The Consumer Rights Directive - an assessment from the European Consumer Organisation point of view ▸ Agustín Reyna Conference dedicated to European Consumer Day Vilnius 17 March 2014

Crónica de una muerte anunciada - From the Commission’s proposal to the CRD 2008: The European Commission published its proposal for a Directive on consumer rights: revising four minimum harmonisation directives (off-premises contracts, distance selling, consumer sales and unfair contract terms); applying full harmonisation and, lowering the level of consumer protection on key areas of national consumer contract laws. 2011: The European Parliament and the Council adopted the Consumer Rights Directive: limited to distance and off-premises contract plus other consumer rights; fully harmonising key elements that are important for e-commerce contracts, while giving Member States regulatory options to adopt or maintain on very limited areas more protective national provisions (mixed harmonisation) 5/29/2018

Benefits & Improvements of the CRD Some examples include: Detailed pre-contractual information for premises (novelty), distance and off-premises contracts, including information for digital content products. Specific requirements for the validity of the consumer obligation to make a payment under the contract (e.g. e-button solution) and formal requirements for information provided in a limited medium (e.g. m-commerce) 14-day cooling-off period for the right of withdrawal. New rules on passing of risk and delivery. End of excessive payment surcharges. Ban on pre-ticketed boxes - the consumer’s express consent to extra payments is required. 5/29/2018 3

Risks & Uncertainties of the CRD Full harmonisation impedes Member States from strengthening consumer protection in domestic markets. Consumers may lose some rights (e.g. right of withdrawal in package travel for off-premises contracts) Some provisions of the CRD are not clear enough and may lead to an inconsistent transposition by the Member States (e.g. the e-button solution could be seen as an optional feature in the wording of article 8) The CRD does not apply to non-monetary contracts, which have become a consumer issue in the digital environment (e.g. “free” digital content such as APPs) 5/29/2018 4

What is next? Smarting consumer information. Enforcement: improve national enforcement and explode the opportunities of pan-European co-ordination. The future of EU consumer law: further approximation of national laws or optional regulation? 5/29/2018 5

1. Consumer information should be SMART Consumers do not usually read or understand pre-contractual information due to information overload and lack of transparency. Consumer research shows that consumer information is a process in which consumers have different information needs and expectations before during and after the purchasing decision. (See BEUC study “Form Matters - informing consumers effectively” by Prof. Natali Helberger.) CRD provides for material and formal requirements for consumer information - it’s time to apply them in a effective manner: Eg. the Commission’s proposal for a model for consumer information of digital content 5/29/2018 6

2. Better enforcement of consumer Law Consumer rights are useless if they are not religiously enforced. National enforcement: Insufficient resources for market surveillance. Similarly, many consumer associations cannot afford pursuing companies infringements due to the lack of resources. Need to count on effective sanctions. Pan-European enforcement: No EU competence for the direct enforcement of consumer laws. Co-ordination is taking place under the CPC-network (e.g. sweep investigations) National consumer associations are playing an important role in pan-European enforcement of consumer law (e.g. Apple case) under several programs co-ordinated by BEUC and partially funded by EU budget (Eg. CLEF and CoJEF I and II projects) An integrated approach of public and private enforcement is needed to smooth the co-operation between consumer associations and public authorities. 5/29/2018 7

3. The future of EU consumer Law Further harmonisation or optional law? The Commission’s proposal for a Common European Sales Law is a fundamental shift in the way consumer rights are regulated in the EU Optional law does not grant equal protection to all EU consumers – businesses have the possibility to decide which level of protection they will offer to consumers (between the CESL and the national legislations in application of Rome I regulation) Harmonisation of consumer Law is not over! Eg. in the short term it is necessary to modernise the European rules on consumer guarantees in areas such as: consumer guarantee rights when purchasing digital content products the reversal of the burden of proof durability of goods 5/29/2018 8

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