ERU, Alm.del - 2015-16 - Bilag 375: Regeringens høringssvar vedr. gennemgang (Fitness Check) af EU’s forbruger- og markedsføringslovgivning, fra erhvervs- og vækstministeren

Erhvervs-, Vækst- og Eksportudvalget 2015-16
ERU Alm.del Bilag 375
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NOTE

September 2016

Response by the Danish government to the open consultation for the

Fitness Check of EU consumer and marketing law

General remarks

The Danish government welcomes and supports the Commissions effort

to check whether Unfair Commercial Practices Directive (2005/29/EC),

Price Indication Directive (98/6/EC), Misleading and Comparative Ad-

vertising Directive (2006/114/EC), Injunctions Directive (2009/22/EC),

Sales and Guarantees Directive (1999/44/EC) and Unfair Contract Terms

Directive (93/13/EEC) are fit for purpose and have no unintended conse-

quences.

It is important that the consumer legislation strikes a reasonable balance

between the interest of the consumers and the traders. The fundamental

rights for the consumers should be ensured while the companies should

not be imposed unnecessary burdens. In this regard, the Danish govern-

ment supports the Fitness Check in order to make the regulatory frame-

work better by reducing barriers, and removing unnecessary burdens to

make it easier for businesses to trade and for consumers to buy goods

across borders.

Activating consumers and reducing burdens

The consumption expenditure of households accounted for at least half of

GDP in the majority of EU Member States in 2014.

Thus, the consumers

are a vital part of the growth creation in the EU and the behaviour of con-

sumers is essential in creating well functioning markets.

The environment, in which consumers, act has changed over the past 20

years because of the digitisation and new technologies. New business

http://ec.europa.eu/eurostat/statistics-

explained/index.php/National_accounts_and_GDP#Household_consumption

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models challenge the traditional concept of producers, consumers and the

point of sale. And new digital possibilities provide the consumer with

tools to e.g. compare products, prices and share user reviews. The devel-

opment has led to a change in relations in power between the consumers

and the traders and empowered consumers.

The development in behavioural economics has led to recognition of the

consumer not acting rational in every purchase situation, even when pre-

sented to adequate information. A modern consumer and marketing legis-

lation should pay attention to the actual behaviour of the consumer and

reducing burdens on companies by among others abolishing the approach

on more information is better information.

Coverage

The Danish Government acknowledges the directives chosen, however

we find one directive missing. The Commission has decided the E-

Commerce Directive should not be a part of the Fitness Check. However,

there are a number of information obligations in the E-Commerce Di-

rective linked to the information obligations in the chosen directives

which are subject to the Fitness Check. The Danish government is of the

opinion that the Commission should include the information obligations

in the E-Commerce Directive in the Fitness Check of the consumer ac-

quis, see below.

Information obligations

The consumer legislation is comprehensive and places a great amount of

information obligations on the traders. E-commerce companies are e.g.

obliged to comply with a large number of different contractual or pre-

contractual information obligations. Hence, consumer contracts are often

long. This is burdensome to both the traders and the consumers, whom

are expected to read and understand extensive contractual information in

a purchase situation. The Danish government urges the Commission to

look at the information obligations in the directives in order to streamline

the obligations, including the information obligations stemming from the

E-Commerce Directive. In this regard, the Danish government is of the

opinion that only the most important and beneficial information should be

given the consumers in a purchase situation and be presented in a simple

and legible manner.

Behavioural insights should be used in creating optimal information at

the right time and in the right context. Furthermore, the impact of the

information on consumer behaviour should be tested in a true environ-

ment before implementing new rules in order to secure effectiveness.

This could be done in selected countries.

Enforcement of the EU-legislation

In our dialogue with Danish businesses the lack of enforcement of the EU

consumer legislation is frequently mentioned as an issue that might com-

ERU, Alm.del - 2015-16 - Bilag 375: Regeringens høringssvar vedr. gennemgang (Fitness Check) af EU’s forbruger- og markedsføringslovgivning, fra erhvervs- og vækstministeren

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plicate cross-border sales and distort competition. The Danish govern-

ment therefore welcomes the revision of the CPC-regulation and a more

formalized and coordinated cooperation between the enforcement au-

thorities.

Implementation guidelines should be published at the same time as new

legislation

When new legislation is published in the Official Journal it should be

followed by implementation guidelines describing the intentions of the

content of the legislation and why the co-legislators have crafted the leg-

islation in a given way. It will help to ensure a more unified implementa-

tion and enforcement of the given legislation. Further, later guidelines

published as a consequence of among others rulings of the European

Court of Justice should be crafted together with the member states and

not only by the Commission.

Coherence within the consumer acquis

It is important to ensure overall consistency and coherence between the

different consumer instruments in order to avoid a fragmented legislation.

In this regard, several stakeholders have pointed out that it is undesirable

that definitions differ from one consumer instrument to another. As an

example it is mentioned that the definition of ‘digital content’ in the

Commission proposal for a directive on certain aspects concerning con-

tracts for the delivery of digital content differs from the Consumer Rights

Directive’s definition of the same concept. Further, it has been pointed

out that the pre-contractual information requirements stemming from

different consumer instruments often overlap and that they should be

streamlined to the furthest extent possible.

On that basis, the Danish government invites the Commission to assess

the possibility of aligning the consumer legislation in order to remove

unnecessary burdens and to ensure greater coherence in the legislation to

the benefit of both consumers and traders.

Specific remarks

Unfair Commercial Practices Directive (2005/29/EEC)

The scope of the UCPD

There is a need for clarification of when commercial practices fall outside

the scope of the UCPD. According to the new guidelines, the UCPD does

not cover national rules intended to protect interests which are not of an

economic nature. Conversely, national rules that aim to protect the eco-

nomic interest of consumers, in conjunction with other rules, do fall with-

in the scope. It is not entirely clear when a national rule falls outside the

UCPD. Even if the scope of a rule is to protect interest that relates to taste

and decency, the same rule often also aims to protect the economic inter-

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est of consumers, e.g. commercial solicitation in the streets (recital 7 in

the UCPD). In this example the aim is to protect consumers against ag-

gressive marketing from a cultural perspective. But it is also to ensure,

that consumers do not feel pressured to make a deal with a trader.

Further, it is unclear, whether it is only provisions that aims to protect

taste and decency, health and safety and contract law that falls outside the

scope of the UCPD or if it is all national rules that intend to protect inter-

ests, which are not of an economic nature.

Inconsistent in the use of terms

The use of terms in the UCPD is inconsistent. As an example, article 5

(2) (b) states, that a commercial practice is unfair if it materially distorts

or is likely to materially distort the economic behaviour. According to

article 6 a commercial practice is misleading and thus unfair if it causes

or is likely to cause the consumer to take a transactional decision that the

consumer would not have taken otherwise. These two phrases should be

interpreted uniformly. Since the wording is inconsistent, it may raise

doubts.

Another example is the use of the term of "commercial communications".

This term is defined differently in UCPD article 2 (d), compared to article

2 (f) in the E-Commerce Directive.

The terms “marketing” and “advertisement” are also used inconsistently

in different directives.

Hidden marketing in social media

It is essential that the UCPD is evaluated in terms of the technological

developments that have occurred since its creation. Social media such as

Facebook, Instagram and blogs enable users to create profiles and com-

municate with each other. It is uncertain how the assessment of the term

in article 7 (3) of "limitations of space or time" and the "measures as the

operator has taken to make information available to consumers by other

means" should be interpreted in relation to the new marketing opportuni-

ties in the social media.

Vulnerable consumers

In article 5(3) consumers can be vulnerable where certain characteristics

such as age, physical or mental infirmity or credulity make them particu-

larly susceptible to a commercial practice or to the underlying product. It

is unclear whether the listing of vulnerable consumers in the UCPD is

exhaustive. This leads to uncertainty in relation to the interpretation of

the rule.

Invitation to purchase

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It is unclear when something is “an invitation to purchase” according to

article 2 (i), or whether it is only marketing. This is important in relation

to the businesses obligations to provide the correct price information.

Price Indication Directive (1998/6/EC)

It is important to have regulation regarding price information. But there is

a need to update the existing directive, which was adopted in 1998, when

E-Commerce was practically non-existing. Therefore the directive has not

taken a position on whether it applies in both physical stores and online.

The rules should also be evaluated in conjunction with the rules in the

UCPD and Directive 2006/123/EC on services in the internal market. For

example pricing of services is highly relevant, especially when booking

travel services on the internet.

Injunctions Directive (2009/22/EEC)

The Danish consumer enforcement authorities have never used the In-

junctions Directive. In connection with the revision of the CPC Regula-

tion it should be considered whether the Injunctions Directive is relevant,

or if it might be appropriate to incorporate some of the provisions into the

CPC Regulation.

Commission Proposal for a Directive on certain aspects concerning con-

tracts for the online and other distance sales of goods

In the Consumer Sales Directive the deadline for pursuing remedies in

case of non-conformity is set at two years from delivery of the goods.

This corresponds to the deadline suggested in the proposal for a directive

on online and other distance sales of goods. However, the possibility set

out in the Consumer Sales Directive for a Member State to require that

the consumer notifies the seller about the lack of conformity within a

certain deadline is not included in the mentioned proposal for a directive.

Furthermore, the proposal extends the period of time during which the

consumer asking for a remedy in case of non-conformity does not have to

prove that the defect existed at the time of delivery from 6 months to 2

years (presumption of non-conformity).

Some Danish stakeholders argue that the suggested extension of the peri-

od of presumption of non-conformity which lays the burden of proof ex-

clusively on the trader for 2 years imposes an unnecessary burden on the

traders, who in general already provide warranties with a warranty period

longer than 2 years.

Other stakeholders argue that it is important to ensure uniform rules re-

gardless of whether a sale happens online or offline and thereby avoid

fragmentation of the regulation of consumer protection in connection

with a sale.

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As stated above, the Danish government finds it important that a reasona-

ble balance is struck between the interest of the consumers and the trad-

ers, and that consistency between the different consumer instruments is

ensured.

Unfair Contract Terms Directive (1993/13/EEC)

The Danish government supports rules on unfair contract terms. The Dan-

ish authorities are not aware of any malpractice in relation to the Unfair

Contract Terms Directive. This is seen as an indication that the rules have

the intended effect and therefore it is not deemed necessary to introduce a

“black list” of contract terms that are always prohibited.

However, some stakeholders suggest that it might be relevant to examine

whether – within certain sectors, including supply of digital content –

there is a need for a black list of contract terms.

Consumer Rights Directive (2011//83/EU)

The Danish stakeholder organisations have on several occasions stressed

the practical challenges related to the right to return used goods according

to article 14 (2) in the Consumer Rights Directive. They argue that it is

difficult for the traders to re-sell the returned used goods subsequently

and that there is uncertainty about the calculation of the diminished value

of the goods.

On that basis, the Danish government invites the Commission to examine

the benefits of this specific article further in the light of the criteria set out

for REFIT, including the criteria regarding efficiency, relevance and EU

added value.

In this connection, it is noted that the rule in article 13 (3) (d) in the

Commission Proposal for a Directive on certain aspects concerning con-

tracts for the online and other distance sales of goods is almost similar to

Article 14 (2) in the Consumer Rights Directive.