggressive marketing. Member States shall
provide for contractual and non-contractual remedies. At a
minimum, contractual remedies shall include the right to terminate
the contract. Non-contractual remedies shall, as a minimum, include
the right to compensation for damages.
- Penalties: a list of
common, non-exhaustive criteria for assessing the gravity of
infringements (except for minor ones) is introduced in the proposed
Directive. Enforcement authorities would be required to take these
criteria into account when deciding whether to impose penalties and
on their level. If the penalty to be imposed is a fine, the
authority would be required to take into account, when setting the
amount of the fine, the infringing trader’s turnover, net
profit as well as any fines imposed for the same infringement in
other Member States. In addition, for 'widespread infringements'
and 'widespread infringements with a Union dimension', Member
States will be required to provide in their national law for fines
the maximum amount if which should be at least 4% of the
infringing trader’s turnover in the Member State or Member
States concerned.
- Hidden advertising:
today, paid placements (where third parties pay for higher
ranking) and paid inclusions (where third parties pay to be
included in the list of search results) are often not indicated at
all, or are only indicated in an ambiguous way not clearly visible
to consumers using digital applications such as online marketplaces
or comparison tools. It is proposed to clarify the provisions on
the prohibition of hidden advertising to clarify that online
platforms must indicate search results containing paid placements
(or paid inclusions).
- Off-premises sales: the
proposal stipulates that Directive 2005/29/EC authorises Member
States to adopt provisions to protect the legitimate interests of
consumers with regard to aggressive or misleading marketing or
selling practices in the context of unsolicited visits by a trader
to a consumer's home (in other words, visits which are not made at
the request of the consumer, for example, through fixing an
appointment with the trader) and with regard to commercial
excursions organised by a trader with the aim or effect of
promoting or selling products to consumers, where such restrictions
are justified on grounds of public policy or the protection of the
respect for private life.
- Dual quality products:
the proposal amends Directive 2005/29/EC by clarifying that a
commercial practice involving the marketing of a product as being
identical to the same product marketed in several other Member
States, where those products have significantly different
composition or characteristics causing or likely to cause the
average consumer to take a transactional decision that he would not
have taken otherwise, is a misleading commercial practice
which competent authorities should assess and address on a case by
case basis according to the provisions of the
Directive.
(2) Amendments to Directive 2011/83/EU (consumer
rights): the proposed amendments aim
to:
- extend the application of Directive 2011/83/EU to
digital services for which consumers do not pay money
but provide personal data, such as: cloud
storage, social media and e-mail accounts. Given the increasing
economic value of personal data, those services cannot be regarded
as simply ‘free’. Consumers should therefore have the
same right to pre-contractual information and to cancel the
contract within a 14-day right-of-withdrawal period, regardless
of whether they pay for the service with money or provide personal
data;
- introduce more transparency for consumers on online
marketplaces: today, consumers do not
always know how the offers presented to them on an online market
place have been classified or from whom they buy (a professional or
another consumer). The proposal introduces additional
information requirements in Directive 2011/83/EU, which require
online marketplaces to clearly inform consumers about: (i) the main
parameters determining ranking of the different offers, (ii)
whether the contract is concluded with a trader or an individual,
(iii) whether consumer protection legislation applies and (iv)
which trader (third party supplier or online marketplace) is
responsible for ensuring consumer rights related to the contract
(such as the right of withdrawal or legal guarantee);
- remove unnecessary burdens for
businesses, including by lifting
obligations on companies as regards the consumer's withdrawal
right. For instance, consumers will no longer be allowed to return
products that they have already used instead of merely trying them
out, and traders will no longer have to reimburse the consumers
before actually receiving the returned goods.
The other two Directives (Directive 93/13/EEC on
unfair terms in contracts and Directive 98/6/EC on the price
indications) would only be amended as regards penalties.