1. Review of EU Consumer & Marketing Law
6th EUROPEAN DIRECT SELLING CONFERENCE
6 October 2016
Veronica Manfredi
Head of Unit E2 "Consumer & Marketing Law"
DG Justice and Consumers
European Commission

2. Fitness Check of EU consumer law
In January 2016, in the framework of its "Regulatory Fitness and Performance" Programme (REFIT) the European Commission launched a Fitness Check of the main (horizontal) EU Consumer and Marketing law Directives
'Fitness check' is a comprehensive evaluation of a policy sector – as opposed to evaluation of individual directives.
Identification of excessive regulatory burdens, overlaps, gaps, inconsistencies and/or obsolete measures.
With a view to assess whether there is a need for legislative action at EU level.

3. Directives subject to Fitness Check
A common EU legislative framework sets the standard of consumer protection and marketing across the European Union.
Six key pieces of legislation are subject to the Fitness Check:
Six key pieces of legislation are subject to Fitness Check:
Unfair Contract Terms Directive 93/13/EEC (UCTD);
Sales and Guarantees Directive 1999/44/EC;
Unfair Commercial Practices Directive 2005/29/EC (UCPD).
The Price Indication Directive 98/6/EC;
The Injunctions Directive 2009/22/EC;
The Misleading and Comparative Advertising Directive 2006/114/EC (MCAD).
The Consumer Rights Directive is being evaluated in parallel. The conclusions of its evaluation will feed into the final report of the fitness check

4. Objectives of the Fitness Check
Assess the overall effectiveness, efficiency, coherence, relevance and EU added value of the existing regulatory framework.

5. Fitness Check Procedure
"Roadmap" published on 8 January 2016.
Process led by DG Justice and Consumers; intra-Commission coordination through an Inter-Services Steering Group.
Several supporting studies underway to collect data.
Online public consultation (12 May – 12 September 2016).
Stakeholder consultative group established – 1st meeting on 21 September 2016.
"Consumer Summit" 2016 dedicated to the Fitness Check (17 October 2016).
First priority in light of the Digital Contracts Proposals – provision of data on the Sales Directive 1999/44/EC to substantiate the case for alignment of rules for all sales channels (August - September 2016).
Adoption and publication of the Fitness Check Report in Spring 2017 with the announcement of follow-up actions.
The purpose of the Fitness Check is also to identify issues/ areas for improvement/ follow-up action.
If there is a convincing case for a legislative initiative , it could be presented towards the end of 2017.

6. 1st priority – contribution to the legislative process on sales and guarantees
Objective: to assist the co-legislators in their work on the Proposal on distance sales of goods by providing additional data as to the costs and benefits of a potential alignment of the rules for off-line sales to those proposed for distance sales.
Preliminary data were submitted to the European Parliament and the Council at the beginning of August and final ones at the end of September.
They are based on consumer survey, business interviews and the existing sources (2015 Commission study on the legal and commercial guarantees, Eurobarometers).

7. Possible follow-up to the Fitness Check: Example of consumer information
Should we simplify the UCPD information requirements for the invitation to purchase in view of the more comprehensive pre- contractual information requirements under the CRD?
Do we need to maintain the Price Indication Directive – can the "unit price" indication requirement be rather added to the CRD/ UCPD?
Should we provide for a (binding or non-binding) graphical model for the presentation of pre-contractual information requirements (building upon work done on the Model for providing pre-contractual information on digital content under the CRD)?

8. Possible follow-up: example of the rules on fairness
Should consumers have also the right to individual remedies (e.g. compensation and invalidity of the contract) in case they have been victims of unfair commercial practices prohibited under the UCPD?
Should we create a "black list" of recurrent and harmful standard T&Cs (especially in the online context) for easier enforceability by authorities and courts?
Should we provide for a (binding or non-binding) easy graphical model for the presentation of key standard T&Cs?
Should we incorporate the key CJEU case law to strengthen the procedural protection requirements under the UCTD?

9. Online Public Consultation – replies
company (or group of companies)
176
40.4%
citizen/consumer 97
22.2%
national business association 51
11.7%
European-level business association 35
8.0%
national consumer association 16
3.7%
other 15
3.4%
government authority in charge of consumer policy 13
3.0%
national consumer enforcement authority 10
2.3%
another public body /institution 7
1.6%
national public enforcement authority in a specific area (energy, telecom etc.) 5
1.1%
European-level consumer association 4
0.9%
professional consultancy/ law firm
think tank/ university/ research institute 3
0.7%
TOTAL
436
100.0%
Other: Chambers of Commerce, NGO, association representing notaries/lawyers etc., some European Consumer Centres

10. Other includes: Norway, Switzerland, Turkey, USA, "EU-level", "several countries".

11. Main Trends of the replies: whether rules should be further harmonised
EU consumer and marketing rules should be further harmonised to make it easier for traders to offer their products/services cross-border and for consumers to rely on the same level of protection across the EU.
69 % of companies agree
65 % of consumers agree
51 % of public authorities agree
45 % of consumer associations agree
44 % of business associations agree
40 Consumers (12 MS, most, 21 from DE)
39 Companies: incl. 14 SMEs based on nr of employees, 26 individual + 13 group of companies
67% both online offline; 10 % only offline; 23% only online
69% domestically&cross-border; 23% only domestically (dont know 5%, only cross-broder 3%)
13 MS (most, 8, from DE)
87 Business associations: 51 national + 36 European (incl. 19 Germany); 16 MS
20 Consumer associations: 16 national + 4 European (incl. 4 Germany); 12 MS
35 Public authorities: 13 government authorities in charge of consumer policy + 10 national consumer enforcement authority + 7 another public body /institution + 5 national public enforcement authority in a specific area (energy, telecom etc.)
22 MS

12. Main Trends of the replies: whether rules should be codified
EU consumer and marketing rules should be simplified by bringing them into a single horizontal EU instrument
62 % of companies agree
55 % of consumer associations agree
54 % of public authorities agree
43 % of consumers agree
33 % of business associations agree
40 Consumers (12 MS, most, 21 from DE)
39 Companies: incl. 14 SMEs based on nr of employees, 26 individual + 13 group of companies
67% both online offline; 10 % only offline; 23% only online
69% domestically&cross-border; 23% only domestically (dont know 5%, only cross-broder 3%)
13 MS (most, 8, from DE)
87 Business associations: 51 national + 36 European (incl. 19 Germany); 16 MS
20 Consumer associations: 16 national + 4 European (incl. 4 Germany); 12 MS
35 Public authorities: 13 government authorities in charge of consumer policy + 10 national consumer enforcement authority + 7 another public body /institution + 5 national public enforcement authority in a specific area (energy, telecom etc.)
22 MS

13. Main Trends of the replies: whether enforcement should be strengthened
Consumer protection should be strengthened by making sure that non-compliant businesses face truly dissuasive sanctions amounting to a significant % of their yearly turnover
95 % of consumer associations agree
66 % of public authorities agree
60 % of consumers agree
28 % of companies agree
6 % of business associations agree
40 Consumers (12 MS, most, 21 from DE)
39 Companies: incl. 14 SMEs based on nr of employees, 26 individual + 13 group of companies
67% both online offline; 10 % only offline; 23% only online
69% domestically&cross-border; 23% only domestically (dont know 5%, only cross-broder 3%)
13 MS (most, 8, from DE)
87 Business associations: 51 national + 36 European (incl. 19 Germany); 16 MS
20 Consumer associations: 16 national + 4 European (incl. 4 Germany); 12 MS
35 Public authorities: 13 government authorities in charge of consumer policy + 10 national consumer enforcement authority + 7 another public body /institution + 5 national public enforcement authority in a specific area (energy, telecom etc.)
22 MS

14. Main trends of the responses – consumer information (I)
Business associations (EU level and national ones combined – 86 respondents) were generally supportive to the ideas in this area:
reducing information obligations at the advertising stage - 82% of respondents replied "strongly agree" or "tend to agree";
streamlining consumer information requirements currently found in different directives - 56%;
Providing additional information obligations for online platforms to inform consumers about the ranking criteria they use for presenting information -47%.
Also individual companies expressed relatively strong support for these ideas – between 62% and 59% of respondents replied "strongly agree" or "tend to agree".

15. Main trends of the responses – consumer information (II)
As regards consumer associations (EU level and national ones combined – 20 respondents), 95% supported the idea of additional information obligations for platforms, whilst the ideas of streamlining the information requirements in different directives and reducing information obligations at the advertising stage were amongst the least supported ones – by 65% and 45% of respondents, respectively.
Amongst individual consumers, the ideas of streamlining the information requirements and providing additional obligations for online platforms were amongst the most supported ones (60% for both), whilst only 25% of respondents were in favour of reducing the information requirements at the advertising stage.
Amongst the national authorities and other public institutions (35 replies in total), most support in this area was for streamlining the information requirements (66%), closely followed by additional information obligations for platforms (63%), whilst the reduction of the information requirements in advertising was one of the least supported ideas (51%).

16. Main trends of the responses – increased protection against unfair commercial practices
The introduction of the consumer's individual right to remedies (e.g. compensation or invalidity of the contract concluded as a result of unfair commercial practices) was most supported by the consumer associations, public authorities and individual consumers – 95%, 71% and 68% respectively replied "strongly agree" or "tend to agree".
As regards business associations, this was one of the least supported ideas (10%).
The support was higher amongst the individual companies (44%).

17. Main trends of the responses – strengthening consumer protection in the area of standard contract terms
The introduction of an EU-wide black-list of prohibited contract terms and of codification into the Unfair Contract Terms Directive of the relevant Court of Justice's case law were strongly supported by consumer associations (90% for both).
These two ideas were also well-supported by the public authorities – by 63% and 57%, respectively, and individual consumers – by 55% and 50% of respondents, respectively.
As regards business associations, these ideas were supported by only 17% and 9%, respectively, whilst the support was higher amongst the individual companies – 46% and 33% of respondents, respectively.

18. Main trends of the responses – B2B relations
In the area of B2B relations, the three most supported ideas by business associations were the introduction of an enforcement co- operation mechanism for cross-border B2B infringements (31%), the extension of the B2B protection rules beyond the marketing stage (29%) and the introduction of a black list of B2B commercial practices (28%).
The same ideas were also the most supported ones in the case of the public authorities – by 31%, 40% and 29%, respectively. The introduction of the right to individual remedies for businesses that have suffered from unfair B2B practices was also supported by 29% of the respondents.
Individual businesses were most supportive towards the extension of the B2B protection beyond the marketing stage (62%), the introduction of a black list (59%) and the extension of the Unfair Contract Terms Directive (UCTD) to B2B contracts (51%).

19. Consumer Summit 2016:
Dedicated to the Fitness Check
Around 450 participants expected
Registration DDL: 7 October
Three main themes:

20. Thank you for your attention!