III. EUROPEAN UNION APPROACH TO CONSUMER PROTECTION
A. Introduction
The European Union (EU) system is a separate supra-national system having its own parameters. The EU contains several institutions and services with overlapping sole responsibilities, competencies, and activities. These institutions are the European Pparliament, the European Commission and the European Council. The powers conferred on the European parliament give it legislative powers where in cooperation with other EU representatives they have the mandate to adopt EU legislation . (I think you might need to insert some info here about the difference between a regulation and a directive, unless you did that in Chapter 1)Also, parliament together with the European Ccouncil formulate agreements on annual budgets . Besides, the European Parliament has supervisory powers over the European Commission and other institutions . The European Commission proposes legislation followed by the implementation of the EU policies . The European Commission works under the leadership of a president. It is divided into departments with the main obligation of developing policies for specific areas. Each department is headed by Commissioners. The Commission is chaired by a 28 Commissioners, known as 'College’. The College is the overall decision-making organ on the Commission's political and strategic direction. With context to the organisation of a commission, it is considered to have been segregated into varied departments, which are termed asthe Directorate-General for Justice and Consumers (DG JUST). These departments are held accountable for implementing as well as managing the EU related laws, policies, and funding programs. The enforcement of consumer protection is ta responsibility held by individual countries’ nNational authorities, while coordination of actions at the EU level helps solve cross-border issues.Which department is consumer protection in?
The EU Council also works on representing member states’ governments through negotiations, adoption of laws, and coordination of policies among members, developing international agreements, and the final approval of EU’s budget. These institutions make up the core of the EU system, and their contribution is significant in promoting its influence around the globe.
B. The European Union Consumer Protection
The EU places significant emphasis on consumer protection and acts to that ensure there is a high level of consumer protection. Norbert argues that consumer and consumer protection have been defined in contract law directives as well as the Brussel Regulations in the EU. Brussel I and Rome I on procedural law, are examples of this emphasis, stating that EU states should implement specific rules and regulations to enhance consumer protection.
As a recent culmination of the long focus on consumer protection, in November 2019, the EU reinforced consumer protection rights following an agreement with the European Pparliament . According to the agreement, consumer protection is one of the essential parts of the internal market that guarantees higher standards of safety online when the customers are buying products and services. The agreement aims to expand access to a wide range of products and services that would exist for consumers in the European market. On basic consumer rights, the agreement provides that consumers should have the right to have their products replaced and repaired at no additional cost . It then elaborates on basic issues such as the right to get a refund or a reduction in cost. Also, the agreement provides basic principles governing these rights to control misuse.
Norbert argues that the EU activates consumer protection by using two measures.,Ffirst, the European Consumer Agenda which is strategically aligned with the EU’s 2020 growth strategy and secondly, through the 2014-2020 consumer programme which is a financial framework that complements the EU’s growth strategy. Norbert explains that the consumer agenda, as a measure, encompasses four primary objectives, including improvement of consumer safety, fostering knowledge, enforcement and securing redress and the alignment of policies to the challenges of economics as well as those affecting society.
You need a transition paragraph here telling us what you are about to do below. i.e. an overview of directives and regulations that preceded the culmination you describe above.
C. The EU legislation – Regulations and Directives
a. Directive 97/7/EC on Protection of Consumers in Respect of Distance Contracts(this needs to be focused solely and only on this directive. You are using and describing it because of history even if it has now been superseded. I want your description and evaluation of what it di and where
Directive 97/7/EC of 20th May 1997 was repealed on 13/06/2014 and has been superseded by Directive 2011/83/EC on consumer rights when it comes to distance contracts . The directive on distance selling, at the time, was the most crucial and challenging initiative that concerned clients ' protection. It applied to the transactions that are made between the businesses and consumers (B2C) . In this context, B2C was only used after the internet was introduced, despite the fact that the Worldwide Web (WWW) browser protocol at that particular time was not launched. At this particular time, online commerce did not exist. Later on, during directive drafting, the WWW came into existence, before which the directive was published in the final copy. The first e-commerce transaction was observed during this particular phase. The directive, therefore, focused on estimating the laws along with the regulations and the member states’ administrative provisions related to the distance contracts between consumers and the suppliers . In this section it is better thatI need you to describe what the former directive did before going to the new directive which replaced and repealed it.
This is owing to the reason that the commission’s action of making the directive on consumer rights succeeds the former directive of implementing the internet into the business practices. The new directive was prepared by considering the use of the online platform to connect the purchaser as well as the vendors instead of the physical settings. Also, the studies on this particular issue were being conducted since the year 1992, when the advancements in technology were given more prominence despite the fact that irrespective of the launching of the internet. The positive response of the consumers towards innovation could be observed by increasing their preference of teleshopping in comparison with the bricks along with mortar stores .
The institution of the contract regulation of the EU e-commerce can be categorized into two varied sub-directives, namely the Distance Selling Directive, which was enforced during May 1997, and the Electronic Commerce Directive that came into force on June 2000 . Although both the directives were somewhat related to one another, both played two different roles on an individual basis. On the one hand, the Distance Selling Directive protected the consumers at the time of purchasing products from beyond the geographical boundaries, the Electronic Commerce Directive aimed at controlling both the consumers and the businesses in handling their business contracts. Therefore, it can be stated that the EU legislation compares the level of the consumers while they are making purchases on the online platform and through the traditional means .
In this context, it can be asserted that distance selling, as well as the Electronic Commerce Directives, was established with similar objectives, i.e., promoting confidence of the consumers and stabilizing the internal market. However, it was observed that both of them operated with varied aims and objectives. Contextually, the distance selling directive was launched among the EU member states at the time, when consumers were not even properly aware of the usage of the internet. Later on, the intention of bringing about development band advancement in the work procedures, the organizations all across the world came up with the idea of conducting business with the support of online platforms. Hence, this led to the introduction of the e-commerce concept. This was initiated after the launching of the Electronic Commerce Directives only for safeguarding the customers. Besides, it also helped in setting up a dynamic as well as a flexible process for conducting business transactions with the support of the internet .
The Scope of the Directive
The e-commerce directive of the year 2000 was launched with the purpose of protecting the customers against any fraudulence on the online platforms, usually observed while making purchases. This e-commerce directive led to replacing the older concept of distance selling directive owing to the reason that these changes have adequately been discussed earlier, which later resulted in the emergence of the Consumer Rights Directive. This directive mostly applies to online events, and it is relevant to e-commerce. The European legislator enacted this directive in 2011 as a way to update the 1997 Distance Selling Directive and modernize it from all directions. This modernizing procedure also led to the foundation of the distance contract related norms, which further contributed to simplifying them and in removing the inconsistencies as well as bridging unnecessary gaps. Thus, the application of this distance contract resulted in estimating the regulation, laws, and the administrative provisions of the state members with respect to the relationship shared between the suppliers and the consumers. It is argued that with the change in the definition of the distance contract, its implementation in the practical world has also changed significantly. The ultimate definition, i.e., “contract is concluded within an organized scheme of distance communication” clearly portrays the intention of the commission to ensure a broader scope for covering all the smaller as well as the bigger contracts that take place amid the consumers and the traders. This directive is present in the actual legislation, as a result of which, it potentially takes into concern the financial services to be provided through the distance contract .
By protecting the clients, some states take different measures concerning distance selling, and this route shows detrimental effects on the rivalry between firms in the market. The measures taken by some states include; separate national markets for financial services, energy, and transport, stringent rules on vocational qualifications making it hard for qualified workers to find jobs in another EU country and variation of rules, standards, and practices when it comes to e-commerce. These measures indeed bring about rivalry among member states and firms in the market. Therefore, it is of the necessity of inserting basing at the community to reduce the elevation of the regulation under this sector.
The command applies to entire contracts that are a distance which means that any agreement concerning commodities agreed upon between the two parties under an adequately managed distance sale. The scheme governed by the supplier who purposes in maintaining the contract by making exclusive utilization of the distance communication setup to involve the agreement. It applies where the deal is carried out in an organized format. It does not occur where the business does not sell to customers via the distance communication methods as for example through fax, phone calls, letters, and emails.
Hornle insinuates that with the increased technological advertisement, customers do obtain information concerning the place and the offered orders in every position of the region. Thus, the purpose of the directive ensures coverage of a wide range area when it comes to an agreement. The development of the method does not involve the exhaustive list compiled. Instead, it focuses on principles defined that are valid including those that are not yet widespread in their usage .
A sentence here telling us how you will be describing the articles and why they are relevant.
Suppliers Obligation and Consumer Protection Rights(Article? Preamble?)
For a dealer to deal in distance contract trading, he or she must meet obligations as dictated by the directive. In perspective, the directive involves clients’ right manifesting itself due to failure on the part of a supplier in fulfilling their obligationsunder in the directive .
Prior Information (Article 4)
This states that a dealer must give a client consumercomprehensive and definite information concerning the distance contract. The data consists of the dealer's address and name, features, and characteristics of commodities supplied, the price of the merchandise including the taxes paid and the cost of delivery. Also, the procedure of payment, performance in delivery information is necessary. The withdrawal rights based on the directive must also be present. The cost of communication means, as well as the distance and its price, must be valid. Again, information concerning the duration of the contract after delivery of the product must be present in the data .
Written Confirmation of Information (Article 5)
This article requires clients to receive a written/signed confirmation concerning the information in the Article (4). The consumer must additionally obtain receivemore information concerning the procedures and conditions fororm carrying out the withdrawal right. It must rely on an Article (6), especially in the third part . Hornle et al. states that the consumer must receive the address of the supplier to file a complaint where need be.
The information provided has to contain after-sales service and guarantees. The dDate of cancelingcancelling the contract must be shown whether the contract is of the an unknown duration of time or a contract exceeding one year, and its duration is known. When the information is confirmed, that customers can receive the information by use of another medium. The information can be provided to the customer before or after buying but during the right when selling occurs.
The Right of Withdrawal (Article 6)
This article describes anthe essential element of the directive, which is the withdrawal right. It is crucial since the client is unable to ascertain that the commodity sold or the service received is of the required quality until it is actually delivered. The clients shall receive seven working days, whereby without if he cancelscancellation, he will not receive any penalty . Gavin SutterHornle et al. also explained that the only charge that the customer will get is the cost of returning that item. During this duration, theThe Directive allows Member States gets the opportunity to extend the time period of cancellation without penalty in it in their implementing legislation. When purchasing the commodity, the seven days start counting from the day of purchase of goods .
The services period occurs the day on which the signing of the contract occurs, as stated in the article (5). Failure by a dealer in fulfilling the above-stated obligation, the duration of time will increase to three months from the day when the goods were received. If the supplier performs his or her responsibilities in line with this period, seven days withdrawal period will begin on the day the fulfilment took place. If the consumers initiate or trigger the right to withdraw, the dealer will be obliged to refund the consumer his or her money. The cost that the customer will receive is the fee incurred by the dealer for returning the goods ; .
Based on the contract below, there shall be no withdrawal rights unless agreed upon by both the consumer and the supplier . For the provision of services, given that the performance begins as per the consumers' agreement, it must occur before the seven days end. The price of the distribution of the commodity-based on the fluctuation in the marketplace not controllable by the supplier will not apply . For goods supplied to the customers with the required specification, they shall not get returned after deterioration. For video or audio recording supply where the customer unseals it, the law shall not apply. Also, with respect to the distribution of magazines, newspapers, and periodicals together with lottery services, the return of the commodity shall not be applicable.
Performance and Binding Nature
As per Article (7), the suppliers must take at least 30 days to carry out their activities . However, the member nations shall getwere allowed to define the ashorter period in theirimplementing legislation. Regarding the applicable law and customer protection to the agreed obligations, the directive of an Article (12) shall play a crucial role. Based on this particular Article, the customer surrender rights made on by the transposition directive on him or her. The participant nations shall carry out the required law of a non-participant nation as applicable to the agreement. This means that the Member States must take the measures needed to ensure that consumers do not lose the protection granted by the directive by virtue of the choice of the law chosen by a non-member country as the law applicable to the contract. The law choice issue cannot be a consideration when it comes to the Directive Convention of Rome established in 1980; it established the law applicable to the contract is the law of habitual customer residence .
Exemptions from the Scope of the Directive
Article 3 of the Directive provides an in-depth insight into the various lobby interests around the directiveand the nature of certain agreements.. For example, Iit does not apply in areas where the contract has any relation to cash services. Again, itIt is not applicable in areas oftothe agreements concluded by for commercial premises or automatic vending. Similarly, it is not relevant to telecommunication. workers through which public payphones apply???. It cannot work does not apply in the construction of immovable properties or that relate to the immobile property right excluding for rental. Finally, it does not apply to the contract in which an auction has collaboratedoccurred . (what insight does this give about the lobbying? Are there rational reasons for these exemptions or are they purely interest based?)
Articles 4 to 7 (1) of the Directive do not work whereapply to contracts for foodstuff supply, goods, or beverages meant for daily consumption, which are is made available to the consumers' home or the workplace guided byrounds-men??.Consequently, its application does not regard addressareas of catering, transport, leisure services, and accommodation provision. The contract must become provided on a specific date regarding these services except when there is no outdoor leisure event when the dealer does not follow Article 7 (2) .
Assessment of the Directive
According to Conway , the commissioning of the directive on consumer rights highlights the discrepancies, which emerged during operations implementation of early directives regarding consumer rights.and while maintaining balance among the functioning of other directives. One of such discrepancyies is that minimum harmonization, as can be the case with Directives, has undoubtedly resulted in creating differences in the norms along with the regulationsin of the EU member states. It has further contributed tosummarizing erodingthe confidence level on cross-border shopping as well as on incurring higher business costs while trading with the other member states .
Further analysis by the commission showed that the consumer rights directive had not sufficiently tackled the issue of the distance contract process and which would create a loophole where consumer’s rights can be violated . One such examplecritique of the distance contract directive is the directive that providesthat it provides for an inadequate level of harmonization of rules protecting consumers. The Directive does not have provision for single rules when it comes to off-premises contracts and distances contract . From the evaluation and assessment of the Directive by the Commission, the commission was of the view that there were no clear rules when it comes to the delivery of goods and services.
Although the majority of the consumers appreciated the fact that the Directive protected them at the time of implementing the distance contracts of goods and services, the same protection was not sufficient enough to consider the changing times in technology and technology-related crimes such as hacking and cyber-crime. The Directive, therefore, must be simplified, and the online platforms should have been strengthened to avoid hacking and cyber-crimes, thereby making improvements in displaying information to the consumers. The Directive also intended to protect the consumers in case of a pre-contractual process, when the rights of withdrawal and content were considered by using the digital means .
Varied reform-related alternatives were also established by the commission with the revision of the suggested areas for the completion and simplification of the existing regulatory framework. These were performed in order to attain the final aim of framing an internal market for carrying out the ‘business-to-consumer’ trade effectively . The distance communication in this context includes all those channels that do not require the traders or the consumers to be physically present near one another during the end phase of a business transaction. It was also found to have mitigated the importance of an “organised distance selling scheme” in the implementation of the Directive . In the modern world of business, distant contracts are made for carrying out trades by using varied channels of distance communication, including internet, fax, mail order, and telephone calls, among others. Consequently, this has increased the space for the holders of the distance contracts to play their roles effectively within the business scenario of the EU member states .
From the assessment by the commission, consumers, and the business community, albeit necessary in e-commerce, the directive had not addressed some of the most predominant issues. For instance, the areas that could not be addressed by the Directive include lack of clarity when it comes to the interpretation of some of the provisions and articles, lack of harmonized contract making the process of goods and services in the EU, and not sufficiently tackling the ever-developing distance contract process. As much as the Directive has played an important role when it comes to distance trade, the areas mentioned above cannot be given a blind eye. Therefore, later on, it was evident that during 2011 (November), a new directive was passed, i.e., 2011/83/EU, as a replacement for two different directives, one of which was the 97/7/EC (“protection of consumers in respect of distance contracts”). The new directive not only controlled the aspect of distance selling but also covered the functioning of the Directive 85/577/EEC (“protects consumers in contracts negotiated away from business purposes”) simultaneously. However, the directive on distance selling could be recommended to maintain a full harmonized approach to promote economic integration and enhance the interest of the consumers towards making decisions on cross-border purchases. This would then enhance the confidence level of the consumers in the true sense. This further encourages them to face the standards that have been most critically questioned by literary scholars .
b. Directive 2000/31/EC on Electronic Commerce
Chronologically describing the proceedings related to theThe next big development in consume rprotection with respect to Ecommerce directive of e-commerce, it was initiated during April 1997, when the Commission issued a communication on “A European Initiative on Electronic Commerce,” which was followed by the passing of a “Proposal for a Directive on Certain Legal Aspects of E-Commerce” in the year 1998, primarily for integrating varied legal strands such as contracts, enforcement, liability, commercial communications, and licensing among others; Thisus, significantly helped in contributing to the creation of a stronger approach for facilitating the customers with a safe as well as a secured transaction procedure .
The European Parliament, the Commission further adopted an amended proposal in September 1999, which was finally adopted as the ‘E-Commerce Directive’ on 8th June 2000 . The directive came into force on 17th July 2000, only after obtaining feedback from the EU member states, consumer associations, industry along with the parties who had positive experiences from the same??.
The Directive also allows further input and evaluation byThe experience of the the commission after the adoption of the directive. is also given due consideration. The commission is also provided with the right to evaluate the national implementing legislation when it is in a draft phase so as to maintain its compatibility and balance with the Community law. This maintenance will further lead to the establishment of an Internal Market Framework, enabling e-commerce to progress and expand throughout theacross national boundaries .
The consumer associations in this context were observed to have played a vital role in maintaining the directive’s standards as well as the code of conduct, and this involved designing a flexible as well as a highly credible e-commerce framework. It further takes into consideration the factors for addressing every component to some extent so that effective performance as a part of the e-commerce, which could be adequately mandated within its internal market. Furthermore, the majority of the codes , as well as the framework as a whole, consider the “'Trustmark schemes' or 'labels,'” which varies largely with the change in the association . Hence, thisThe Directive is a result clearly portraysof the collaboration of the trade, consumers, and the professional associations for developing a flexible framework. Additionally, this also signifies that different consumer associations have their own schemes as well as codes even at the European level . The OECD Recommendation takes into account the provisions of maintaining privacy so as to avoid the risks related to security as well as product safety.
On the other hand, the provisions associated with the importance of consumer protection authorities, in this case, contribute largely in augmenting their potential to safeguard the consumers purchasing goods and/or services on the online platforms by maintaining proper flow of information and cooperating even beyond the geographical boundaries . Despite the fact that certain amendments were brought in the directive based on the feedback received from the member states. In this context, some of the nations opposed to certain norms such as Malta, Austria, Spain, Portugal, and Slovakia among others. The objections were primarily made in the context of full harmonization, to which a scrutiny reservation was maintained by Germany. On the other hand, the statement on the amended as well as the adopted text of compromise was issued by Portugal along with Austria. However, the directive was ultimately implemented in the year 2011 .
Scope of the Directive
The primary goal of the Directive is giving infrastructural aid towards smooth functioning in the European internal market. Also, it makes sure that both customers and businesses profit from the fundamental principles of the EU of freedom of establishment, services, and movement. Again, it focuses on customer confidence and legal certainty, which is the primary focus of e-commerce growth.
The EU regulates different issues to realize this Directive (Directive and Council, 2000). The problems include dispute resolution, commercial communication, and codes of conduct. Similarly, online contract formation, intermediary liability, information establishment, and requirementrequirement??.These issues represent a life cycle of activities of e-commerce. The life cycle involves a service dealer establishing itself, followed by commercial communication, offering of goods or servicesservices and the signing of the contract, provision of goods or services and after sales service.t. Additionally, liaising with brokers occurs, and finally, dispute resolution takes control.
The Directive’s scope is wide and applies to many service providers of legal information.. It covers a wide area of information services, including B2C, B2B, and free of charge services to clients. These areas get funded by sponsorship or the advertising revenue or procedures that allow electronic transactions such as online shopping malls or teleshopping of commodities. It applies only to the inside service providers of the European Union . The best area of carrying out business is where there is internet access that allows economic activities to take place. The website must support technology in the area.
According to Article 2 (c), an established service provider is the one who efficiently takes over an economic activity by the use of a fixed building for an indefinite time; hence an established service provider carrying out an economic activity must use a fixed building (official office) for an unknown period. This regulation is meant to ensure that the operations of the service provider are transparent and the service provider can easily be traced. The availability and use of a technological application to provide services that do not incorporate or include establishment providers . Even though the DirectiveAct gives information concerning aboutaddresses the global e-commerce dimension, it is essentialdoes so with a view to make sure there is consistency with global rules. An act isThus, it states that its rules are without prejudice to the discussion that results within international organizations such as UNCITRAL, WTO, and OECD.
Based on Article 2 (a), ‘information society services’ are defined as: services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC. According to Article 1(2) of Directive 98/34/EC, as amended by Directive 98/48/EC, it is any service that gets provided at a distance for payment using electronic means by client request. The other definition in this article about a service provider is any legal or natural person who provides engages inthe activity of information provision. Consequently, a service recipient is a natural person who uses data society service in seeking details or making it retrievable.
A consumer is a person who is a trade, profession, or business and acting to benefit from them . Based on Article 4, there should be no imposition by the Member States of a unique authorization scheme for service provision. It only occursThe only circumstance when such authorization is permitted is where operation without permission of the service in generalis not allowed where there is an authorization of the required service is not prohibited; for example, when using a license to sell alcohol also takes place in an electronic surroundingonline.
Information Requirements
This is additional information rather than the one established by Community law. It provides obligations that must meet the selling of the commodities and information supply to recipients by service providers.
General Information (Article 5)
This Article demands the provision of the following information by the service provider to the client for secure, permanent, and direct accessibility. The data includes the geographical address of the area, the name, the number of trade register, the email address, the supervisory authority, the VAT identification number, and details of the professionprovider. All these details appear in the first section of the Article. The second section demands the service provider to indicate the prices of commodities clearly, including the delivery and tax cost.
Commercial Communications (Article 6 and 7)
It entailsThese articles address advertisements and direct marketing, which are crucial for any company. A lot of money and effort are significantgoes into in the publication advertisingof products in the offline world. In the electronic environment, however, this approach can be freeis much cheaper, allowingfor makingfor global access to customers accessible globally. Given that customers want to read emails, they must download themHowever, given that customers may receive a deluge of communication such as in email e.g. spam, giving customers a choice as to whether to read or download such communications seemed necessary. ., which costs them more money for the services not required???. To avoid such inconveniences for clients, Article 6 recommends requiredthat the dealer to openly identify commercial communication that constitutes of or are part of the informations. .
Again, commercial communication show whom the information identifies the provider, including promotional offers and competitions. Article 7, on the other hand, recognizes the spam communications by the emails which get received by a person not wishing to obtain them. Given that an organization is not a member of the register, then the company that manages the registry does not send the mail to these organizations.
The Directive forbids the receiving of this information by customers by ensuring that the dealer respects the registers. Because the country has the legal rights of such a document, all firms should first consult it. The Member States can create that document using an indirect duty, although the responsibility to develop it does not exist.
Online Contracts (Article 10)
The Article gives requiresprior information before the conclusion of a contract in the first section. The information to be provided by the dealer includes the distinct technical procedures needed to complete a deal, information if about whetherthe owner will file the agreement is presented, procedures for identifying input errors, correcting the said errors and language offered in the conclusion of the contract.
Only a few sites provide many languages in concluding the contract. It becomes expected that this activity will change, especially if the translation can occur automatically by use of the software. The Directive in Article 10 (2) asks the dealer to indicate the necessary codes of conduct in that heto which he must subscribe and he must give informationconcerning the use of electronic, to the user??.If the dealer uses conditions , there must be the provision of these terms to the client based on Article 10 (3) such that the customer can keep and reproduce them, thus ensure that the client has an idea of what he or she ought to do or adhere to concerning the contract, which helps to prevent a situation whereby the client will enter into a contract oblivious of the legal consequences. A client having access to those terms enables him or her to have a point of reference when it comes to the contract.
Article 10 (4) excludes the application of (1) and (2) to the contracts that got were concluded entirely by email exchange or by other communications . Also, Article 11 gives some principles that relate to the placement of order whereby part (1) states that the Member States shall enhance, except when agreed upon by other members for example consumer, that in areas where the consumer of the service gives his order through technological methods, the principle applies . The first principle is that tThe service provider has to acknowledge the receipt of the client's request without electronic hesitation in the first principle.. This principle enables consumers’ requests to be accepted and acknowledged without delay by way of any means, including email. It protects a consumer by making sure that the consumer is not left in a dilemma, wondering if his or her request was received or not, and it also ensures that a consumer gets services requested in a faster and efficient way.
The second one appears In Model Law UNCITRAL that acknowledges and orders the receipt on e-commerce when received by the parties . On the other hand, Article 11 (2) focuses on the identification and correction of input errors(how? What does it require?). After the conclusion of the contract, its determination ceases based on the way the implementation of the Directive takes place. The outcome of the agreement gets determined by the Member States, who then may offer in the offline world the conclusion of the contract; thus, protects consumers who innocently are not aware of the whole process of contractual arrangements from being maltreated or mislead by producers during the making of a contract. Some producers may want to unfairly enforce a contract to the detriment of a client or consumers hence European Union member states step in to prevent such actions from taking place by using the principle that one cannot be a prosecutor and a judge in his or her own case.
Additionally, they member statesmay provide opportunities for correction of errors within the required period. This change can occur in the contract in an offline environment, which is important to the consumer as it allows the consumer to rectify errors in the contract that will work to his or her disadvantage in case a dispute arises. Hence a consumer is given a lifeline to redeem himself or herself from an error or a mistake made in a contract.
Article 11(3) focuses on individual communication, whereby it limits the application of the deal through email exchange. An Email being an instantaneous mode of communication, many producers or service providers may use it unfairly to enforce deals made with consumers, and hence Article 11 (3) plays a critical role in protecting consumers from such unfair vice. Also, it is essential to note that emails are prone to hacking and cyber-crime; hence hackers can easily break into the email address of consumers and make a deal not known by the consumers to prevent all these; limits are set when it comes to deals made through email exchange.
Small conclusion on this and how it addressed consumer protection.
c. Directive 95/46/EC on Personal Data Protection
The Directive 95/46/EC Personal Data Protection was repealed on 24/05/2018 by Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and the free movement of such data . It is regarded as the first piece of legislation to bring together data protection laws within the European Union, although it took a long while before the Member States changed their laws to implement the Directive. The framework of the Directive 95/46/EC Personal Data Protection has been designed in a way so that the personal data of the member states are processed in a fair as well as a lawful way. There are various sections and articles under this Directive that play a critical function in protecting EU data and maintaining its privacy to the maximum possible extent . For instance, Articles 16 and 17 under Section VIII of The Directive 95/46/EC Personal Data Protection focus on maintaining confidentiality and security of data processing, respectively, in order to protect any valuable data. Based on these articles and sections, the rationale of the EU data protection policy can be determined as enhancing essential rights and freedoms by ensuring privacy in the processing of personal data. In the case of e-commerce, The Directive 95/46/EC Personal Data Protection has an essential role to play not only in determining the confidentiality as well as the security of data processing but also in notifying the supervisory authority to keep any valuable data private. Since transparency is regarded as one of the critical factors behind the success of any activity related to e-commerce, the significance of The Directive 95/46/EC Personal Data Protection exists in maintaining privacy along with secrecy to the maximum possible extent .
The Directive gives protection to natural persons' through that include.. It is in agreement that data protection is private and the privacy applies worldwide. Firms conducting businesses worldwide are provided with private data from different countries in order to get the best privacy regulations and participate in e-commerce. Hence the Directive prohibits transmission or sharing of private information to countries that do not adhere to the EU requirements when it comes to protection of privacy. During the year 2015, a framework was designed based on the agreements, which integrated “new data protection rules, the EU General Data Protection Regulation”. Contextually, this framework is highly collaborative and modern in its approach. Additionally, this framework covers all the areas throughout the EU. It, therefore, contributes significantly toreplace the Data Protection Directive with the General Data Protection Regulation, which is for re-constructing the key principles of the previous directives along with the integration of “more specific data protection requirements, a global scope, and stiffer enforcement as well as non-compliance penalties.” In this context, it acts as one of the most comprehensive as well as the law of consumer privacy. This regulation helps in facilitating individuals on online platforms with complete security, along with protection from the issues associated with data infringement and other e-commerce related risks .
The scope of the Directive
Personal data is any information that relates to an identifiable individual who gets recognized directly or indirectly by use of an identification number or other factors that relate to mental, physical, economic, physiological, social, or cultural identity. On the other hand,Additionally, the Directive covered personal data processing which is any activity carried out by an individual concerning personal data automatically through the collection, saving, arrangement, storage, alteration, accessibility, consultation, application, transmission, dissemination, or destruction.
Principles of the Directive relating to Data Quality
It explains five principles that relate to data quality based on Article 6. The Directivedirective E. U. "95/46/EC explains that the Member States must guarantee that the personal data became lawfully and reasonably processed and collected for a particular purpose. The data must not exceed the proposed reason for the collection. It must be accurate and kept so that it reflects the current situation in a precise manner, which andotherwise must get rectified where mistakes are present. Finally, the data must be in a form that maintains the identification of clients as required.
Legitimate Data Processing
Under article 7, situations are given on when the processing of personal data can get legalizedis legitimate. Data can become processed, provided that the client consumerhas provided unambiguous consent. Consequently, the processing occurs where the contract performance is necessary to proceed to other steps before entering a contract. It is crucial to comply with the regulations and to protect the vital preferences of the client. It is also necessary for task performance that caters to the public interest as well as for legal matters pursued by the dealer.
Why did you just stop here? Tell us why. Are these the only articles relevant to consumer protection? If so, provide a short little conclusion and transition to the enxt section
d. Directive 2002/58/EC on Privacy and Electronic Communications
This Directive harmonizes all the provision of the countries necessary for ensuring equal protection of legal rights for privacy concerning personal data processing in the e-communication sector. Again, it provides the right movement of this data. Moreover, this Directive facilitates another Directive called 95/46/EC. Both Directives give the protection of the legal interest of owners of the data. It is relevant and available in networks, for example, the internet which exists in the community. It gives many obligations that the provider must follow when passing a publication through e-communication means. These obligations include;
Network security (Article 4)
Under this article, there is a requirement that the givers affirm the safety provided services and networks. The provider must take the appropriate organizational and technical initiative in the safeguarding of these services. The security level should be high, based on the risks involved. Given that the provider cannot offer the security required, they must tell the users of the risk involved and instruct them on the proper measures to take in ensuring communication safety, for example, the use of encryption .
Confidentiality of Communication (Article 5)
Corresponding to data secrecy, aid in the protection of the message in letters considers the prying eyes from transportation to publication in the postal areas. Under Article 5 (1), the service provider has to guarantee that traffic data and communication will be kept entirely confidential. He must prohibit listening, recording, storage, and other activities that relate to the retrieval of the message by unauthorized members. This activity must be parallel with Article 15 (1), where the person gets the message from the relevant users.
Sophisticated phones and personal computers that have open software as well as larger storage capacity, gives the user many new chances for communicating over the public network. However, they also offer third parties numerous opportunities for gaining information accessibility, for instance, the information stored on terminal equipment or to carry out the installation on other peoples' computers, for example, cookies. These invisible intrusion forms have a role that varies from viruses to information theft, copyright infringement verification, and giving reports for marketing.
Again it involves checking for permission to access certain documents that are restricted or recording the user's choices. The uses are neither harmful nor useful to the clients, but other agendas are may be threatening or very dangerous. In most cases, the users do not know how to access their computers and perform the task of storing programs on them; hence they do not possess control of those activities. This issue is solved by Article 5 (3), which demands the presence of terminal equipment for users to access or to store information. Mantelero explains that the user must receive a clear indication concerning the purpose of the invisible activities and given the opportunities to decide concerning the issue. It enables them to determine the kind of equipment to allow accessibility and to determine if some are accessible or not. This provision applies to the Trojan horses and spyware. It also applies to cookies that are present on the website.
Traffic Data (Article 6)
As people make phone calls, send messages or emails, information trails occur within the social networks used for such communication. This information is crucial to facilitate the safe arrival of the SMS or calls to the required destination. Traffic data may include information that refers to the duration, routing, time, or volume of communication. Again, it goes further to the usage of the protocol, terminal equipment location of the sender and the receiver to the entrance and exit networks from the beginning to the ends of the connection.
Traffic data are both susceptible and significant for communication purposes. They provide an image of a person’s habit, contact, what the person does, interest, and where the person is. Moreover, traffic data gives a description of a person about his/her life at a more significant percentage. This activity occurs in an online procedure, which saves the details as they happen daily. When no longer needed, the erasure of these messages takes place. The data for interconnection payments and billing may get processed only at the end of a particular period that is lawfully acceptable. The traffic of data may get used for marketing purposes, but the customers must provide consent.
Location Data (Article 9)
Location data is data that shows the geographical location of the terminal equipment. Location data may exist as very broad, for example, indicating the area where the user is, or very specific, showing the exert position of the user. Some of these data are part of data traffic hence crucial when it comes to communication transmission or connecting individuals. Thus, treated in the e-communication and privacy fields, Directive acts as the traffic data.
Precise location data can be necessary for the provision of services, which include locating stolen properties, route guidance, and tourist information, among others. This information is relevant for many emergency services, for they assist in addressing such situations trough rescue teams. It gets processed with the user's consent or when said to be anonymous. Based on this scenario, the provider must give details to the subscriber.
Unsolicited Communications (Article 13)
Under Article 13 (1), his Directive needs the State Members to prevent unsolicited communication from getting sent via emails or fax or even MMS or SMS unless there is prior permission to do so. It does not apply in cases where the obtainment of contact details for sending SMS messages or email exists in the sale context. The company where the customers' relationship exists obtains the data and use them in marketing such products similar to those the customer purchases. Nevertheless, the company must show transparency in the data collection to be able to do marketing directly and to give right in opposing.
Moreover, the marketing messages must be readily accessible, enabling the customer to prevent more messages. The opt-in method is mandatory when using fax, email, or SMS addressed to the natural person for the direct marketing campaign. This activity is optional and must be relevant to the legal persons. The Member States have the obligation of choosing between the opt-out or opt-in system. In all these methods of addressees, the natural and legal person, as in Article 13 (4), prohibits the use of SMS or email to carry out the direct marketing service. The method disguises or conceals the sender's identity and shows an invalid address that may hinder the recipient from ceasing to receive the messages. When making telephony marketing voice call instead of automated machines, the Member States may also decide between the two methods.
Should Tthere should be a big section on the EU Data Privacy Regulation here?
Also, Shouldn’t tthere should be a bog section here on the Directive 2011/83/EC on consumer rights that superseded the earlier one?
D. The Situation of E-consumer protection in the EU and subsequent case law on consume protection
Polański argues that the cyberspace’s challenges present in the legal environment involve the criteria of determining who controls the other????in the EU. There are problematic concerns regarding the vesting of controlling powers, whether such powers should be vested in the service country of origin or the country of receipt. Also problematic is the delineation criteria of the legal systems that are competing amongst Europe’s member states. Polański, further argues that private international law is marred with imperfections in finding solutions to problems arising in cyberspace’s private law. In light of the above imperfections, Polański discusses the concept of the country of origin, amidst the EU law’s harmonisation and unificationand concludes what?.
The EU legislation involves regulations and Directives . Jana explains that 1975 marked the first year when the EU council adopted programmes for protecting consumers. Under this programme, five basic rights of the consumer were defined, including the right to health and safety protection, economic interests’ protection rights, right to education, right to claim damages as well as the right to representation by qualified legal personnel. Also, the programme has given rise to EU directives on consumer protection, which is a legal instrument for protecting consumers; however, its application is not direct, since it requires transposition into each member states’ national laws. The following are the cases of ECJ and CJEU adjusting and interpreting the Regulations and Directives.
a. Misleading and Comparative Advertising Practices
Directive 2006/114/EC , on unfair advertising, encompasses misleading as well as comparative advertising. This directive seeks to protect traders against the consequences of unfair advertising. Also, the directive conditions circumstances for the permissibility of comparative advertising
Carrefour Hypermarchés SAS v ITM Alimentaire International SASU, Court (Second Chamber) of 8 February 2017
The above case amounts to misleading because it involved an aspect of misleading as well as comparative advertising, where the large size of a campaign promoter was affected by the campaign by objectively comparing the prices of different stores for the same product. This case sought the court to interpret the EU Parliament’s Directive 2006/114/EC Article 4(a) and (c) regarding misleading as well as comparative advertising. Also, the case sought an interpretation of the EU Parliament’s Directive 2005/29/E on the internal market’s commercial practices of B2C. Further, the suit sought that EU Parliament’s Directives, 84/450/EEC, 97/7/EC, 98/27/EC, and 2002/65/EC on unfair commercial practices be amended.
b. The right to full information
Article 6 of EU’s Directive 2011/83/EU requires that for contracts conducted online, before they are legally binding, the trader should inform the consumer all material facts about the product/service. This information includes product/service features, price, and also contextual information of the seller, e.g., name, geographical address, et., Cetera. Also, the trader should tell the consumer withdrawal terms, if any.
Bundesverband der Verbraucherzentralen und Verbraucherverbände — VerbraucherzentraleBundesverband eV v Amazon EU Sàrl,10 July 2019, First Chamber
In this case, reference is made to a preliminary ruling regarding the trader’s obligation of indicating its telephone and fax number. In its judgement, the court held that EU Parliament’s Article 6(1)(c) of Directive 2011/83/EU, amending Council Directive 93/13/EEC and Directive 1999/44/E as well as repealing Council Directive 85/577/EEC and Directive 97/7/EC were interpreted that distance traders have to give their telephone in all circumstances.Why? We are as interested in the reasoning as the outcome. Why was it even an issue?
The case contributes to consumer protection because it interprets consumers’ right to access information about online traders in the EU.
c. The Right to Withdrawal
Article 9 of Directive 2011/83/EU states that the consumer can withdraw from an online contract without any explanations or to incur any costs apart from those stipulated in Article 13(2) and Article 14, within 14 days of sealing the contract.
EU v PE Digital GmbH (Case C-641/19), 30 August 2019,Amtsgericht Hamburg (Germany)
The question raised sought to clarify on Article 14(3) of Directive 2011/83/EU, on whether the costs to be paid by the consumer in withdrawing from a contract should be proportionate to the time taken before the consumer informs the trader of the intention to withdraw calculated on the basis of pro rata temporis.
This case contributes to e-commerce and protection of consumers because it sought the interpretation of Article 14(3) about the costs to be incurred when a consumer withdraws and the terms of withdrawal.(What was the outcome? What was the decision? What was the reasoning?
d. Fairness and Exclusion from Assessment of Consumer Rights
This provision originates from Article of EU Directive 93/13 and contends that devoid of prejudice to Article 7, a contract’s assessment should take into consideration the nature of goods/services for the contract’s conclusion, and the prevailing circumstances at the time of concluding the contract, as well as, other contract terms. Further, the Directive stipulates that unfair terms’ assessment should relate to neither the contract main subject matter’s definition nor price and remuneration’s adequacy vis-à-vis goods/services supplied in exchange.
Gyula Kiss, CIB Bank Zrt v Emil Kiss, Gyuláné Kiss, 15 May 2019 in Kúria, Hungary (Supreme Court)
In this case, Mr Gyula,Mr Emil, Ms Gyuláné, and CIB Bank Zrt. were in dispute concerning the unfairness of foreign currency loan agreements; thus, challenged requirements enshrined in 1993 Directive, Articles 4(2), and 5.
e.d. The Right to Effective Protection from Unfair Contractual Terms
According to the 2015 Consumer Rights Act, contract terms, as well as consumer notices, have implications for the contracting parties . Consumers’ protection against unfair advantage derived by a business by unfair wording, is envisaged in part 2 of the 2015 Act. The act stipulates that the wording should be fair and transparent, thus enhance consumer informed decision-making.
Case of Thompson vs. London, Midland and Scottish Railway Company
The plaintiff, in this case, was injured while she was stepping out of a train. The railway company had placed several notices to alert passengers on the terms and conditions of the company. However, they did not include terms on personal damage and negligence. Although the train tickets indicated personal injury rules and negligence terms as well as other terms indicated in the company policy . Despite the display, the plaintiff was illiterate and was not able to read the terms and conditions on personal injury. Thompson argued that it was the responsibility of the railway company to incorporate an exclusion clause that was absent in the policy at that time . Thompson suggested that the railway company should have included the excluded clause at the time of making a contract. Appeal’s Court held that the clause was incorporated, and there was no duty for the railway company to ensure that the clause was brought to the attention of every traveller. The company was not liable to taking responsibility for personal damage while trying to bring the clause to the consideration of a rational person who was unaware . Thompson was not successful in her claim for damages caused by the railway company. The law provides that for an exclusion clause to be accepted, it must be part of a contract between two or three parties. For an organization or a single entity to be liable, the document containing the exclusion clause must be part of the documentation of the contract. The documentation should not just become a mere acknowledgement of receipt displayed.
f.e. The Right to privacy in personal data
Directive (EU) 2016/680 stipulates that when a consumer’s data is used by authorities to enforce the law, his/her personal data will be protected and remain private
E. ECJ and CJEU Case lawthe cases above are alo ECJ case law.
VKI vs. Amazon, 28 July 2016, COURT (Third Chamber)
The recent 2016 judgement of the Court of Justice of the European Union (CJEU) in VKI vs. Amazon concerns consumer laws and data protection issues associated with it . In this case, the court of justice had to decide which data protection law will be applicable when goods are
sold across borders while being within the EU countries. The case challenged the powers of institutions and states when protecting consumers in the internal digital market .
Facts
The case involved Amazon, which is a well-known online selling company with branches all over the world . Amazon’s branch in Luxembourg, which conducts sales with Austrian customers, had issues with data privacy issues. Every time a customer buys goods and services in Amazon, the transaction is unilaterally governed by Amazon’s terms and conditions. A consumer protection body (VKI) in Austria sought to challenge the unilateral conditions in Luxembourg, Austria. The Austrian law provides more and higher protection laws for consumers than the ones applied in the Amazon branch . Amazon’s response countered that it has no legal connection with Austria since it is not established in that country. There were issues regarding data protection and clauses regarding the terms and conditions applicable. VKI argued the case by implying that Austrian data protection laws should be applied. Since the matter seems like a contract law governed by Rome I regulations, an injunction might bring the case closer to an effective outcome. The authority and the court asked the parties about the impact of unfair contract terms on the jurisdiction clause.
Judgement
The ECJ dealt with the matter and the questions of Rome I and II regulations together. The Brussels I Regulation provides that country’s court, and laws have powers in cross-border cases. According to EU law on recital 7 under the Rome I Regulation, the provisions of the regulation should be consistent with the Council Regulation. Therefore, enforcement is necessary when it deals with civil and commercial matters . Thus, the law applies to contractual obligations like the one for Amazon. Article 4(3) of Rome II regulation provides that the law of another country is clear if it is manifested and closely connected with customer protection laws. The ECJ considered the Directive 93/13 on Unfair Contract Terms, whose principle says that a contract without individual negotiations, encompassing prior negotiations between the buyer and the supplier is unfair based on detriment it causes on the consumer of significant imbalance.
The Court then considered the Unfair Contract Terms Directive (Directive 93/13), which holds that a term of a contract that has not been negotiated individually, i.e., the seller, drafts it in advance, detrimentally imbalances the consumer and thus it is unfair.
The court ruled according to article 4 of the data protection directive, which states that each member state regulates processing carried out in the context of activities of that state. On determining whether Amazon was established in Austria, the court referred to the judgement made on Weltimmo. The judgement was ruled on the basis of the undertaking. In this case, the branch does not count as an undertaking . The court ruled that it is the national court that has jurisdiction over the subject matter to determine, given the case’s underlying circumstances, it met the threshold good faith, balance as well as transparency . Nonetheless, the court said that its jurisdiction under Directive 93/13’s provisions was to elicit the criteria for examining the thresholds.What was the outcome?
Bas Jacob v SurinaamseLuchtvaart, 11 May 2017, Court (Eighth Chamber)
This case involved delivering a ruling whether consumers can be compensated or assisted in case a flights carrier cancels scheduled flights and the flight carrier informed the online travel agent who also told the customer through email ten days before the flight. The flight contract was entered into through the online travel agent.
According to the judgement, EU council’s 11 February 2004, Regulations on Article 7 EC No 261/2004, as well as 5(1) (c ), was interpreted that a carrier of flights is liable to compensate for cancelled flights and no communication made to a customer. This provision, the ruling states, includes instances where a flight carrier communicates about cancelled flights to the online flight agent, who fails to communicate the information to the customer, before two weeks of the scheduled flight.
Jana v FIBO Group Holdings Limited, 3 October 2019, First Chamber (Nejvyššísoud, Czech Republic)
This case involved a preliminary request on the ruling on EU Regulation Article 17(1) No 1215/2012 on the jurisdiction on the notion of the consumer over consumer contracts involving a natural person executing international exchange transactions through a brokerage firm. In this case, the judgement held that EU Parliament’s Article 17(1) No 1215/2012 classifies as a consumer any natural person, who, by a contract with a brokerage firm, concludes a contract on an international foreign exchange (FOREX).
DenizBank AG v VereinfürKonsumenteninformation, 5 April 2019, ObersterGerichtshof (Austria)
Under this case, the questions referred to revolved around the interpretation of Directive 2015/2366/2015 Articles 52 (6)(a), 54 (1) on payment service, whether, under the directives a user is deemed to have agreed on conditions’ proposed changes unless he/she notifies a service provider of non-acceptability of the proposed changes prior to entry into a contract. The second question challenges Directive 2015/2366/2015’s interpretation to mean that personalized multi bank card is regarded as a means of debiting low-value payments from relevant consumer accounts constitutes an instrument of payment. Thirdly, the case referred to the question 2015/2366/2015 Article 63(1)(b) whether its interpretation would mean the establishment of derogation precedes a service provider’s reliance based on objective state’s technical knowledge, in that a payment instrument does not curtail its further use.
F. Analysis of EU Laws and Regulations
The EU laws and regulations have some of the strongest terms on consumer protection in the world. However, recent cases like the diesel case scandal have shown that practice can be hard to be enforced. In April 2018, the European Commission proposed a new deal for consumers to benefit from their rights fully. An effective evaluation of EU consumer protection law reveals that EU citizens enjoy consumers benefit from one of the highest protection laws in the world with few issues to be improved . In 2016, only one in five consumers had a complaint, and only a third of them filed the issue. A recent study of six markets, including the mobile phone service industry, clothing, electricity supply, and loans, demonstrated the estimate of detriments to consumers in EU ranges from 20 to 28 billion Euros in one year. The EU Commission proposed two new rules to enhance efficient and effective consumer protection. One is the modernisation of EU consumer protection rules . Modernisation focuses on various consumer issues such as harmonising penalties from infringements, increasing transparency in e-commerce, and expanding protection for consumers.
The recent 2018 proposal will amend 4 of the significant data protection directives, including consumer right directive, the unfair contract terms directive, the pricing directive, and the unfair commercial right directive. The law encourages consumers to file a complaint when they find an issue with their purchases. It also aims at extending consumers' protection online as well as clarify that misleading consumer information is prohibited under EU law. It is in this regard that EU regulations are superior to any other laws in the world relating to consumer protection. Consumer laws online have been substantially strengthened under the new rules found on the new online rules . Consumers under the EU member states have been clearly informed whether to buy products or services online from online traders or private marketers. Awareness has been created, and most of the consumers know whether they have been protected under consumer laws or not . Unlike other continents, regions, and countries, EU laws on consumer protection have been advanced in nature and application. Every consumer has a legal guarantee to return and get a refund from social media platforms. Customers can request penalties to be subjected to unfair online dealers if they commit an infringement . However, consumers have been controlled not to return used products, and these limit the consumer protection policy. Guidance concerning consumer protection has been made available in most government and company social media platforms .
In general, the policies on consumer protection under the EU law are more effective, efficient, and protective. This generally ensures that EU member state citizens are protected from misleading data and information on goods and services under sale. Hence, the overall nature of the law makes it act as control laws for other regions and countries of the world.
