HomeConsum-actorsConsumer protection, new EU directive approved

Consumer protection, new EU directive approved

The new EU directive to 'modernize' and ensure the effectiveness of consumer protection rules has concluded its approval process. (1) Headlights on dual qualityecommerce e website. Million-dollar sanctions and biblical times.

Consumer rights, needs

The European Commission - in the context of REFIT program (REGulatory FITness and performance) - had examined, in 2016-2017, the adequacy and effectiveness of the current rules on consumer protection. (2) Concluding that the remedies provided for therein are poorly applied due to the lack of knowledge of the legislation by professionals and consumers. (3)

The measures already taken at European level to spread knowledge on the rules in question and to promote their implementation have proved unsuitable for the purposes. Also due to the shortcomings and differences in the implementation, in the individual member countries, of directives 2005/29 / EC (unfair trading practices) and 2009/22 / EC (injunctions to protect consumers). (4)

New Deal for Consumers, the initiative

The initiative New Deal for Consumers was announced by the European Commission on 13.9.17. (5) With the aim of strengthening the protection of consumers and users, also taking account of the largest risks related to ecommerce and web services. The proposal for the directive in question (adopted by the Commission on 11.4.18) fits into this context.

'It's about protecting consumers by making use of greater transparency and strict enforcement of the rules in the event of deception. Thanks to this 'new deal', consumers will know what they are buying and from whom.

Thanks to this agreement, consumers should no longer be misled by the fact that different products are presented as identical. Traders who continue to cheat will face severe penalties.

The 'new deal' will also strengthen the protection of online consumers by making Internet shopping more transparent. ' (Frans Timmermans - first vice president of the Commission - and Vera Jourová, Commissioner for Justice, Consumers and Gender Equality. See note 6)

The reform in progress

The new directive intervenes to modify the previous four:

• dir. 93/13 / EEC, on unfair terms in consumer contracts,

• dir. 98/6 / EC, on the protection of consumers with regard to the indication of the prices of the products offered to them,

• dir. 2005/29 / EC, relating to unfair commercial practices,

• dir. 2011/83 / EU, on consumer rights

Sanctions, the backbone of the reform

The penalties they are the backbone of the reform. Directives 98/6 / EC, 2005/29 / EC and 2011/83 / EU already obliged Member States to establish 'effective, proportionate and dissuasive sanctions'. Towards professionals responsible for widespread infringements at national level or infringements widespread at Union level. In fact, however, the sanctions provided for in the various countries have different weights and scope, often unsuitable for dissuading dishonest operators. (7)

The new text it is therefore more specific, in requiring Member States to take all necessary measures to ensure the effectiveness, proportionality and deterrent effectiveness of the sanctioning regimes. Who must consider (at least) the following criteria:

a) nature, gravity, extent and duration of the violation,

b) any action taken by the seller or supplier to mitigate the damage suffered by consumers, or to remedy it,

c) any violations previously committed by the seller or supplier,

d) financial benefits gained or losses avoided by the seller or supplier as a result of the infringement (where data is available),

e) penalties imposed on the seller or supplier for a similar infringement in other Member States. Based on the information made available thanks to the procedures established with reg. EU 2017/2394,

f) any other aggravating or mitigating factors applicable to the circumstances of the case.

Million-dollar fines

The violations relating to unfair contractual terms, unfair commercial practices and infringement of consumers' rights must be sanctioned with penalties of a maximum amount of at least 4% of the annual turnover of the seller or supplier in the Member State or Member States concerned.

The member states however, they have the right to provide for penalties of even greater amounts (but not less, please note). In cases where information on the annual turnover of the seller or supplier is not available, Member States introduce the possibility of imposing financial penalties of up to € 2 million or more.

Dual quality

Misleading business practices, under the new directive, they also include the hypothesis of products presented as the same but of different quality, in the various member countries. This is the case of the cd dual quality, which arose precisely in the food sector (dual-quality food). (8)

It is deceptive 'any marketing activity that promotes a good, in one Member State, as identical to a good marketed in other Member States, while this good has a significantly different composition or characteristics, except where this is justified by legitimate and objective factors'(new directive, art. 3.3.c)

Rights protection in searches and transactions online

In distance contracts, the consumer must have access to all the necessary references to get in touch with the professional. (9) Namely name or business name, registered office and physical address, telephone, fax and / or Email and any other means of communication indicated (eg social network). Date and time of messages must be recorded and stored on durable media.

The identity - professional or private - of the seller online it must always be clearly communicated already during the presentation and / or insertion phase of the offer. So that the consumer can better evaluate the reliability of the supplier. Regardless of the feedback that, as seen, are often false and uncontrolled.

The withdrawal period - 14 days - can be extended to 30, by member countries, for contracts concluded in the context of unsolicited visits or excursions organized by a professional to the home to promote or sell products. For the express purpose of protecting the legitimate interests of consumers with respect to aggressive or misleading commercial or sales practices. (10)

In search engines, i marketplace and web operators in general must always indicate whether the search result is sponsored by a professional. Consumers must also be informed about the parameters that determine the ranking of search results. (11)

Biblical times

The 8.11.19 the Council approved the text of the provision on which an agreement had already been reached, last March, with the European Parliament and the Commission. Following the formal green light of the Strasbourg Assembly, the directive is published in the Official Journal and enters into force within the following 20 days.

Biblical times however, they are foreseen for its implementation. Member States have 24 months to introduce the changes introduced to the directive into their respective legal systems, guaranteeing their effective implementation within 30 months. That is to say that consumers in the EU will receive the greater protection mentioned above in the second half of 2023.

Dario Dongo and Giulia Caddeo

Footnotes to the story

1) The text of the directive on https://data.consilium.europa.eu/doc/document/PE-83-2019-INIT/en/pdf

2) It is the task of the European Union to contribute to ensuring a high level of consumer protection (TFEU, Article 169, paragraphs 1 and 2.a, 114)

3) See note 1, recital 2

4) Idem cs, recital 4. Dir. 2005/29 / EC was implemented in Italy through the Consumer Code (Legislative Decree 206/05 and subsequent amendments)

5) v. https://ec.europa.eu/info/law/law-topic/consumers/review-eu-consumer-law-new-deal-consumers_en

6) https://ec.europa.eu/commission/presscorner/detail/it/IP_18_3041

7) See recitals 4 and 6

8) See EC Communication 29.9.17. On Dual Quality Food see previous articles https://www.greatitalianfoodtrade.it/etichette/dual-quality-foods-in-europa-l-ungheria-chiede-chiarezza-in-etichetta,

https://www.greatitalianfoodtrade.it/consum-attori/dual-quality-foods-juncker-alza-la-voce, https://www.greatitalianfoodtrade.it/consum-attori/dual-quality-food-prima-analisi-della-commissione-europea

9) Amendment to directive 2011/83 / EU, article 6

10) Article 3.4.a, which introduces a new Article 6a to Directive 2011/83 / EC

11) Article 3.4.b

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Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.

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Graduated in law, master in Food, Law & Finance. You have explored the theme of green procurement and urban food policies in the International Cooperation and Peace sector of the City of Turin.

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