Download - A new regime for e-commerce in Europe
Webinar - 27 November 2013
A new regime for e-commerce in Europe… but still no ‘one-stop-shop’ for cross-border transactions
Dr. Christoph Jeloschek
A new regime for e-commerce in Europe
A new regime for e-commerce in Europe
Outline1. Introduction2. What is e-commerce? - an EU lawyer’s perspective3. Key legal issues 4. The new regime for e-commerce in Europe5. Outlook: a uniform consumer sales & contract law
in the EU?6. Q&A
A new regime for e-commerce in Europe
From the old regime to…• Status quo: existing rules are incomplete and often
unclear Do I have to reimburse the consumer for all costs
if he wihdraws from the purchase within 7(14) days?
May I withhold reimbursement until I have received the goods to be returned?
Is the consumer entitled to return the goods if he has already used them?
Can I charge the consumer for services he has already enjoyed?
A new regime for e-commerce in Europe
A ‘new’ regime for e-commerce in the EU• Directive on Consumer Rights (of 25 October
2011)• overhauls rules for sales & services concluded
at a distance• introduces notion of ‘supply of digital content’
• time-line• implementation in the EU Member States on 13
Dec 2013• new rules apply to contracts concluded after 13
June 2014• new approach of maximum harmonisation across
EU
A new regime for e-commerce in Europe
Scope of e-commerce law proper• e-commerce rules relate to:
• offering of goods & services at a distance (incl. online)
• conclusion and execution of online contracts
• in essence EU rules implemented at the national level• but: fragmentation due to minimum protection
level (Member States are free to adopt more protective measures)
• new approach: maximum harmonisation
A new regime for e-commerce in Europe
Cornerstones of EU e-commerce legislation• Directive 97/7/EC on the protection of
consumers in respect of distance contracts (20 May 1997)
• Directive 2000/31/EC on electronic commerce (8 June 2000)
• Directive 2002/65/EC on distance marketing of consumer financial services (23 September 2002)
• Directive 2011/83/EU on consumer rights (from 25 October 2011)
A new regime for e-commerce in Europe
Other relevant EU laws and regulations• consumer sales law (non-conformity & guarantees)• unfair contract terms • privacy (personal data, cookies, etc.)• spam• unfair commercial practices• Intellectual Property Rights• competition law, etc, etc…. notion of e-commerce is broader than main legal concept
Key legal issues
A new regime for e-commerce in Europe
Key issues under e-commerce law • Information duties
• general information about website / online provider
• information in the course of placing order• information after purchase upon delivery
• Cooling off right• Right to return the goods without a reason
within 7/14 days• General terms & conditions
• applicability & providing a (digital) copy
A new regime for e-commerce in Europe
Information requirementsKey questions
1. Which information has to be provided? 2. How and where?
• open norms • further guidance in new regime
3. What if I don’t comply (penalties)?• primarily a question of national law• ‘autonomous’ sanctions of Directive(s)
A new regime for e-commerce in Europe
Time
‘browsing’ order process
after-sales
withdrawal‘landin
g’
Consumer action
Customer journey |information at different phases
delivery
Phase 1 Phase 2 Phase 3 Phase 4
ORDER
execution
A new regime for e-commerce in Europe
Right of withdrawal (cooling-off period)• consumer may return goods/services without
giving a reason• rationale: consumer has not seen goods/services
key business factor
A new regime for e-commerce in Europe
Fitting rooms re-visited
A new regime for e-commerce in Europe
Exercise of right of withdrawal• during 7 working days after delivery (will be 14
working days)• without having to state a reason• consumer only has to bear direct costs of
returning goods• exceptions
• made to specs • clearly personal in nature• Etc, etc.
• if consumer is not informed about right, extended to 3 months
A new regime for e-commerce in Europe
Consequences of withdrawal• ‘unwinding’ purchase• reimbursement of sales price within 30 days (will
be 14 days)• no additional costs may be charged• no liability for use beyond inspection yet (but:
new regime)
A new regime for e-commerce in Europe
#1 New notion – digital content• definition: data which are produced and supplied
in digital form • illustrations: computerprograms, apps, games,
music, videos contracts for the supply of digital content will thus also be subject to the e-commerce regime in the EU
• additional information requirements• functionality incl. technical protection
measures (e.g. DRM)• interoperability with hardware and software
a ‘shopping list’ of information
A new regime for e-commerce in Europe
#2 Proliferation of information provided• prior to conclusion of contract
• stricter requirements for contact details• inform consumer about obligations to bear
certain costs• reminder of legal rights of consumer• details of right of withdrawal• duration and termination of agreement• financial guarantees (e.g. deposits), etc.
A new regime for e-commerce in Europe
#3 Penalties for failure to comply• withdrawal period extended to 12 months if no
information provided on withdrawal• new penalties
• consumer does not have to bear certain costs anymore
• consumer is not liable for diminished value of goods
• consumer does not have to pay direct costs of returning goods
A new regime for e-commerce in Europe
#4 Information re conclusion of contract• how & where - certain information to be
provided:• ‘in a clear and prominent manner’ and
‘directly’ before placing the order• properties, total price, duration, conditions
termination, etc.• explicit acknowledgement by consumer of
payment obligation• specific instructions as to labeling of button
(!)• penalty: consumer not bound by contract/order• delivery restrictions & payment means at start
of order process
A new regime for e-commerce in Europe
#5 Right of withdrawal revisited• 7 working days to 14 calendar days (starting
point clearer)• how? - model instructions; online; also ‘in its
own words’• consumer pays only direct costs of returning
goods• consumer may be held liable for use beyond
inspection• NB: these obligations require prior information
of the consumer• exceptions [selection]
• digital content (if already started with explicit consent)
• hygene products, auctions, etc.
A new regime for e-commerce in Europe
#6 Executing the withdrawal• trader
• reimbursement of all payments received (incl. delivery costs)
• within 14 days after withdrawal• may withhold until consumer has returned the
goods (or provided proof)• consumer
• can be held liable for diminished value• has to return goods within 14 days
A new regime for e-commerce in Europe
#7 Other new consumer rightsboth for offline and online transactions• delivery within 30 days in consumer sales• consumer must not pay more than the basic rate
(telephone)• consumer pays only actual fees for use of
payment means• additional payments only valid if express
consent (no pre-ticked boxes)
A new regime for e-commerce in EuropeStill no comprehensive rules for cross-border transactions in the EU• patch-work character of EU Directives (sector/topic
specific)• different level of consumer protection due to
implementation measures or other national laws• varying degree of compliance due to different
national penalties and/or enforcement measures• consumer protection under Conflict of Laws• reality bites - traders go further than required
A new regime for e-commerce in Europe
Consumer protection overrules!• jurisdiction (EU Regulation 44/2001 - Brussels I)
• special regime for consumer contracts (art. 15)• if seller/service provider directs its activities to,
inter-alia, Member State of consumer and contract falls within these activities
• ECJ 7 December 2010 (Pammer/Reederei Schlüter and Hotel Alpenhof/Heller)
• applicable law (Rome I Regulation 593/2008)• restrictions on choice of law in B2C contracts
(art. 6)
A new regime for e-commerce in Europe
A uniform EU consumer sales & contract law• Draft Regulation on a Common European Sales
Law (2011)• so-called optional instrument• 186 (!) articles encompassing entire contract
law• idea: an autonomous regime for EU cross-border
consumer sales• applicability:
• Cross-border sales, supply of digital content & related services
• as a rule: only B2C transactions• requires opt-in by consumer (explicit consent,
trader’s initiative)• chosen in its entirety
Kennedy Van der LaanDr. Christoph Jeloschek
www.kvdl.nl @KennedyvdLaan
Questions?