Forslag til europaparlaments- og rådsdirektiv om endring av rådsdirektiv 93/13/EØF, europaparlaments- og rådsdirektiv 98/6/EF, europaparlaments- og rådsdirektiv 2005/29/EF og europaparlaments- og rådsdirektiv 2011/83/11 hva angår bedre håndheving og modernisering av EUs forbrukervernlovgivning
Proposal for Directive of the European Parliament and of the Council amending Council Directive 93/13/EEC, Directive 98/6/EC of the European Parliament and of the Council, Directive 2005/29/EC of the European Parliament and of the Council and Directive 2011/83/EU of the European Parliament and of the Council as regards better enforcement and modernisation of EU consumer protection rules
Forslag til europaparlaments- og rådsdirektiv lagt fram av Kommisjonen 11.4.2018
BAKGRUNN (fra kommisjonsforslaget, engelsk utgave)
Reasons for and objectives of the proposal
This proposal aims at amending four EU directives that protect the economic interests of consumers. Most of the amendments concern the Unfair Commercial Practices Directive 2005/29/EC and the Consumer Rights Directive 2011/83/EU. Each of the other two Directives – the Unfair Contract Terms Directive 93/13/E EC and the Price Indication Directive 98/6/EC – are only amended concerning penalties. 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.
The Treaties (Articles 114 and 169 TFEU) and the Charter of Fundamental Rights (Article 38) require a high level of consumer protection in the Union. Union consumer legislation also contributes to the proper functioning of the internal market. It aims to ensure that business-to-consumer relations are fair and transparent, which ultimately supports the overall welfare of European consumers and the Union economy.
This proposal is a follow-up to the REFIT Fitness Check of EU Consumer and Marketing law, published on 23 May 2017 (the 'Fitness Check') and the evaluation of the Consumer Rights Directive 2011/83/EU, which was conducted in parallel to the Fitness Check and published on that same day (the 'CRD Evaluation').
The Fitness Check and the CRD evaluation concluded that the substantive EU consumer rules included in the four Directives, which are amended by this proposal, are overall fit for purpose. However, the results also stressed the importance of better applying and enforcing the rules and modernising them in line with developments in the digital sphere. It also stressed the importance of reducing regulatory burden in some areas.
The evaluation findings have been given more importance by recent cross-border infringements of EU consumer law, in particular, the ‘Dieselgate’ scandal (where car manufacturers installed technology in cars to cheat emissions tests). Such infringements undermine consumer trust in the Single Market. They have also sparked a debate about whether the EU has strong enough mechanisms in place to handle such issues, enforce consumer protection rules and provide redress to victims.
For these reasons, in the 2017 State of the Union Address, Commission President Jean-Claude Juncker announced the 'New Deal for Consumer', which aims at strengthening the enforcement of EU consumer law amid a growing risk of EU-wide infringements. The present proposal, which introduces targeted amendments in four consumer law directives, is a key part of this ‘ New Deal ’. In summary, the proposal aims at making the improvements outlined below.
• More effective, proportionate and dissuasive penalties for widespread cross-border infringements. The recently adopted Regulation (EU) 2017/2394 regulates how national consumer enforcement authorities work together to address cross-border infringements of consumer law. In particular, it focuses on widespread infringements harming consumers in several Member States and widespread infringements with a Union dimension. For this type of widespread infringement, national authorities may need to impose effective, proportionate and dissuasive penalties in a coordinated manner. However, the available penalties for infringements of consumer law are very different across the EU, and are often set at a low level. Under the proposal, national authorities will have the power to impose a fine of at least up to 4 % of a trader's turnover for such widespread infringements. More generally, the national authorities should decide on the level of penalties based on common parameters, in particular the cross-border nature of the infringement. These strengthened rules on penalties will be inserted in the four directives concerned.
• Right to individual remedies for consumers. The proposal envisages that consumers will have the right to individual remedies when they are harmed by unfair commercial practices, such as aggressive marketing. In particular, Member States should make both contractual and non-contractual remedies available. As a minimum, the contractual remedies should include the right to contract termination. Non-contractual remedies should, as a minimum, include the right to compensation for damages. These rights will be added to Directive 2005/29/EC on unfair commercial practices.
• More transparency for consumers in online marketplaces. Today, when consumers visit online marketplaces, they are exposed to a variety of offers from third-party suppliers selling on the online marketplace (and offers from the online marketplace itself). Consumers do not always know how the offers they are presented with on the online marketplace have been ranked and from whom they are buying (whether from professional traders or other consumers). Many consumers are under the impression that they are buying from the online marketplace and are thus entering into a contract with it. In reality, they may be buying from a third-party supplier listed on the online marketplace who is not a trader. As a result, consumers may falsely think they are dealing with professional traders (hence benefitting from consumer rights). This confusion can cause problems in case something goes wrong with an online purchase, because it is not always easy to establish who is responsible. The proposal introduces additional information requirements in Directive 2011/83/EU, which require online marketplaces to clearly inform consumers about: (a) the main parameters determining ranking of the different offers, (b) whether the contract is concluded with a trader or an individual, (c) whether consumer protection legislation applies and (d) 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).
• In addition, consumers using digital applications such as online marketplaces, comparison tools, app stores or search engines expect 'natural' or 'organic' search results based on relevance to their search queries, not on payment by third parties. In line with the 2016 Guidance paper on Directive 2005/29/EC, the relevant provisions of that Directive should be clarified to make it clear that online platforms must indicate search results that contain 'paid placements', i.e. where third parties pay for higher ranking, or 'paid inclusion', i.e. where third parties pay to be included in the list of search results.
• Extending protection of consumers in respect of digital services. The proposal extends 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.
• Removing burdens for businesses. The proposal amends Directive 2011/83/EU by granting traders more flexibility in choosing the most appropriate means of communication with consumers. It will allow traders to use new means of online communication, such as web forms or chats as alternative to traditional e-mail as long as the consumer can keep track of the communication with the trader. It also removes two specific obligations on traders about the 14-day right of withdrawal that have proven to constitute a disproportionate burden. The first obligation is the obligation for the trader to accept the right of withdrawal even where a consumer has used an ordered good instead of only trying it out in the same way they could have done in a brick-and-mortar shop. The second obligation is the obligation for the trader to reimburse the consumer even before the trader has received the returned goods back from the consumer.
• Clarifying Member States' freedom to adopt rules on certain forms and aspects of off-premises sales. Whilst off-premises sales constitute a legitimate and well established sales channel, the proposal clarifies that Directive 2005/29/EC does not prevent Member States from adopting rules to protect the legitimate interests of consumers with regard to some particularly aggressive or misleading marketing or selling practices in the context of unsolicited visits by a trader to a consumer's home or 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 respect for private life.
• Clarifying the rules on misleading marketing of 'dual quality' products. The proposal amends Directive 2005/29/EC making it explicit 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.
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