1. 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

2. 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)
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3. 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.
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4. 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)
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5. 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?
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6. 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
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7. 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.
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8. 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
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9. Thank you for your attention!–