With its Proposal 2023/0376 (COD) amending Directive 2013/11/EU on ADR, the European Commission aims at enhancing the use of ADR in cross-border disputes through more customised assistance to consumers and traders. To achieve this objective, the Commission proposes to confer upon relevant bodies and especially European Consumer Centres (ECCs) a new supporting role in assisting and signposting consumers in cross-border disputes. 

ECC-Net thanks the Commission and all the consulted stakeholders for their trust. According to the Commission, stakeholders stressed that ECCs play a very important role to assist consumers with problems with their cross-border purchases. ECC-Net is fully prepared to take up this important task and to promote the use of ADR and facilitate communication between the parties and the competent ADR entity, which may include, in particular:

1. Assisting with the submission of the complaint and, where appropriate, relevant documentation.
2. Providing the parties and ADR entities with general information on EU consumer rights.
3. Providing the parties with explanations on the procedural rules applied by the specific ADR entities. 
4. Informing the complainant party of other means of redress when a dispute cannot be resolved through an ADR procedure. 

ECCs already declare to act in good faith to allow parties to the dispute to reach an amicable settlement and provide relevant information to consumers in full transparency, including information regarding procedural rules and any applicable fees, as this is the way the ECC-Net has been working for almost 20 years now. 

Why are ECCs best suited for this job? 

Currently, 26 ECCs are already ADR contact points under the current directive and/or coordinators of the ODR contact points. 

By appointing ECCs as ADR contact points under the new Directive, both the existing human resources as well as the established capacities will be used in the most efficient way, ensuring a smooth transition. ECCs have a longstanding experience in networking and well-functioning procedures in place. They are specialised in the handling of cross-border cases, as the 29 centres help consumers engage in cross-border transactions more confidently by providing them with free information and advice on their rights and assist them in resolving cross-border consumer complaints, including via ADR. More than 120.000 consumers are assisted each year. 

By entrusting all ECCs with the mission of ADR contact point, information will be streamlined and the assistance service benefitting consumers increased. At the same time ADR will be strengthened as a useful complementary option. 

Are ECCs ready to go the extra-mile? 

The informal ministerial meeting on consumer affairs organised by the Czech Council Presidency in September 2022 confirmed that all Member States are satisfied with the assistance provided by the ECC-Net to consumers in their cross-border disputes and see their role strengthened in the future. In its 2022 report on ADR in Europe, ECC-Net made an engagement for the future: 

• Actively help consumers overcome burdens in ADR processes 
• Enhance cooperation with national ADR bodies 

Thanks to its well-established case-handling system (IT-Tool), ECC-Net can also collect interesting data on cross-border ADR in Europe. 21% of ECCs transfer cases to ADR bodies, 38% signpost consumers to the appropriate ADR and 41% of ECCs do both. 

For the upcoming grant period 2024-2025, together with the Commission and the Member States the Vademecum of the ECC-Net, which defines the missions entrusted to the centres, has already broadened the scope with regard to active assistance of consumers in submitting cases to ADR. 

The new directive goes even further by including advice to traders and the possibility of traders from third countries to participate in ADR procedures in the EU. 

What do ECCs need to execute this new role?

If all ECCs become ADR contact points, the support services provided will increase as, (fortunately) more consumers can be helped by the network. This will translate in an increase of interactions between ECCs. So more resources are needed as the ECC-Net should assist more and increase their involvement in cross-border ADR. 

The extension of the scope of assistance to pre- and non-contractual situations as well as to traders, including from third countries, needs to be addressed with our partners. 

In order to facilitate the case handling for consumers, and to provide them with a one-stop-shop for their cross-border complaint, the activities as ADR contact points should be fully integrated in the functioning and budget of the ECC.

How will the right to repair help consumers in the EU?

The European Union has set an ambitious goal to become the first climate-neutral continent by 2050 through initiatives like the European Green Deal. Notably in consumer protection, the ambition is reflected in concrete initiatives, including the right to repair pushed by the European Parliament. 

But also, thanks to the EU Ecodesign Directive, new requirements regarding the repair of certain new electrical appliances apply since 1 March 2021.

As a result, the European Commission has put forward a new proposal aimed at promoting the repair of goods by introducing common rules that will make it easier for consumers to have their products repaired. This proposal will help consumers save money while supporting the goals of the European Green Deal, including waste reduction. Historically, replacement has been prioritized over repair, and consumers have not been incentivized to repair their goods after the legal guarantee expires. The new proposal aims to make repair more affordable and accessible to consumers, which will increase demand for repair services and encourage producers to develop more sustainable business models.

What does the recently published proposal include? 

This proposal provides for several axes to promote product repair in the European Union.

Within the legal guarantee, sellers would be required to offer repair except when it is more expensive than replacement. 

Beyond the legal guarantee:

• A right for consumers to claim repair to producers would be introduced for a category of products that are technically repairable and affected by ecodesign measures (refrigerators, washing machines, televisions, etc.). Telephones, tablets and certain other electronic devices should be added. 
• Producers would be obliged to offer to repair these products within a period of 5 to 10 years from the end of the legal guarantee of conformity (depending on the nature of the product concerned). They would be obliged to inform consumers of this right to repair

If the producer is not established in the European Union, consumers will have this recourse to its representative in the European Union, failing which its importer, failing which its distributor.

• Each Member State would be obliged to set up a free online matchmaking repair platform to connect consumers with repairers and sellers of refurbished goods in their area. The platform would enable facilitate the identification of suitable repairers by location and quality standards

A European Repair Information Form would become mandatory for all products covered by the right to repair. The aim would be to provide a framework for repair quotations, bringing transparency to repair conditions and price. This form would be valid for a period of 30 days from this communication by the repairer in order to make it easier for consumers to compare repair offers. 

This new set of rules builds on the EU Ecodesign Directive. These measures have the potential to significantly extend the lifespan of products and reduce electronic waste that ends up in landfills.

Shadow rapporteur Ms. Cavazzini, who is the Internal Market and Consumer Protection Committee Chair and other consumer groups are also pushing to extend the legal guarantee to the durability of the product, a measure not included in the proposal. “Moreover, the legal guarantee has a minimal impact on consumption. The biggest amount of non-conformity defects occur in the first two years,” responded EU Commissioner for Justice Didier Reynders.

What would ECC-Net like to see included in the upcoming Directive?

• Extended guarantees to prevent programmed obsolescence, especially for electronic and white devices. 
• Incentives that encourage consumers to opt for repairs such as, quick and easy procedure, financially reasonable, bonuses or temporary replacement devices during the repair period - Making the option of repair more attractive than replacement. 
• Provisions that oblige having in the market more long-lasting devices that are easier to repair, with easily replaceable parts. 
• Clear and improved information about reparability of devices. 
• Multiple options available for consumers when it comes to pick a repairer. 
• Clear rules on the indicative timeframe for repairability of a product. 

• Article 7 mandates Member States to ensure that a minimum of one online platform exists within their territory to assist consumers in locating repairers. 

  However, a question arises regarding products purchased from another EU country that are not circulated in the consumer‘s country. It is essential to consider whether the platform listing repairers should be available in English, given the cross-border nature of the European Union. Furthermore, it may be necessary for all national platforms to exist under a single EU platform that navigates consumers to the nearest repairer, regardless of whether it is located in another EU country. 

• Considering that the proposed legislation on the right to repair is a crucial aspect of the European Green Deal, there is a legitimate concern that excessive manufacturing and supply of spare parts that remain unused for up to ten years after the product‘s market launch date could lead to significant waste. 

  Therefore, it is important to consider how such practices will be monitored and controlled to ensure that they align with the objectives of the European Green Deal. Manufacturers should keep a record of the spare parts they produce and supply to monitor whether they are being used and for what purposes. This information could then be used to adjust the production and supply of spare parts to avoid unnecessary waste.

• Regarding electronic devices and software, there may be instances where a product‘s hardware remains fully functional beyond its intended lifespan, but the software becomes obsolete due to restrictions imposed by the manufacturer. 

  For instance, a 10-year-old MacBook may still be in working order and require only a new battery, but the device‘s software may not be up to date, as Apple does not allow older devices to receive new software updates. In such cases, continuing to repair the device with spare parts may not be a practical solution, as the product cannot keep up with technological advancements.

What are national initiatives in the EU?

While the above discussed promising provisions have been included in the proposal submitted by the EC to the Council and the EU Parliament, ECCs have also identified that there are already numerous national and local actions to encourage repair of consumer goods across the EU. The below ones can play a very important role next to the recent proposed Directive when adopted and could possibly bring the EU closely to achieving the objective of sustainable consumption.

What are good practices to keep across the EU, to implement or to extend to the majority of consumer goods? 

• Because reparability and product life span are closely linked: extended legal guarantee periods based on the expected life span of a product (Finland, the Netherlands, Norway)
•  Further extension in case a consumer chooses repair over replacement. 
• Information on reparability of items and availability of spare parts (including an obligation to inform if no spare parts are available if the country does not oblige manufacturers to provide spare parts for all goods) 
• This information should be available for purchases in physical shops and online!
• Obligation to provide spare parts throughout the estimated lifespan of products within 15 days 
• Even if a good is no longer manufactured, obligation to ensure spare parts for the estimated lifespan of the product.
• Visibility of repairers: so that consumers can trust in the repair, an official registry of approved repairers across EU easily accessible to consumers of different MS as well. 
• Extension of the reduced VAT or reduction of other taxes for repair services or tax benefits 
• More standardisation of spare parts 
• Promotion by sellers or manufacturers of instructions manuals/videos/workshops/ateliers to consumers on how to do small repairs 

• The digital product passport would be an excellent outcome, provided that it includes information on reparability, the social and environmental footprint of the product and the traceability of the supply chain and the guarantees (legal and commercial) the product benefits from. 

  The QR code should be coupled with a second means of identifying the product in the event that one is not in possession of a terminal enabling the QR code to be scanned (a number to be entered online, for example, enabling the same page to be viewed as if the QR code were used).

Geo-blocking: still an area of concern for ECC-Net

Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Innovation Council and Small and Medium-sized Enterprises Executive Agency (EISMEA). Neither the European Union nor the granting authority can be held responsible for them.

Geo-blocking regulation

On December 3rd, 2018, the Geo-blocking regulation came into force EU-wide and has since also been incorporated into EEA law. Since, discriminations based on nationality or place of residence of consumers, when shopping online, are prohibited.

More broadly, the aim of the legislation is to increase the potential of the internal market: 

• Increase the potential of the internal market 
• Broaden consumer choice throughout the internal market
• Clarify situations in which differential treatment is unjustified 
• Enable the application and effective implementation of non-discrimination rules throughout the internal market

The regulation covers both direct and indirect discrimination mainly based on:

• The nationality
• The place of residence
• The place of establishment of the customers 
• The physical location of the customers identified for example by the IP address of their connection 
• The delivery address
• The language chosen 
• The customer‘s bank domiciliation or the country of issue of the means of payment

ECC-Net has always been particularly vigilant on the application of the geo-blocking regulation as expectations from consumers were high. Many ECCs have been designated contact points for consumers under the regulation. It has proven useful to entrust the European Consumer Centres with the support to consumers according to Article 8 of the Geo-blocking regulation, building on existing synergies and experiences of the ECC-Net. 

In its first evaluation report on the Geo-blocking regulation, the European Commission stated that the European Consumer Centres as contact points according to Article 8 are of crucial importance for the implementation of the Geo-blocking regulation and confirmed the continuation of the cooperation with the European Consumer Centres. 

Main findings of ECC-Net's position paper (2019)

In 2019, in its position paper, the ECC-Net concluded that “Many consumers incorrectly assume that companies have an EU-wide obligation to deliver packages across borders, and when this is refused many feel that the Internal market still bears more freedom for companies than it does for consumers. Businesses can freely sell their services, create companies or subsidiaries in another Member state, but consumers are dependent on traders accepting to deliver to their country.”

• The exact scope of application of the geoblocking regulation is unclear to consumers. 
• The absence of obligation to deliver to the consumer’s country of residence makes it, in practice, difficult or impossible to have access to all offers. 
• The possibility of redirection to national websites and price differences still exist and y frustrate consumers. 
• The idea of “shopping like a local” is only interesting in border regions where distances are short. 
• The problem of geo-blocking also seems, in certain countries, to be linked to the “SEPA issues” as consumers are refused to sign contracts based on the domiciliation of their bank account. 
• Also credit cards may be refused, despite Article 5 of the regulation, either directly by the merchant or by the service provider the merchant uses and which allows the blocking of credit cards from specific countries, often advertised as a fraud prevention mechanism.

Barriers for EU consumers in 2023

In 2023 it was time to have a look if these main conclusions have changed. 25 ECCs* have agreed to look into the queries they receive to extract the most common consumer reasons to complain. Unfortunately, no evolution can be seen since 2019. The most important barriers for consumers when wanting to shop from another country still are:

• Higher purchase prices due to the place of residence/nationality of the consumer not justified by different VAT rates, 
• Sales and promotional offers accessible only in specific countries, 
• Selective distribution, and purchases refused even in cases of passive sales, 
• The impossibility to obtain delivery to the consumer’s country 
• When delivery is possible, high delivery costs, expensive return costs, 
• The (non)acceptance of (pre)payment methods, when using a payment means issued in another country.

ECC-Net has always been particularly vigilant on the application of the geo-blocking regulation as expectations from consumers were high. Many ECCs have been designated contact points for consumers under the regulation. It has proven useful to entrust the European Consumer Centres with the support to consumers according to Article 8 of the Geo-blocking regulation, building on existing synergies and experiences of the ECC-Net.

• Place of residence
• Country of origin of the bank account or credit card
• Type of means of payment
• Nationality
• Country of origin of the telephone number,
• Parcel forwarding services as delivery address,
• National social security numbers or tax identification numbers

Also automatic redirection to country specific websites still exist, even if they have become less reason to complain. It should also be highlighted that country-specific websites redirecting from a centralised web portal (like an .eu and .com). This business model has become the norm for international online traders

Scope of the Geo-blocking Regulation

ECCs also noted that even though awareness has increased, the exact coverage and scope of the geo-blocking regulation is still not known to consumers. Also confusion exists with regard to other legal instruments such as portability of content, access to digital services such as Apps, exclusive/selective distribution rules, author or intellectual property rights protection or even TV and radio broadcast across borders.

Distribution of physical goods

In terms of selective distribution of physical goods, some online traders, especially small traders, find it impossible to offer delivery of goods to certain locations because they are unable to find a shipping partner or service (in-country and last-mile delivery) at that location, and this despite the European Commission’s efforts to ensure that citizens and small businesses have access to reasonably priced cross-border parcel delivery services, such as Regulation (EU) 2018/644 on cross-border parcel delivery services.

No obligation to deliver cross-border

Those consumers who know about the geo-blocking regulation mistakenly think that traders have to deliver cross-border. When they learn that this isn’t the case, they are very disappointed. The geo-blocking regulation does not require merchants to deliver the goods or services to customers all over the EU; they can choose the geographical area in which they will physically deliver the goods or services but this essentially prevents the completion of the sale, whose result is the delivery. The obligation set on traders is to make the content accessible in all EU locations but there is no obligation for the trader to authorise the sale based on delivery location (which, again, negates the sale). 

Difficulties with 'Shopping like a local'

Putting in place “shopping like a local” is difficult in e-commerce as not many consumers have a delivery address in another country, know how to set them up or find traders accepting them. They also generate additional costs, which often make the price advantage when shopping in another country void, or create an additional risk for consumers when the parcel goes missing or is damaged after delivery to these facilities. 

Self collection possibilities such as “click and collect” do not always hold their promises either as even traders who offer self collection to their national residents are refusing the same option to consumers from other countries. 

Banking practices are not aligned

The cross-border banking practices are also an impediment to distribution, so another factor for tackling geo-blocking is ensuring full application of the SEPA regulation as well as improving SEPA processes for banks and traders but also regulating payment processors (authorised but functioning outside of the national and European banking systems), some of which only have a limited geographical business coverage.

ECCs also call out for:

• Full enforcement of the SEPA regulation and Article 5 of the Geo-blocking regulation
• Sweeps, joint actions and enforcement of the Geo-blocking regulation, including on discrimination in passive sales constellations.

* ECCs that participated and agree with the information mentioned in the response: ECC Austria, ECC Belgium, ECC Bulgaria, ECC Croatia, ECC Cyprus, ECC Czechia,ECC Denmark, ECC Estonia, ECC Finland, ECC France, ECC Germany, ECC Hungary, ECC Iceland, ECC Ireland, ECC Italy, ECC Latvia, ECC Lithuania, ECC Luxemburg, ECC Malta, ECC Norway, ECC Poland, ECC Portugal, ECC Slovakia, ECC Sweden, ECC the Netherlands.

Automated interactions (chatbots)

ECCs often receive cases where it is almost impossible to contact a manager on site or an online trader, as no direct contact means are provided on their website. To reach them consumers have to fill out an online form or to use a chatbot or other automated system. In addition, some traders do not respond unless the case reaches another more formal and official state. 

Artificial intelligence 

Communicating with customers through live chat interfaces has become an increasingly popular means to provide real-time customer service in many e-commerce settings. Today, human chat service agents are frequently replaced by conversational software agents or chatbots, which are systems designed to communicate with human users by means of natural language often based on artificial intelligence (AI). Though cost- and time-saving opportunities triggered a widespread implementation of AIbased chatbots, they still frequently fail to meet customer expectations, potentially resulting in users being less inclined to comply with requests made by the chatbot and complaining about poor customer service preventing the application of their consumer rights. Consumers also regret that chatbots or automated systems are the only way to get in touch with some traders, any other contact detail being well hidden or inexistent.

Challenges for consumers?

• Chatbots might give irrelevant responses to the queries. 
• Inability to understand the query and lack of precise response.
• Privacy concerns, and consequently, information disclosure, attitudes, and recommendation adherence.
• Users mostly do not know how their sensitive personal identifying information (PII) is treated, used, stored, or even shared.
• Traders should invest in building bots with an option to connect with human customer service agent, give relevant responses and concrete help. There must be a seamless transition between the chatbot interface and connection with the customer service agent.
• Traders should let customers know that they are interacting with a robot to improve the experience.
• Conversational biases—there can be chatbots (social bots) created to manipulate people’s opinions, for example, during selling, in forums, on social platforms, during political elections, and so forth. Such malicious chatbots can create huge damage.

Directive 2000/31/EC

Directive 2000/31/EC of the European Parliament and of the Council on electronic commerce in Article 5 indicates as mandatory information the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner. The CJEU1 has confirmed that these are key requirements also under the Consumer Rights Directive. These provisions should remain applicable in all circumstances even if chatbots will be allowed. Furthermore, some countries have already put responses in place, guaranteeing that the consumer’s complaint is handled. However, we should aim at harmonising legislation across the EU, to ensure that all European consumers have the right to be heard.

Subscription traps 

ECC-Net encounters regularly cases in which consumers indicate that they have been trapped into subscriptions with no information on the main characteristics but also no possibility to terminate the contract. Often consumers only realise that they are dealing with automatic or tacit renewal contracts when the second payment is deducted from their bank accounts which sometimes is even higher than the initial first payment so locking them in contracts they no longer want/need.

Directive 2011/83/EU

Directive 2011/83/EU on consumer rights foresees in Article 5&6 the following Information requirements for contracts. Before the consumer is bound by a contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and
comprehensible manner, (if that information is not already apparent from the context for contracts other than distance or off-premises contracts). 

• The duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract.

Council directive 93/13/EEC

Council directive 93/13/EEC on unfair terms in consumer contracts foresees in its annex the following terms which may be regarded as unfair:

• Terms which have the object or effect of automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express this desire not to extend the contract is unreasonably early.

Only some EU Member states provide for specific legislation when it comes to automatic renewal of contracts. But is this protection sufficient? What would be missing for an EU action to bring a real added value to consumers?

Specific regime for automatic renewable contracts

This specific regime exists in Austria, Belgium, Bulgaria, Denmark, France, Germany, Italy, Netherlands, Romania and Sweden. In Belgium in case of fixed-term service contracts with a tacit renewal clause, certain requirements are laid down with regard to the form and content of a tacit renewal clause:

• Appear in bold in a box separate from the text, on the front of the first page of the contract.
• Mention the consequences of the tacit renewal as well as the final date on which the consumer can oppose the tacit renewal and the methods of notification of this opposition.
• Indicate that after the first tacit renewal of the contract, the consumer may terminate this contract, without compensation, subject to compliance with a notice period of two months at most.

This provision also applies to sales contracts which relate to both goods and services. We are
thinking here, for example, of goods sold and installed by the same company, such as fitted kitchens, tiling etc.

Fixed-term contracts

Fixed-term contracts for the delivery of goods, such as subscriptions to magazines, book clubs, are not affected by this provision. The possibility has however been provided for of extending the royal decree deliberated in the Council of Ministers to certain categories of goods.

• In Denmark a consumer is allowed to terminate a subscription after 5 month to be eliminated after 6 months. Some modifications to this rules apply e.g. for very expensive contracts such as car leasing (12 month) or if specific rules apply to a certain sector as for instance insurance contracts.
• In Germany new rules apply to contracts for the regular supply of goods and services (e.g. streaming services, magazine subscriptions, gyms, electricity, gas) that are newly concluded from 01.03.2022. From this date on, contracts may generally only run for one year. Longer contract terms of up to two years are now only permitted if the customer also receives an offer for a one-year contract at the same time, which may be a maximum of 25 percent more expensive on a monthly average. After this so called “initial contract period”,contracts may only be automatically extended if they no longer specify a fixed contract period, but run for an indefinite period and can be terminated at any point in time with a notice period of one month.

Context

Previously, this period was three months to the end of the contract. Consumers can now terminate future contracts with a maximum notice period of one month before the end of the initial contract term. Not covered: e.g. insurance contracts.

Conclusion of contract

From 1 July 2022, traders are also obliged obligations concluded on the internet. This button must be easily accessible and clearly visible on the website. If the trader fails to provide such a button, the consumer may terminate the contract at any time.

A few other countries only foresee rules for specific type of contracts such as energy provision, insurances or communications service agreements (Czech Republic, Finland, France, Portugal).

In general, the consumer needs to be made specifically aware of the fact that the contract will renew before the conclusion of the contract but whereas many countries allow this to happen in the general terms and conditions, some countries impose that the trader also makes the consumer aware of this fact prior to the renewal:

• Concerning the information in the T&C, only Belgium foresees that the automatic renewal clause must be mentioned in bold characters in a frame apart from the text and on the first page of the contract.
• In Italy it is enough to include such information in the T&C but the clause has to be signed twice otherwise the consumer can cancel the contract at any moment, also in France every contract needs to be validated twice (double click rule).
• In Portugal contractual provisions written in a font size inferior to 11 or 2,5 mm, with spacing inferior to 1,15 are forbidden (DL. n.O 32/2021). 
• Supplementary information requirements prior to the renewal exist only in Austria, Czech Republic, France and Sweden.

Note: Telephone, mobile phone and internet contracts may also no longer be automatically renewed and must have a one-month notice period. For these contracts, the mentiondes changes have already applied since 01 December 2021 and also for old contracts concluded before 01 March 2022 (so retroactively!). 

Automatic renewals based on a contract concluded before 1 March 2022 are subject to the former regulation, i.e. the contract is automatically extended by up to one year. The notice period of three months also continues to apply to these types of contracts. 

How this information has to be provided? Of course, it has to be given in writing.

• The Czech Republic foresees that this information has to be provided in the way in which the invoice has been issued.
• In France and Austria, the trader must inform the consumer in writing, by means of a specific letter or e-mail so it must be separated from other information addressed to the consumer.

Timing of the information on the renewal

• Austria: The information needs to be provided an adequate period of time before the renewal (e.g. two weeks).
• Czech Republic: max. 3 months and min. 1 month before a relevant contract expires.
• France: no earlier than three months and no later than one month before the end of the period allowing for the rejection of renewal.
• Portugal: the professional has to inform the consumer up to the celebration of the contract about the validity period of the contract or, if the contract has an undetermined period or an automatic renewal, about the conditions for the termination or the non-renewal of the contract, the consequences of it and any compensation for the early cancellation of the contract with minimal contractual period.
• Romania: 30 days before the renewal.
• Sweden: The reminder must be in writing and submitted no later than one month prior to the time the contract must terminated.
• Portugal: Art. 218 civil code normally states that silence is deemed as an agreement when law, custom or contract foresee it.

DL 446/85 art. 22 (cláusulas proibidas) however restricts this possibility as contractual provisions that allow an automatic renewal based on the silence of the other part are forbidden, when the date to express their intention is far from the termination of the contract period.

There is no legal definition of what is considered as “far from the termination period”, but case law for example may decide that the trader’s notification of the cancellation /non-renewal of the contract 90 days previous to the deadline of the contract would be considered as an excessive period of time or as being far from the termination period of the contract.

Content of the information

• In Austria, the reminder needs to include the date of renewal, the renewal period and the period of time for terminating the contract.
• In France the dedicated letter or e-mail needs to include information on the possibility of not renewing the contract in clear and comprehensible terms and shall mention, in a visible box, the deadline for non-renewal.

What happens if the trader does not remind the consumer? 

• In Sweden the reminder must mention the date of renewal, price and the means to stop the subscription. What happens if the trader does not remind the consumer?
• In Austria the contract is not renewed in the first place, so new contract was concluded. The consumer should point out to the trader that the contract renewal was not correct and that therefore there is no contract. 
• In France, the consumer may terminate the contract free of charge at any time from the renewal date. Advances made after the last renewal date or, in the case of open-ended contracts, after the date of conversion of the initial fixed-term contract, shall in this case be reimbursed within thirty days of the date of termination, after deduction of the sums corresponding, up to that date, to the performance of the contract.
• In Sweden, if the trader does not remind the consumer, the consumer has the right to terminate the agreement with immediate effect. Has the initial contract period not yet expired, the consumer has the right to terminate the agreement when the contract expires.

Necessity to conclude a new contract is foreseen in Bulgaria and Finland

• In Bulgaria a fixed-term contract may be extended solely with the express written consent of the consumer concerning the conditions for extension. Where no consent has been given, after the expiry of the duration of any such contract it shall be transformed into an openended contract under the same conditions. The consumer shall have a right to withdraw from the open-ended contract on one month’s notice without penalty.
• In Finland an ongoing contract is valid until it is terminated. It ends after the period of notice specified in the contract. Typical ongoing contracts include electricity supply, waste management and district heating contracts and magazine subscriptions.

A fixed-term contract expires at a specified date, for example after 12 months. A fixed-term contract cannot normally be terminated. 

Renewing fixed-term contracts automatically is prohibited; this means that when the expiry date has been reached, the contract may not be automatically renewed as another fixed-term contract. However, a fixed-term contract may be turned into an ongoing one after a certain date if the ongoing contract can then be terminated with a normal period of notice. If a company offers this contract model to a consumer, the consumer must be clearly told in advance that the contract will automatically continue until further notice when the fixed-term contract period expires.

Typical fixed-term contracts include gym memberships and pay-TV, broadband and telephone subscriptions. For example a telecommunications operator shall not extend a time-limited agreement by another time-limited agreement without concluding a new agreement in writing with the subscriber.

Special focus

• Short term contract less than 3 months (including short trial periods)
  Often consumers inform the ECCs that they have been trapped in a renewed contract but of which the duration is longer than the first period they subscribed to which often has an effectct on the price of the service. Under French law, a fixed-term contract may be renewed by law or by agreement of the parties but the renewal gives rise to a new contract with the same content as the previous one but of indefinite duration. Which would mean that as soon as duration or price change, the consumer is not in a renewed contract after the trial, but in a new agreement, which needs to be validated according to the “double clic” rule and should offer the consumer a cooling off right, where applicable.
• Free trial periods
  As generally these contracts are designed to renew automatically, consumers are asked to provide their bank details right from the start. In ECC-Nets opinion, consumers should be requested to provide those with a dedicated information about the renewal of their contract only. There should also be specific chargeback possibilities in all EU Member states, in case the trader has not respected this rule.

Dark patterns

We all have had this feeling of having been trapped into accepting something we didn’t want, in buying something we didn’t intend to buy or usually wouldn’t have bought, in keeping a subscription we wanted to cancel, but how did we get there? Is this on purpose? is there a specific technique begin this? The answer is Yes, and they undermine your autonomy as consumer. 

Many webshops, marketplaces, apps, social media but also search engines and even newsletters use very specific deceptive design elements or features, called dark patterns to influence consumer behaviour online. Based on behavioural psychology, they will nudge, persuade or trick individuals so that consumers play along exactly as intended by the seller.

Colours, button sizes and wording are the first elements to look out for on a website. Their aim is to get consumers into buying something they didn’t necessarily want, as fast as possible. But this isn’t all.

ECCs have taken a step back and looked carefully, and could observe a certain number of techniques, which relate either to triggering consumers into purchasing something or into keeping them in a specific relationship with a trader.

Tricked into (impulse) purchases 

• Hidden costs
  Consumers are only confronted with at every step of the transaction or at the very end of the order. This is done because usually consumers do not want to start over again, they may just accept service fees, additional options or insurances, cleaning fees etc. But only if all additional costs are displayed from the start consumers can compare if the purchase is still interesting or search for other offers. This technique is often coupled with an impossibility to compare prices as every seller adds fees at a different time and the content is never exactly the same. For example luggage options for airline tickets. It is often very difficult for consumers to check if the offer really corresponds to their needs. When ordering there are already items in the virtual basket that either the consumer needs to remove or he/she will be able to get for free if a certain total amount is reached. Often the website reminds the customer with phrases such as ‘only 5.99 €’ left to benefit from this free gift otherwise charged € 25.99.
• Situation of urgency
  Well displayed messages create a situation of urgency, of the consumer missing out on a good deal. ‘Only 3 hotel rooms of this category available at this price on our portal’, ‘free cancellation, nothing to be paid now’, ‘47 other people are watching this article’, ‘limited time offer’, ‘limited supply in Berlin on your travel dates: 12 3-star hotels like this are no longer available on our site’ or ‘prices could rise, so confirm your booking today’. Some sellers may just artificially reduce the number of items by creating specific categories. Also traders including flight booking intermediaries try to pressure consumers during the booking process by regularly informing them that the price can change quickly.
• False scarcity
  ‘Only three items left in stock’? Often false scarcity tricks consumers into placing something in their basket just not to miss out on it. Not only do consumers associate scarcity with high value goods, as soon as they have added the item to the basket, they might already have subconsciously committed to buying it. Maybe the website will even send e-mails the next days asking consumers what is holding them back from purchasing this item or using the service which ‘honestly comes at a really interesting price’. But does it? While looking for something specific the website shows the consumer other options that might interest him/her and deals that he/she is missing out on. The consumer receives deals and discounts allowing to buy more for the same amount of money but he/she always ends up spending more as of course not everything he/she chose is on sale?
• Reviews
  Consumers are looking at all the comments and reviews posted by influencers or other users telling them how good this product is. Social proof via testimonials is also one of the dark patterns used to get them into buying specific items.
• Cancellation of purchase
  A consumer decides not to go for a product or service and wants to cancel the purchase? A well displayed message such as as ‘no thanks, I hate saving money’ or ‘no thanks, I hate receiving good deals, I prefer to pay full price’ will try to shame them into compliance.
• Insurance
  Some booking intermediaries, if the consumer doesn’t add the proposed insurance (travel, baggage insurance, etc.), will ask if he/she really wants to travel without insurance, as this can be a higher risk.
• Click bait
  Some consumers think they have seen an important news but once they click on it, it turns out to be an add for a product.

Tricked into a subscription

• Free trial
  The first thing you see is a free trial (for goods or services) but you have to give your credit card details? Look carefully, somewhere hidden you are most certainly entering a subscription with a monthly or annual fee if you do not cancel the subscription in time. And the trader might just forget to inform you that the free trial period is running out. Always carefully read all the tick boxes and options. It takes a little time but might prevent bad surprises.
• “Vip” or “Prime” subscriptions
  The price applying to the “VIP” or “Prime” subscription is more visible (bold) than the initial price, Consumers do not always notice that they subscribed in the end to a “VIP” or “prime” option to have access to this better tariff.
• Cooling-off period
  Keep in mind that you might have a cooling off right. If French law is applicable, be aware that there are also rules governing automatic renewal of contracts.
• Regular deliveries of the same
  The website leads you into believing that with regular deliveries of the same (type of) product you will save money (and never run out). Don’t get pushed in a subscription and overconsumption. You may be entitled to a cooling off right. If so, and as the contract provides for the regular delivery of goods during a defined period, the cooling off period starts the day after the first goods are received.
• Terms and conditions
  For some offers proposed via social media, no reference is made to any terms and conditions. They are only visible on the website of the trader. When trying to cancel, a new order, less pricy with little less content is always offered to stay in the subscription. 

Impossible to cancel an online subscription

Sometimes consumers actually remember to cancel a subscription but whereas it took only a couple of clicks to subscribe, it takes them in circles on the website and they still can’t figure out how to get out of this contract. They have really looked everywhere but there is no possibility to cancel the subscription on the app they downloaded, they need to connect on the PC version of their customer account. This is burdensome and shouldn’t be like this. Enforcement authorities should look into this pattern.

Automatic renewal of contract? Please see the specific ECC-Net input on this topic on this page under subscription traps.

Consumers receive software update notifications indicated as ‘vital, ‘crucial’ or ‘necessary’ but they can not cancel this option or opt out of it. Even though the trader must make sure that customers are fully informed about the consequences of accepting the change, see also a recent action of the CPC network and European Commission concerning a major messaging service.

Confused by unclear questions or wording

Only when looking carefully consumers see that negatives or positives are in a wrong place. Double negatives actually got them into something they didn’t want to do. 

Consumers are not really presented with a choice but a double question, the second just formulated differently than the first one tricking them into saying actually yes not no, or opting in instead of out.

Currencies and personal data in video games: many games use in-game currencies and since the currency does not contain explicit information about how much it corresponds to in a real currency, it is easy for consumers to spend more than you first thought. See ECC-Net input on In app purchases & in-game purchases: the billion-dollar business with additional content as well.

Tricked into revealing more of your privacy then consumers intended

Consumers have seen these messages telling them that tracking will help them to get an improved service. But the trader doesn’t actually tell them what they are using your data for? The social media consumers want to subscribe to have a preselection of privacy settings which encourage to make personal data and posts available to all, or a larger audience than initially intended. Only manually, can consumers restrict the reach.

Not to allow access to personal contacts or location consumers need to go through multiple steps to opt out from this preselection. Sometimes revealing personal data can allow to secure a discount. 

ECCs have seen cookie banners popping up everywhere. Consumers do not know that they do not have to accept cookies. Also dark patterns are used for example only announcing ’I accept’ or ‘I want to learn more’ buttons not showing an easily recognisable refusal option. Sometimes consumers also have to manually deactivate every single non-essentiel cookie.

The French data protection authority CNIL has published guidelines applicable to all French users saying that users need to have a clear choice between ‘accept’ and ‘reject’, if there is a possibility to accept all, there must be a possibility to reject all as well.

Dark patterns are used to getting consumers into spending money but this is what this is really about: consumers spending more time on these websites, apps etc, and giving out as much data as possible about themselves. Data has a real value for many businesses and the more data consumers reveal the more connections the seller can make and target them with advertising. Digital marketing has come to a point where even sales interfaces are different according to the users, their patterns and behaviours.

Is there a legislative response in the EU to dark patterns?

Today, there is no specific definition nor legislation for dark patterns within the EU. Dark patterns, concern many policy areas from competition, to consumer law and data protection but also artificial intelligence etc. The directive on consumer rights prohibits preticked boxes.

Some techniques may fall under the UCPD, for example describing goods or services for free if you have to pay form them or attracting consumers with especially attractive items and prices which are actually not available, but to go more into specific dark patterns, the directive would need a revision or an update to be more consistent with digital practices. The European Commission has added this as an action point into the new consumer agenda.

More recently dark patterns have specifically been mentioned in the European Commission’s 2020-2025 action programme the Commission making the fight against these techniques one of its priorities.

Also the Digital Services Act (DSA), together with the Digital Markets Act (DMA) provide for reforms aiming at restricting the collection of personal data and the use of behavioural advertising techniques and dark patterns by online platforms and intermediary services.

Dark patterns are also discussed with regard to the new ePrivacy Regulation which should tackle the use of cookies, direct marketing etc.

• In the meantime, first enforcement actions can be seen based on data protection legislation, the GDPR, when dark patterns circumvent privacy principles. See for example the French authority CNIL who has fined a major tech companies, social media and search engines, for making it more difficult to refuse than to accept cookies.
• Other enforcement authorities have also looked into these techniques. The Netherlands Authority for Consumers & Markets (ACM) has published guidelines consumers online against deception.
• The UK Competition and Markets Authority CMA has published a market study recommending that “the government passes legislation to establish a new pro-competition regulatory regime”.
• The French General Directorate for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF) is working together with the manipulent (europe-consommateurs.eu), an Inter ministerial guidelines Directorate for designers and developers on how to protect Public Transformation (DITP) to better protect consumer against online fraud by including behavioural sciences.
• Also more and more information for consumers is out there such as the Irish regulator of advertising listing some rules that Irish consumers need to be aware of.
• The Swedish Halla Konsument has worked on a project about information to consumers about dark patterns during 2021-2022. The project resulted in an informative article on the website as well as information in their and their CPC’s social media channels.
• ECC France has launched a campaign in June 2022 excisting of an article, a press release and social media campaign.

In-app purchases & in-game purchases

Big game titles from American and European developers are no longer only available for consoles or PCs, but mostly for mobile devices such as the smartphone or tablet.

Big game titles from American and European developers are no longer only available for consoles or PCs, but mostly for mobile devices such as the smartphone or tablet.

Free games

Free games, better known as Free-to-Play (Free2Play, or F2P for short), are particularly popular and successful with children and young people.

However, free games are often designed in such a way that a consumer has to invest a lot of time in order to progress or it is difficult to progress without spending money. This happens mainly through in- game and in-app purchases or advertising.

So the supposedly free games offer numerous additional contents for which a fee is charged,
including extra lives, skins (outfits) or loot boxes (treasure chests) that can be earned or unlocked
for real money. Loot boxes are virtual objects, generally presented in the form of a chest, which
offer the player improvements in the game. Also, in Pay-to-Win-Models advantages over other players can be bought in the form of items.

Especially when children and youngsters have unsupervised access to a smartphone or tablet, in-app purchases can become costly, especially when a payment method has been saved to the smartphone and the app has access to it.

It should be noted that usually there is no cooling-off right, once the app or game has been downloaded and the consumer has access to its content. In some cases, as commercial gesture, a trader may allow a consumer to test a game for a couple of hours.

So often the only recourse for parents is to check if their child could conclude a legally binding contract. But this differs highly depending on the national rules applicable to the contract.

• In Austria, any purchase made by a child under the age of 7 is not valid. From the age of 7 to 18, any purchase for which the price is higher than the money they have available can be contested by their parents if they have not given their consent.
• In Finland, minors can only make ordinary, small purchases without the guardian’s consent. This also applies to purchases made on the Internet, for example using a mobile phone or a gaming console. Children may not be enticed to make purchases on websites intended for children, or in games that interest them. Operators, creditors and companies offering games and other services share the responsibility for resolving problem situations. Purchases that a child cannot make independently and to which the guardian has not given their consent are not binding and may not be charged for. The binding nature of the purchases depends on whether the purchases a child has made can be regarded as ordinary and small, considering the child’s age. If many small purchases add up to a whole, which is typical for purchases made in a game, their total value should be examined. When the parent buys a mobile game, their credit card information is usually stored on the device and may be accessible to their child for purchases made as part of the game. Under the contract concluded with the provider, the parent is responsible for the costs of using the mobile device or credit card. The parent may not receive full compensation if their carelessness was partly to blame.
• In France, a minor’s purchase is valid if it is considered an act of daily life. The principle is that any purchase by a minor under the age of 16 must be authorised by a parent. However, if the purchase is reasonable in relation to the minor’s financial situation, in line with his or her daily habits or usual for children of his or her age, it can be considered an “act of everyday life” and cannot be contested by the parents.
• In Germany, children under the age of 7 are not free to make purchases. Beyond that, they can only spend their money on purchases for which they have obtained parental consent. One exception to this is the so-called pocket money paragraph. Children and adolescents may freely use their pocket money as long as their legal guardians agree with the purpose. This means that no prior permission is required to buy toys or sweets. If minors repeatedly make in-app purchases, case law assumes that the parents have at least tolerated this expenditure. In this case, it becomes difficult to dispute the bill. The same applies if the child or young person were given the password for an in-app purchase.
• In Ireland, minors can legally make “basic necessity” purchases (clothing, food, etc.). For other purchases, it is on a case-by-case basis, their validity will depend on their benefits for the child.

Questionable purchases by minors

• Purchase of virtual currency or online sports betting by a child.
• Purchase of an accessory for his character made by a 3 year old child on his parents’phone.

Purchases by minors that can be considered as an act of daily life

• Purchase by a teenager of a dance for their character in an online game.
• Purchase by a teenager of music on an online platform (e.g. Apple Music, YouTube Music....).

Special focus: Lootboxes

Loot boxes are virtual boxes within a game that can contain different items. Depending on the game mechanics, players can unlock the boxes for achieving certain goals, find them or buy them for real money.

The problem is that players usually do not know what to expect when buying them, as the items are randomly generated. The game value and usefulness of the included lootbox content can vary greatly. 

Loot boxes can contain weapons, clothing or special items to customise the appearance of the virtual character. 

• The use of loot boxes is criticised as they contain incentives to buy and gambling-like features. Although the purchase of loot boxes is voluntary, incentives are always created within the game mechanics so that users decide to buy them. This would also be associated with a certain addiction potential. In the meantime, more and more scientific studies are strengthening this hypothesis. But only in Belgium and the Netherlands, paid loot boxes are considered illegal gambling so far.
• In Germany the Federal Government launched a new Youth Protection Act at the beginning of May 2021 which foresees that games that contain incentives to buy and gamblinglike elements are to be labelled accordingly. Furthermore, the addition of loot boxes inside a game might also affect the age classification of that game.
• At European level, the European Parliament published a study in July 2020 on the subject of loot boxes and called for the creation of a European legal framework that is distinct from classic gambling and that protects minors.

Special focus: perma banning of players

Many gamers are attached to their game account. This is because all progress and achievements are usually linked to the respective account and virtual hero.It is all the more annoying when these are lost due to a perma ban (permanent account blocking).

Often, not only a lot of time is invested in unlocking achievements, but possibly also a lot of real money. But when is a provider allowed to block an account? And what can a consumer do against a perma ban? Usually the T&Cs will allow a trader to block player accounts:

• Serious violations (e.g. insulting other players, for example in chat messages or voice chat; Use of prohibited or offensive images and symbols; Use of bots, cheats or similar software, for example, aimbots or wallhacks) against the terms of use can lead to a perma ban.
• Minor violations may result in a warning or temporary ban.

Some providers reserve the right to block an account at any time and for no particular reason. Especially in the case of titles that can generally be played free of charge (“Free-to-play”, “Free2Play” or F2P for short), such a provision may be permissible in individual cases.

Influencers' obligations and responsibilities

Influencers have become an indispensable part of modernmarketing in Europe. Companies have recognised the potential of influencers and use them for their advertising campaigns. Very present on social networks, influencers who test, praise and promote products of all kinds have one mission: to encourage you to buy them. And it works! From lipsticks to tooth whiteners, from slimming products to branded clothing from all over the world, many consumers click on the link of the featured brand to buy the featured product. If influencers are mostly paid or receive gifts for this activity (free hotel stay, clothes, beauty products...), they do not always inform consumers who then think that it is a personal, spontaneous opinion without clearly identifying the commercial promotion of the product. Is this practice legal? What are the obligations of an influencer towards consumers in Europe? Are the rules of influencer marketing the same all over Europe or would EU intervention be suitable to hold influencers liable?

What are the obligations of influencers in Europe?

The Unfair Commercial Practices Directive may apply to influencer marketing3 in their position
as traders and may provide for some protection for consumers but not all complaints received by the ECC-Net can be handled based on UCPD only, especially as no direct remedies are provided for for consumers. For example, UCPD considers that advertising which does not clearly indicate its commercial nature constitutes a misleading commercial practice and is therefore prohibited but does not provide for direct remedies if a consumer entered a contract based on the influencer’s message.

The E-Commerce Directive 2000/31/EC (art.6) as well as the Audio-visual Media Services Directive (EU) 2018/1808 require all influencers in Europe to disclose their commercial partnership as well as the company for which this communication is made. This information and transparency obligation is applicable in every EU Member State. So, an influencer needs to state clearly and comprehensibly that his post/content is an advertisement.

In December 2020, the European Commission proposed two pieces of legislation to overhaul digital business practices in the EU and increase accountability and fairness online: the Digital
Markets Act and the Digital Services Act. Under the Digital Services Act, influencers, as content creators, will have to accept greater responsibility for the content they publish online. While online social media platforms must be clearer and more transparent about how their content algorithms work, and are obliged to monitor posts and remove them if necessary or even suspend accounts, influencers will also have to ensure that their content is appropriate and not misleading or illegal.

Pending European harmonisation, the rules therefore vary from one country to another. Here is an overview by country: 

• The Austrian Media Act and the Code of Ethics of the Austrian Advertising Council require the influencer to state clearly and comprehensibly that it is an advertisement.
• In Belgium the trader who pays influencers to promote products on social media need to ensure that they clearly mention that this is an advertisement. Also Flemish media service providers need to make commercial communications recognisable as such. According to the Flemis Minister for Media, influencers who earn income from commercial communication should be considered as media service providers. 
• There is no specific legislation for influencers in Bulgaria. They have to comply with all the rules on advertising, unfair and deceptive marketing practices.
• In Cyprus, there is no legal basis for influencers. But brands are advised to be careful in their selection of influencers to promote their product or service.
• In France, according to art. 20 of law n°2004-575 of 21/06/2004 for confidence in the digital economy and the transposition of directive 2005/29/EC on unfair commercial practices, influencers must specify that their communication results from a partnership with a brand or a professional and that they are paid to promote the products they present. This can be done verbally, in a text or via the integrated features of social networks (links). If the influencer mentions the partnership orally, in a video for example, he/she must specify it again in his/her description in the first three hashtags associated with the post, this can be done via hashtags for example #sponsored; #partnership. Influencers in France must not undermine human dignity: they must not offend the sensibilities of their audience, they must not devalue another person based on physical, radical or religious criteria, they must not trivialise violence, etc. If the content being promoted is aimed at children or adolescents under the age of majority, they should be informed that parental permission will be required. Influencers should also not engage in unfair competition, i.e., disparaging the products or services of a competing brand or another influencer.
• In Finland the commercial cooperation between companies and influencers should be communicated to consumers in targeted influencer marketing in accordance with the Consumer Protection Act and influencers are required to clearly inform the consumer of the commercial nature of their marketing. In 2019, the Finnish Consumer Ombudsman issued a guideline for influencer marketing in social media.
• In Germany influencers who sell goods, offer services or market their own image using social media such as Instagram are running a business. Promotional posts should be clearly identified. Any reference to a brand or product is considered an advertisement if there has been an agreement between the brand/vendor and the influencer and the influencer receives compensation (remuneration or benefit in kind). The advertisement must then mention the term “Werbung” or “Anzeige” at the beginning of the post or video (+ in its description). However, courts have ruled that the labels “#sponsored by” or “#ad” are not sufficient. It is also not sufficient that the advertising nature of the post becomes only apparent upon closer inspection. Rather, it must be obvious to an average user at first glance that the post in question is advertising. However, the post must be excessively promotional by promoting the product uncritically and beyond factual information in order to be considered as advertising. The BGH (German High Court) has ruled, for example, that influencers are allowed to refer to companies on the internet using features built into social networks (such as “tags” in photos on Instagram, which redirect users to manufacturers’ or brands’profiles), without this being considered as advertising. If, on the other hand, the influencer links directly to the brand’s website or Instagram account, this would be advertising.
• In Ireland, Marketing of all types in Ireland is currently regulated by the Consumer Protection
  Act 2007, which prohibits “misleading, aggressive or unfair commercial practices” and now by the Consumer Bill 2022. The new Consumer Rights Bill, Part 9 provides that consumers harmed by unfair commercial practices will have access to effective remedies, including compensation for damage suffered by the consumer and, where relevant, a price reduction or the termination of the contract.
• In Italy, there is no specific legislation on influencer marketing, but influencers, bloggers,
  celebrities, etc. must indicate that their publication is promotional (Directive 2005/29/EC and Italian Consumer Code (transparency principle)). They must mention this at the beginning of the post, in the first hashtags, or in an associated message (#Pubblicità/ #Sponsorizzato da / “prodotto inviato da” (product sent by). The Italian advertising standardisation authority “Digital chart regulation” also stipulates that commercial communication must clearly show its promotional objective in the case of product reviews or endorsements, videos, invitations to events, advertising games, etc.
• The Lithuanian Law on Advertising stipulates that surreptitious advertising is prohibited. Advertising must be clearly identifiable. If consumers are not able to identify the advertisement broadcast in the media, this advertisement must be marked with the word ‘advertising’. If the influencer only receives a free item or service in exchange for being mentioned online, he/she should mention this and use the hashtag #gifted (or #dovana in Lithuanian). If monetary compensation has been received or a long-term partnership has been established, the influencer should indicate that it is an advertisement for a product with the hashtags #ad (or #reklama in Lithuanian).
• In Luxembourg, there is no specific legislation for influencers. They have to comply with all the legislation on advertising. ALIA (Autorité Luxembourgeoise Indépendante de l’Audiovisuel| ALIA) is responsible for monitoring the application of the rules relating to audio-visual services and the media and has the power to impose sanctions. 
• In Malta, there is no specific legislation governing influencer marketing. The rules are the same as those that apply to advertising and marketing, namely the Unfair Commercial Practices Regulation (transposition of the Unfair Commercial Practices Directive 2005/29/EC), incorporated in Part VIII of the Consumer Affairs Act.
• In the Netherlands, influencers are obliged to indicate the advertisement. All forms of advertising on social media are covered by the “Stichting Reclame” code. In addition, the Dutch Media Authority, which controls advertisements on traditional media, also regulates influencers on social networks on the basis of the Dutch Media Act (transposition of Directive 2018/1808).
• Influencers must inform the consumer whenever they receive a payment or a gift for promoting a good or service. Portuguese law considers any communication with a commercial relationship (with monetary or in-kind payment) to be advertising. The same applies when the publication promotes specific products or services through links or a promotional code.
• In Spain, it is an illegal practice to conceal a partnership. There is a Code of Conduct for influencers who advertise, which states that all content (graphic or audio-visual) generated by partners or adherents to the Code is considered advertising content subject to control by the Spanish authority “Autocontrol”, if it promotes products or services in the context of a commercial partnership (editorial control of the brand over the content) with compensation
  (payment or free delivery of a product, free entry to an event, gift vouchers, trips, etc.).  Also, the advertising nature of influencers’ comments or the digital content they disseminate must always be properly identified to their followers/potential consumers. If the nature of the advertising is not clear and obvious, they should supplement their posts with mentions such as “#advertising”, “#advertisement”, “#Brand ambassador”, “#Thank you to [brand]”, “Gift from [brand]”, “Sponsored travel”, etc. There is also an ex-post control mechanism which allows complaints about breaches of the code to be made to the Autocontrol advertising panel (which is an ombudsman body). 

How can influencers know about their obligations?

• The Austrian Advertising Council has created a website to enable influencers to check whether their message should be considered as an advertisement or not.
• The Belgian Advertising Council and FeWeb have published recommendations on online influencer marketing to help influencers comply with the legislation and better protect consumers. The Jury for Ethical Advertising Practices monitors compliance with these rules by giving preventive advice and taking non-binding decisions following complaints. But these guidelines only apply to influencers who receive compensation (monetary or in-kind) for their advertising and only if that advertising is controlled by a professional, a brand that gives clear instructions to the influencer on how to advertise its product. According to the guidelines, these influencers must mention the word “advertising” or “sponsorship” in their advertisements in a way that is understandable to the average consumer they are addressing. The use of a hashtag is one possible way to do this. It is also recommended that the logo or brand of the professional for whom the influencer is promoting is clearly mentioned, to make it clear that this is a commercial message. It is the influencer, not the marketer, who is responsible for following these recommendations. 
• The National Council for Self-Regulation (NCSR), a non-commercial association of public utility, has published ethical rules for advertising and commercial communications in Bulgaria which also apply to influencers or bloggers. The full set of rules is available in English.
• The Finnish Consumer Ombudsman has also published guidelines on how sponsored content should be mentioned in social media.
• The Hungarian Competition Authority issued guidance for influencers and also conducted official proceedings against some of them.
• In Ireland, a 2021 survey by the Advertising Standards Authority Ireland (the marketing regulator) found 51% of surveyed Irish consumers were concerned by the lack of transparency in influencer marketing. They have the following guidelines. 
• In 2019, the Consumer Rights Protection Authority in Lithuania (SCRPA) carried out a check on influencer marketing, it was found that only some of them clearly indicated that they had received some form of monetary payment, a product or service for free, a commission. Thus, in December 2019, guidelines on social media advertising were published. 
• The local Maltese authority is in the process of preparing guidelines to the influencer marketing industry on how and when to disclose commercial practices. The scope of these guidelines will be that of facilitating the industry’s compliance with the relevant rules.
• The Polish Office of Competition and Consumer Protection (UOKiK) penalised some well-known influencers in the past for misleading claims and blurring the lines between honest, unbiased reviews and blatant advertising. in cooperation with stakeholders from the marketing/advertising landscape (such as the Advertising Council and relevant trade associations) they are in the process of preparing a code of practice for influencers.
• The “Direção-Geral do Consumidor”, the Portuguese advertising authority, has published
  a guide for influencers in 2019, a best practice guide for digital marketing. The guide is now
  available in a bilingual version (PT and EN). 
• The Swedish Consumer Agency did a review of influencers obligations and responsibilities in social media in 2020-2021. Inadequate influencer marketing was the consistent impression after the review. The Swedish Consumer Agency has produced a guide to help those who blog or write in other social medias to do the right thing when it comes to marketing, and also how to follow the law. More information can be found in Swedish on their website. Also, OECD has published in 2019 a “Good Practice Guide on Online Advertising” 

Can influencers be liable for nondelivery or non-conforming purchases?

Influencers who present a partner brand’s products or services on social networks do not force consumers to buy them. They are not salespersons either, since by clicking on the link they share with consumers, the latter are usually redirected directly to the brand’s website or social network page, where they can buy the product or subscribe to the service.

This way, influencers cannot be held directly responsible if there is a problem with the order. If a consumer doesn’t receive an order or receives a faulty product, the consumer should contact the seller who is solely responsible for the order. 

The only exception would be influencers have created their own brand (e.g. of jewellery, clothes or make-up) and therefore their own company. 

The only recourse for consumers EU wide against an influencer who has promoted a defective product or a fraudulent site is to take legal action for unfair or misleading commercial practice on the basis of Directive 2005/29/EC, which has been transposed in each EU country.

Pitfalls of influencer marketing

Through their strong presence in social networks, influencers are valued and their opinions are considered important and trustworthy. In this way, they have a targeted influence on the opinions, purchasing decisions and interests of their subscribers and consumers. And it is precisely this direct access to specific groups of people that companies value in influencer marketing.

Know Your Customer (KYC)

KYC generally refers to an internal process for verifying the identity of a customer in order to avoid identity theft or payment fraud as far as possible. This term is particularly present in the banking sector but also telecommunication where verification includes the fight against money laundering and terrorism.

The aim of these checks is therefore to minimise the risk of fraud by trying to find out from the start of the registration or ordering process whether a consumer is a “good” customer. But not only that... 

What is the basis for this verification? 

The consumer’s personal data and purchasing behaviour! The more easily accessible the data is, the better for the online merchant. So what data is used? Very classic, it will first of all be 

• The consumer’s name
• Postal address
• E-mail address
• Telephone number
• IP address, or even the type of equipment
  used (PC, smartphone, operating system,
  etc.)

The name and place of residence are often enough to query in real time a so-called “scoring” service that evaluates the solvency of customers according to rating methods. Many merchants are indeed tempted to implement software on their sites that connect to such databases. If, for example, a consumer lived in Germany and bought from a German e-tailer, the Schufa will allow him to check the debt rating.

The professional will then check the bank or payment card details. The aim is to check whether it is:

• False credit card details
• Stolen credit card or bank account details
• stolen account information

In principle, an online merchant operating in France cannot request a copy of the payment card even if the visual cryptogram and part of the numbers are masked. This might not be the case in all EU countries.

When scoring, the data provided goes through a mathematical prediction process that determines a scoring value. This value then provides a current prognosis of the customer’s future payment behaviour. If the value is very good, the customer can be offered all payment methods from the first order onwards, e.g. also payment only after receiving an invoice. If, on the other hand, the customer has a poor value, he or she will only be offered the option of prepayment, for example. Regular customers are naturally offered riskier payment methods such as credit cards, SEPA direct debits, for example.

It is also possible that the e-tailer will ask the consumer for a copy of the identity card, or even a second document proving the consumer’s identity, in order to avoid the risk of usurpation. Particularly since the switch to biometric identity documents, many software packages are available to merchants to facilitate these checks. 

• In Bulgaria a law prohibits traders, except for some, from requesting a copy of an identity card. According to the Personal Data Protection Act, “An administrator or processor may copy an identity document, a driving license, or a document for residence only if provided by law.” At the moment, this is not provided for in the Consumer Protection Act or other consumer laws.
• In the Czech Republic, according to the AML Act, in case of anti-money-laundering measures, the seller is allowed to make copies of identity cards and passports even if a consent of the holder is not granted. The Czech law makes no difference between online and offline orders in that matter.
• In France, for a payment by card, the merchant can indeed ask for proof of identity but cannot demand it. The customer can refuse. The French data protection authority CNIL clearly states that if the collection of the cardholder’s identity is not necessary for the transaction, it should not be collected.
• In Germany there is no law prohibiting full copies of an identity card. However, the ID card holder must be informed that he or she may black out any information that is not relevant for the intended purpose. This includes the serial number, the personalised security thread, the access number and the machine- readable zone. However, it must be recognisable that the copy of the identity card is a copy. For example, the note “copy” on the printout is sufficient for this. But: Persons other than the ID card holder are not allowed to pass on the copy to third parties.
• There is also no specific law in Hungary prohibitting online sellers from asking a consumer for a full copy of an identity card, but since it is not necessary for the fulfilment of an online contract it might be considered a breach of data protection provisions.
• In Italy, there is no law prohibiting complete copies of the identity card, but it’s not allowed to pass the copy to third parties. 

Some professionals, including payment services, offer identity verification by selfie or video with verification of the consumer’s ID. 

Recently, consumer protection authorities in several countries have again taken an interest in this issue in the context of the practices of the Vinted platform, which are being monitored by European data protection authorities. They are focusing in particular on the operation of the website, which requires the sending of a scanned copy of the identity card in order to release the amount of transactions made on a user’s account. Checks will also be carried out on the legal basis associated with this scheme, the procedure and criteria for blocking an account and the data retention periods. 

Specific rule in the field of tourism

When booking a hotel or other tourist accommodation, consumers may be asked to send a copy of their ID.

• For accommodation bookings in Austria, a guest sheet must be filled out (“Gaesteverzeichnisblatt”). Several pieces of information are required from the main traveller, first name, surname and date of birth are sufficient from the fellow travellers. If there are more than 4 fellow travellers, a supplementary sheet must be attached. The guest register is to be kept either electronically or with a signed guest register sheet collection. This data must be kept for 7 years, or longer if necessary to fulfil legal obligations.
• In Bulgaria hotels fill in “Address card” and register accommodated tourists. The staff may request to see the ID card to check the data necessary for filling this Address card, but they have no right to photocopy it. According to the Tourism Act -”Persons performing hotel activity keep a register of accommodated tourists with the content of the data approved by the Minister of Tourism and published on the website of the Ministry of Tourism. The entries in the register shall be made immediately upon the tourist’s accommodation. According to Foreigners in the Republic of Bulgaria Act, “persons, performing hotel business, upon accommodation of a foreigner shall register him in the register under the Tourism Act, in which they enter the full foreigner’s names indicated in the passport, the date and year of birth, citizenship, passport number or the travel document replacing him, as well as the period of his residence at the tourist site.” But as indicated above, they have no right to take a copy of the identity document.
• In the Czech Republic; accommodation providers, or foreigners, are requested to provide to state bodies the following information: Data provided to the Czech Statistical Office. – this report contains, among other data (not related to the guest), country of domicile of the guest and duration of the stay (number of nights) – this applies to all providers of mass accommodation (more than 5 rooms or more than 10 beds, i.e. mostly hotels, but not Airbnbs). Data provided to foreign police – this report contains name, duration of supposed stay, date of birth, nationality, passport number, visa number, domicile abroad, address of stay in Czech republic and signature. This applies to almost all foreigners (some exclusions apply, e.g. persons younger than 15 years). Foreigners are usually providing this data via the accommodation provider. 
• In France, upon arrival, a police form is required when a foreign guest stays in a hotel. The accommodation provider is therefore obliged to have the foreign guest (whether or not an EU citizen) complete and sign an individual police form. Its legal status was simplified and modernised by decree no. 2015-1002 of 18 August 2015 (article R611-42 of the Code on the Entry and Residence of Foreigners and the Right of Asylum). The police record may be kept in dematerialised form. The system leads to the creation of personal data processing exempt from declaration to the CNIL because it is constituted for a reason of general interest, but all necessary precautions must be taken to preserve the security of the data processed (confidentiality, integrity, etc.). At the end of a six-month period, the files must be destroyed in a definitive and secure manner. The host has no authority to check the authenticity of the identity document supporting the information entered by the foreign national in a police record (Article L611-1 of the aforementioned Code), nor to take a copy of it. The foreigner’s refusal to fill in the police form (an obligation in the public interest) could be regarded as constituting a legitimate reason for refusing to sell within the meaning of Article L 122-1 of the Consumer Code. On the other hand, contractual clauses may provide for the transcribing of information provided by the customer at the time of booking, who only has to sign the form upon arrival (information of 26 January 2013 Nor INTV 1602523).
• In Germany this depends on the federal state where the hotel is located. Most states require hotels to fill in so called “Meldescheine”. This is primarily for statistical purposes of the city/community, not for the police. The form contains the dates of the stay, name and nationality of all travellers (if they are from a foreign country) and also the number of the identity card of the “main traveller”. The forms must be kept for one year and then have to be destroyed within 3 months after that time period has ended. 
• Also in the Hungarian hotel sector, there are strict registration rules of guests to be carried out by hotel operators. Identity cards and personal data are recorded. The hotels are connected to a government database in order to share statistical (and not personal data).

KYC in the banking and financial sector 

Unlike other sectors, where this requirement is part of good management (and is included in
membership contracts or other contracts), KYC is highly regulated in the banking and financial
sector, and its provisions are set out for the fight against money laundering and terrorist financing as well as due diligence obligations. However data protection authorities already had to step in in order to remind of the necessity of proportionality.

• For example, the Austrian authority has decided that for a change of 100 € no ID can be required.
• In Bulgaria, the Measures against money laundering Act allows banks, notaries, insurers, reinsurers and insurance intermediaries, lawyers, and accountants to ask a consumer for a copy of an ID card. ID cards can also be requested by other traders as Postal operators licensed to handle postal money orders, the currency exchange offices; persons providing by occupation intermediation in real estate transactions, and the traders in arms, oil, etc petroleum products. Persons offering a loan of money against the deposit of an item of property as security; the organizers of gambling games; persons that trade or act as intermediaries in the business in works of art and persons that provide exchange services between virtual currencies are also allowed to do so.
• In Germany unlike hotels and shops, banks and insurance companies are allowed to demand, make and keep an unredacted copy of an ID- but only for five years. This exception is intended to curb and fight organised crime. The number of companies affected by the Money Laundering Act is very high. An exact and exhaustive list of those obliged to comply with the Money Laundering Act can be found in Section 2 (1) of the Money Laundering Act. In addition to companies from the financial and insurance sectors, notaries, lawyers, tax advisors, auditors and casinos are also listed. The Money Laundering Act does not apply to those who are not explicitly listed. From the non-financial sector, the following industries in particular are affected by the Money Laundering Act: Insurance intermediaries (only for certain products; e.g. life insurance); auditors, certified public accountants, tax advisors and tax agents; trustees; real estate agents, organisers and intermediaries of games of chance, persons who trade commercially in goods. In the area of traders in goods, car dealers, jewellers and watchmakers, premium consumer electronics dealers, art and antique dealers and luxury goods dealers are primarily affected. Products with larger amounts of cash are more frequently purchased from these dealers, which is why they can easily be misused for the purpose of money laundering.

Is there any other reason for an online site to score its customers than to check their identity and solvency? Yes! To develop their business. KYC allows the merchant to tailor the customer experience, even to the point of adapting and customising the website interface.

Smart merchants also make targeted use of their customer knowledge for marketing actions or
special offers. Does a consumer regularly participate in customer surveys etc.? The e-merchant will assign a score based on all the data available. In addition to the data mentioned above, he will be able to use:

• Socio-demographic data: age, sex, family situation, profession.
• Psychological data: interests, opinions.
• Behavioural data: purchase history, date of last purchase, frequency of purchases, response rate to emailings, etc.

Depending on the scoring and buying behaviour a consumer could also be considered as an occasional customer, a regular buyer or even a VIP customer. The merchant will be able to adapt
his marketing offer according to the status: e-mail and dedicated offers, special offers, discounts, product previews etc. (see ECC-Net contribution on dark patterns).

But it also serves to monitor your buying and claiming behaviour. A systematic check will show whether a consumer often complaints to customer service; disputes payments or initiate chargebacks. It happens that merchants feel that a consumer has made too many returns and stops accepting orders or closes customer accounts? Even in France with a legislation banning refusal to sell, certain legitimate reasons are allowed, including “inappropriate behaviour by the consumer, bad faith”. However, it is rare that traders inform the consumer about the exact reason why they banned the particular user.

What about GDPR?

While it is understandable that the trader tries to limit the risk of fraud, also in the interest of his customers whose identity has been usurped, he must nevertheless respect at European level the protection granted to customers under the General Data Protection Regulation.

Thus the constitution of any customer list must be proportionate and justified. It must also be updated and corrected, or the data must be deleted after a certain time. Of course, consumers must be informed if their data is included in any lists!

The procedures for entering into a relationship, transmitting strictly necessary data, storing, updating identification data and deleting data once the relationship has ended must comply with the requirements of the GDPR.

The Berlin data protection authority issued a ruling in 2019 against a bank that kept the data of former (probably problematic) customers on a blacklist so that they could not open new accounts. The data protection commissioner did not see this as a legitimate interest to store this
data and imposed a fine. One reason why there cannot be a legitimate interest is that in the EU,
there is an obligation to contract with consumers for basic bank accounts.

For example, the sharing of customer information between different legal entities of the same group cannot be done without the customer being informed, expressing his consent, being able to object to it, accessing it and rectifying it, and being able to transfer his data to another banking institution for example (portability). However ECCs have heard about so called black lists of customers.

Presentation of information (online buying)

All consumers, when buying online, have experienced many times complex and difficult to understand Terms and Conditions as well as hidden information about their purchase that comes to their attention after the final payment. 

The better consumers are informed about their rights, the more trust they have in buying
products, online. The clearer information is provided upfront, the fewer misunderstandings
and disputes arise at a later stage. 

The EU law covering the mandatory information that a trader has to provide to the consumer for
the conclusion of an online contract is covered by the Consumer Rights Directive 2011/83/EU and the Unfair Commercial Practices Directive 2005/29/EC.

Is the above legislation sufficient and is it respected by traders in practice? What ECCs usually see as problematic:

• The font size and contrast colour picked are usually not properly selected, thus the consumer easily misses information. A lot of information is hidden by the use of very small font.
• Information provided is not translated into all targeted consumers language, especially the T&Cs.
• Complex and confusing language is usually observed in T&Cs.
• Shopify (or other template provider) pages usually have the same T&Cs, Privacy Notice and Code of Conduct which are not adapted to their specific services and/or goods.
• Email address and telephone number of the trader is missing (Omnibus Directive specifies that both contact means should be available).
• Total price (including all additional charges and taxes as well as shipping costs) not apparent and well explained in the product display page/ offer page.
• In subscription cases, recurring fees or any additional consumption bases charges are usually not indicated.
• Delivery information and from where the product is sent are usually missing.
• Product information, listing all the characteristics of the selected product are not always listed in the offer page.
• Consumers rights information in relation to 14-day Right of Withdrawal (cancellation) is not always available or often hidden in small letters.

In France, the information a trader must communicate to a consumer in case of distance selling is specified and reinforced, according to a decree dated March 25, 2022. This is the last element of the transposition in France of the European directive on the modernization of consumer protection, which comes into force on 28 May 2022.

In the case of distance selling, on the Internet or outside a store, the prior information that a consumer must receive from the seller is reinforced, according to a decree dated March 25, 2022.

The list includes 15 obligations to be respected, instead of 6 previously. Among the most important are:

• The identification of the seller: name or corporate name, address of the establishment, telephone number, email address, address and identity of the professional on whose behalf he acts.
• The means to ensure that the consumer is able to keep his written exchanges with the professional on a durable medium, including the date and time of these exchanges.
• The terms of payment, delivery and performance provided for in the contract.
• The terms and conditions for handling complaints.
• The legal guarantee of conformity, the guarantee against hidden defects and any other applicable legal guarantee.
• The commercial guarantee and after-sales service.
• The conditions of termination, for openended or tacitly renewed contracts, as well as the duration of the contracts.
• For digital content and services, the functionality of the goods concerned, their compatibility and interoperability, as well as the applicable technical protection measures.
• The contact details of the mediator or mediators to whom the consumer can turn.
• The cost of remote communication for the conclusion of the contract when this cost differs from the basic tariff.
• Any codes of conduct applicable to the contract and how to obtain a copy.
• The minimum duration of the consumer’s contractual obligations.
• The possible deposit and other financial guarantees due by the consumer.

On the other hand, the withdrawal form, which must be provided and whose model is strictly defined, must include the supplier’s e-mail address, which was not previously required. This decree is the last element of application of the ordinance n° 2021-1734 of December 22, 2021, transposing into French law the European directive of November 27, 2019, on the modernization of consumer protection. Its provisions came into force on 28 May 2022. They aim to strengthen consumer protection, particularly in cross-border transactions, which are increasingly numerous in Internet sales, by improving the prior information that must be communicated to the buyer and by increasing penalties in case of infringement.

Vulnerable consumer

The current framework of the Unfair Commercial Practice Directive describes ‘the vulnerable consumer’ and ‘the non-vulnerable consumer,’ as if consumers neatly fall into either of those categories. The idea of the ‘average consumer’ permeates large parts of European consumer law and has been pivotal in building a narrative of consumer empowerment and enabling consumers
to protect themselves through active and well-informed choices in the marketplace. This is contrasted by the ‘vulnerable consumer’ – a concept that singles out certain groups of consumers that are more susceptible to unfair commercial practices than others, and less able to protect themselves.

In digital marketplaces, most if not all consumers are potentially vulnerable. With the digitization of consumer markets, consumers as well as traders increasingly rely on algorithmic profiling, automated decision-making, and predictive analytics. These systems are largely data-driven, using data to recommend services, remind us of products that we might still like to buy, or provide us with personalized offers and promotions. The overall objective of these practices is to render consumers receptive to digital marketing strategies that use digital technologies to optimize commercial practices with the goal of selling products and services to consumers.

What protection can the concept of consumer vulnerability offer the digital consumer, is the distinction between the average and the digital consumer still fit for the digital age, and if not, do we need a new understanding of ‘digital vulnerability’?

In 2016 the European Commission communicated an updated and extended definition of the ‘vulnerable consumer’. “A consumer, who, as a result of sociodemographic characteristics, behavioural characteristics, personal situation, or market environment:

• Is at higher risk of experiencing negative outcomes in the market.
• Has limited ability to maximise his/her wellbeing.
• Has difficulty in obtaining or assimilating information.
• Is less able to buy, choose or access suitable products. 
• Is more susceptible to certain marketing
  practices.

This definition takes into account that consumer vulnerability is situational, meaning that a consumer can be vulnerable in one situation but not in others, and that some consumers may be
more vulnerable than others.” Essentially this means that consumers are not simply vulnerable, but that some market structures and configurations make them vulnerable, or exploit their vulnerabilities.

• In Finland, even though there is no specific definition of vulnerable consumers in the Finnish legislation, the concept of vulnerable consumer is included in the area of consumer protection. While “vulnerability” is not specifically mentioned, the concept is transposed through the wording “consumers who are particularly impressionable due to their age, disability or credulity” (Consumer Protection Act, chapter 2, section 3).
• In Portugal, there is legal definition. DL n.o 57/2008, art. 6.o a) mentions vulnerable consumers as being more likely to be deceived by the professional due to the consumer’s physical or mental illness, age or credulity, if the professional could have reasonably foreseen that their conduct was likely to cause a distortion.
• In Ireland, the definition of ‘vulnerable consumer’ tends to be defined sectorially. Therefore, there are vulnerable customer policies for various industries and companies. Generally, vulnerability tends to mainly mean someone with an intellectual disability. “In digital marketplaces, most if not all consumers are potentially vulnerable.” 

Example of ‘vulnerable customer’ in the financial sector: The Code currently defines a vulnerable consumer as follows: “A “vulnerable consumer” means a natural person who:

• Has the capacity to make his or her own decisions but who, because of individual circumstances, may require assistance to do so (for example, hearing impaired or visually impaired persons). 
• And/or has limited capacity to make his or her own decisions and who requires assistance to
  do so (for example, persons with intellectual disabilities or mental health difficulties).

In Austria, there has been a legal entitlement to a so-called “basic account” at the bank since 2016. This is a payment account with basic functions. This account must be offered by all banks and may not be dependent on the purchase of additional contracts. There are only 2 legally defined grounds for refusal (other account is existing already, committed crime). Particularly vulnerable consumers (e.g. who previously had no account or due to language difficulties (EU foreign countries)) must be supported by the bank free of charge. For socially and economically particularly vulnerable consumers, the account may cost a maximum of €41.73 (otherwise €83.45). 

Ticket scalping

Unauthorised reselling tickets websites offer to consumers event tickets which have been acquired through dubious practices. There are numerous websites reselling tickets to European consumers. The sellers on these sites are often professionals who list hundreds of tickets for inflated prices, which they acquire either by using a specialised, automatic software (bots) or with the use of multiple credit cards.

Problems related to the resale of event tickets:

• Non-delivery or delayed delivery – this is a particular problem when the consumer has purchased the ticket last minute and has arranged for delivery to the hotel or even the ticket office at the venue. There may be a delay in receiving the ticket you ordered, and then, close to the event, you’re told that the tickets you ordered are no longer available, but there are other tickets at a higher price.
• Wrong tickets – the ticket states a different event or category. If you buy the ticket from an individual seller or unauthorised source, they may be hard to trace if it turns out to be not what you ordered.
• Invalid or fake/forged tickets or tickets for non-existing events – essentially, fraud.
• Duplicated tickets – one turns up to the event only to find someone else sitting in their seat or they are denied access into the event.
• Tickets for certain major events are personalised (for example, name and security code) so if you buy from unofficial sources, you run the risk of being denied entry.
• The company has gone into liquidation, or the website is suspended by the time the consumer expects physical delivery of the tickets.
• If the event is cancelled or postponed and you have problems getting a refund.
• Restrictions placed on resold tickets – In a bid to tackle ticket touting and the selling of over- priced tickets, some artists, promotors, and organisations are placing quite a lot of restrictions on event tickets recently. Some of these include a requirement to present the purchasing credit card and ID to reflect the family name on the ticket.

For example, of the complaints received by ECC Ireland over the past five years in ticket sales, 65% of complaints related to sales on the secondary ticket market. All these complaints related to major musical and sporting events which can be characterisedby high demand and inflated prices. Aside from complaints as to pricing, a significant portion (over 60%) of these complaints related to non-performance i.e. the purchaser failed to receive the event tickets in time or at all, or where the consumer failed to gain admittance to the event with the tickets provided. Of recent concern is the number of consumers reporting to have been unaware they were purchasing on a secondary marketplace at a premium cost, after having been redirected there by the official ticket agent.

EU Rules covering the resale of tickets 

There are specific rules in several countries which prohibit or restrict the resale of tickets in one way or another. For example, the reselling of tickets at more than face value (e.g. in Denmark or Belgium) is banned. Under the French Criminal Code, it is stated that it is forbidden to resell tickets for sporting, cultural or commercial events without the authorisation of the organiser. Ticket resale is punishable by a fine of 15 000€ (30 000€ for repeated offenses). Additionally in France, on 28/5/22 the new UCP rules came into force, following the transposition of Omnibus Directive and commercial practices are deemed to be misleading within the meaning of Articles L. 121-2 and L. 121-3, if their purpose is:

“26° To resell tickets for events to consumers where the trader has acquired them by using an automated means enabling him to circumvent any limit imposed on the number of tickets a person may purchase or any prohibition applicable to the purchase of tickets”.

• In Germany, there is no legislation with regard to ticket resale but there is a judgement by the BGH (Federal Court of Justice) stating that a prohibition in the general terms and conditions to resell tickets is perfectly permissible if the tickets are not purchased for private use. However, according to the BGH, organisers cannot in principle prohibit the sale of tickets purchased by private individuals. A ban on resale agreed in the general terms and conditions of the organisers does not apply to private buyers. If the buyer sells his ticket, for example because he cannot or does not want to attend the event, he is not in breach of contract. Even if it is expressly stated on the ticket that a sale via internet auction houses and/or with a price surcharge is prohibited, this does not bind the private buyer and reseller. The purchase also has no legal consequences for the purchaser. None of this applies if the ticket is personalised, as is the case, for example, at all major football events (World Cup, European Championship, etc.). Personalised tickets may not and cannot be effectively resold.
• In Poland and Ireland, it is illegal to sell tickets for live events, matches, and concerts for more than face-value. But, in most countries, there are no specific rules in place. 
• In the Netherlands and Finland, secondary selling is permitted but with all its possibly associated risks.

ADR in Europe: an ECC-Net persective

The 29 European Consumer Centres (ECC-Net) help consumers engage in cross-border transactions more confidently by providing them with free information and advice on their rights and assist them in resolving cross-border consumer complaints. More than 120.000 consumers are assisted each year.

In May 2022, the ECC-Net conducted an indepth study among all ECCs on their practical experience with national ADRs in the handling of cross-border disputes. The survey covered both cooperation between ECC-Net and ADRs and the functioning of ADRs.

The survey also identified the main obstacles in practice when European consumers try to engage in ADR cross-border dispute settlement and shows possible improvements. The obstacles include lack of trader engagement and compliance and too much variation in coverage and quality when comparing ADRs in different countries and sectors. Language barriers and lack of easily accessible online procedures were some of the problems most often mentioned.

However, the survey also revealed that the ECCs in many countries report that ADRs are working well and that the ECCs and ADRs engage in knowledge sharing and cooperation activities on a national level.

The recommendations based on the survey results include the importance of ensuring more trader participation in cross-border ADR and the necessity to work for effective full ADR coverage in the EU. Recommendations also include finding practical ways to overcome language barriers and improve the online procedures and accessibility of ADRs in another country as well as strengthening the role of the ECC-Net in cross-border ADR dispute settlement

Trader engagement and compliance

European Consumer Centres listed traders’ unwillingness to participate in the dispute resolution procedure or failure to comply with the recommendation given by the ADR entity as the main area for improvement.

If a trader announces in advance that it does not intend to participate in the process, in many countries it is not expedient to take the dispute concerning this trader to a dispute resolution entity if trader involvement is necessary for the ADR to give an opinion or come to a decision. From the trader’s perspective, it should be noted that in many cases they refrain from participating in an ADR-procedure because they usually have to pay for the procedure, whereas it is free of charge for the consumer.

But also, non-compliance with ADR decisions and recommendations in countries and situations where ADRs provide such solutions is an issue, for consumers and ECCs representing their interests. Usually there are no sanctions involved if a trader doesn’t follow such outcome. In many countries consumers are not even informed by ADRs about the compliance rate of specific traders, as name and shame are not an option. Sector specific recommendations are often generic, not targeted at specific traders.

Variation in coverage and quality

The survey done by the ECCs underlines that ADR coverage and the quality of ADRs vary considerably. In some countries, the ECCs report that ADRs offer good service and support to consumers from other EU countries. In other countries the situation is reported to be the complete opposite with fragmented ADR coverage and consumers facing insuperable barriers when trying to make use of ADRs in a cross-border dispute. The following three obstacles have to be tackled to ensure a more coherent and effective ADR scheme in Europe.

Lack of coverage

The ECCs considered the absence of an ADR entity competent to deal with disputes in some countries a remarkable obstacle. In others, even though ADRs exist, they do not cover an entire sector or all traders. Even in those countries where full coverage is appraised, gaps in the system lead to traders not being subject to ADR procedures.

Language barrier

Language difficulties were also highlighted as consumers have to face the reality of 24 official EU languages. Most ECCs hoped that ADR entities would expand their language range to cover not only the official language(s) of their country of establishment but also English, in particular. Today there are dispute resolution entities in, for example, Germany, Belgium and Latvia that offer the possibility to use English as the language of processing

Easily accessible online procedures & vulnerability of consumers 

Feedback from the ECCs clearly shows a need for more use of easy accessible online procedures by national ADRs that engage in cross-border dispute handling. In cross-border e-commerce easy accessible online procedures are a must and in today’s economy absolutely possible. The same goes for dispute handling where legaltech solutions is a rapid growing business.

However, digital fragmentation and new vulnerabilities need to be taken into account. ECCs are well aware of the difficulties some consumers incur when trying to e.g. use online complaint forms. Not all consumers are in a position where they can, alone by themselves, file for an ADR procedure and follow through. In the public interest of consumer protection safety nets need to be put in place, with sufficient human resources, to assist those in need.

The role of the ECC-Net in the European ADR scheme

The ECCs do a lot already in practice to ease the consumers’ access to and use of ADRs situated in other EU countries. There is within the Network considerable focus on enabling all consumers - including those considered as vulnerable consumers - to make use of cross-border ADR dispute settlement schemes.

The most frequent assistance is to broaden our services to include help with filing complaints and to translate correspondence and decision when consumers are not able to do so themselves due to e.g. language barriers and difficulties in understanding procedures and forms.

However, the ECCs are limited in their access to assist consumers due to scarce resources and the constraints linked to the current role of the ECCs.

The ECCs engage themselves actively in cooperation with ADRs in all Member States. The level and intensity in the cooperation varies and depends on many factors related to the ADR scheme in each country.

Regular meetings with ADRs, cooperation protocols and agreed contact persons, trainings, joint events and information material, joint case law studies and ECC employees participating in ADR committees are all examples of ways ECCs cooperate with ADRs today.

On the other hand, ECCs also reports on situations where cross-border cases are looked at as problematic by the ADRs and where the status of the ECCs makes cooperation difficult.

Detailed survey questions ans responses

ADR coverage and availability for cross-border cases

Survey conducted via Webropol in May 2022. Invitation e-mail and link sent to the Directors of each ECC. All 29 ECCs answered the survey. 

The survey touched upon ADR coverage and availability for cross-border cases and the responses were quite diverse among the centres depending on their own experience with their national ADR bodies. 

As the Directive 2013/11/EU followed a minimum harmonization approach it is very normal that the below table indicates such big discrepancies between “awesome” coverage and “so-so” coverage, Member States having taken different approaches.

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Overall, how do you see the ADR coverage/availability in your country (cross-border cases)?

Awesome – When we do not succeed finding an amicable solution our ECC is always able to transfer or signpost consumers with a relevant cross border case to an ADR in our country. 

Very good – When we do not succeed finding an amicable solution our ECC is very often able to transfer or signpost consumers with a relevant cross border case to an ADR in our country. 

Good – When we do not succeed finding an amicable solution our ECC is often able to transfer or signpost consumers with a relevant cross border case to an ADR in our country.

So-so – When we do not succeed finding an amicable solution our ECC is only sometimes able to transfer or signpost consumers with a relevant cross border case to an ADR in our country. 

Not good – When we do not succeed finding an amicable solution our ECC is seldom or never able to transfer or signpost consumers with a relevant cross border case to an ADR in our country.

Our centres were also asked to comment on the performance of the ADR bodies of their countries when it comes to cross-border cases based on their own experience. Interestingly, 13 centres responded that the ADR performance in their country is more than good. While 7 centres responded that its sufficient and 8 responded that the performance is not adequate to the needs of consumers.

Trader compliance

The next topic examined, by the internal survey handed to all 29 ECCs, was about trader compliance. The statistics below clearly indicate that there are a few instances in which traders are obliged to or always comply with the ADR decision, but in most of the cases the compliance is left to the discretion of each specific trader.

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Overall, how do you see the trader compliance with ADR?

Awesome – The traders are obliged to follow ADR decisions or always comply with the decisions from ADR. 

Very good – The traders almost always comply with the decisions from ADR. 

Good – The traders often comply with the decisions from ADR. 

So-so – The traders only sometimes comply with the decisions from ADR. Not good – The traders seldom or never comply with the decisions from ADR.

Not good – The traders seldom or never comply with the decisions from ADR.

ECC Assistance to consumers with a cross-border complaint

The ECCs current service/support level to consumers who have to turn to an ADR can be divided into two categories: 

• Transfer = Assist the consumer with filling the complaint to the ADR and monitor the case and communicate on behalf of the consumer during the ADR process. 
• Signpost = Inform the consumer (via the ECC in the consumers’ country) about the possibility to turn to a certain ADR

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Signposting cases to ADR bodies:

Out of the 29 ECCs, 38% only signpost cases to an ADR body without intervening at the process or transferring the case. Among the reasoning for only signposting and not transferring cases as well, were:

•  ECCs signpost most commonly when the ADR allows submissions in English or other languages, and corresponds in these languages too, so consumers can do it directly also in cross-border cases. 
• The system requires the creation of personal credentials and/or payment of fees, which makes it mandatory for the consumer to be the one submitting the case. 
• ADR bodies refuse to accept cases submitted by the ECCs and require direct submission by the consumer. 
• Lack of ECC resources – signposting is less time consuming and the only option for a few ECCs.

Even though currently 11 ECCs signpost only instead of transferring cases to ADR bodies as well, because of the reasons mentioned above, 9 of them would actually help consumers to fill in the ADRs’ application forms as well and 8 out of the 11 would also help the consumers by translating ADR answers to their national language.

If your ECC signposts, would your ECC help consumers to fill in the ADRs application forms? 

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If your ECC signposts, would your ECC help consumers by translating answers of the ADR from national language?

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Transferring cases to ADR bodies

When it comes to ECCs transferring cases to ADR bodies which includes active involvement of the ECC’s legal advisors, the main criteria entailed in this decision are:

•  Consumers have credible claims and pressure will be added to the traders by the involvement of ECCs; 
• There are language barriers and consumers need assistance by the ECCs; 
• A cooperation protocol already exists between an ECC and an ADR body which eases the handling and follow up of the case on behalf of the consumer.

Further ECC cooperation with ADRs

he European Consumer Centres value an active dialogue and exchange with their national ADR bodies. When it comes to cooperation activities between ECCs and ADR bodies, 23 out of 29 ECCs are having regular meetings and exchanges with ADR bodies. From the responses of the European Consumer Centres, it is apparent that a quite active dialogue and cooperation between ECCs and ADRs already exist and can result in addressing existing burdens in the area of ADR.

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Improving the ADR scheme

The ECC-Net was asked to also suggest improvements when it comes to the better functioning of ADRs in cross-border disputes. Trader acceptance and engagement was the most voted aspect for improvement with 65.5% of ECCs choosing it. The next two, receiving 44.8% and 41.4% of ECCs answers, were about overcoming language barriers and creating better fitted online interfaces and procedures to make participation from another EU country feasible for consumers. 

Among other aspects that could possibly be improved were: 

• Better coverage & sector specialised ADR bodies 
• Faster case-handling, prevention of backlog 
• Lower fees 
• Better understanding of applicable law of another EU country and expertise
• Better information and awareness of consumers 
• Traders to adhere to sectoral ADRs

If ADR(s) in your country could be more relevant for consumers in cross-border disputes, what would be the most important things to improve?

In your opinion, what would it take to improve the ADR scheme in your country and make ADR work better in cross-border disputes?

The role of ECC-Net: an engagement for the future

In order to overcome burdens consumers face, there is a common willingness among the European Consumer Centres to actively help consumers as much as possible when it comes to an ADR dispute. Many consumers still need human interaction and personalised help. 

The same willingness applies to the cooperation of ECCs with their national ADR bodies. Consumers ADRand ADRs receiving their complaints could benefit from the positioning, legal expertise, and uniqueness of the Network, being able to rely on 29 centres in each EU country, Norway and Iceland.

The next two charts describe the assistance ECCs feel they could provide to consumers and ADRs but also the requirements that need to be fulfilled in order to strengthen our collaboration and involvement.

If your ECC, as trader ECC, should do more to help consumers with a cross-border case that can be handled at an ADR, what kind of assistance would then be most relevant in your country? Select the 3 most important ones.

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If your ECC, as trader ECC, should do more than today to help consumers with cross-border cases at an ADR, what would need to change in order for your ECC to be able to help more?

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Urgent Need to Revise EU Air Passenger Rights Regulation (261/2004)

In ECC-Net’s experience, it is becoming increasingly difficult to ensure the application of rights as foreseen by EU legislation and CJEU case law through amicable agreements. Recourse to justice is no longer just a last resort; it is often the only option for consumers. Thus, the rise of private claims companies specializing in airline complaints is not surprising.

To effectively implement air passenger rights, the following suggestions should be considered. Most of these measures were included in the draft revision of Regulation 261/2004 submitted to the European Parliament in 2013 but remain unresolved. Addressing these deficiencies in Regulation 261/2004 should be a matter of priority.

When facing cancellations, delays, or denied boarding, consumers primarily seek good information and assistance. They want to know what is happening and how quickly they can reach their final destination. Compensation is not their primary concern when they board a plane.

We strongly recommend simplifying the regulation in its revision. The current regulation, interpreted through extensive case law, is challenging for ECCs and enforcement officers to apply. A clearer, simplified regulation would help consumers understand their rights better and reduce disputes between parties.

The cases handled by ECC-Net regarding air passenger rights extend beyond Regulation 261/2004, encompassing luggage issues, intermediary problems, and price comparison websites. New contracts, such as multimodal transport agreements—which are becoming more prevalent in these sustainable times—are not covered by the current regulation. No-show clauses and airline insolvencies also pose challenges for passengers. For these emerging issues in the air passenger rights sector, ECC-Net often remains the only body providing cross-border assistance free of charge. 

Therefore, ECC-Net would like to share its experience by broadening the scope of the regulation to encompass all aspects of air passenger rights.

• Airlines should be required to offer rerouting not only on their own fleet but also on other airlines or transport modes, if it allows the consumer to reach their destination earlier and under comparable transport conditions.
• It is essential to ensure that passengers are well protected in cases of intermodal transport, with clear rules regarding the application of rights. For example, there should be clarity on the rights of air passengers versus train passengers when one leg of the journey is by train.
• Airlines should be required to immediately and accurately inform passengers about their rights at the airport, with effective enforcement of this information duty.
• Airlines should apply CJEU case law (e.g., the Nelson case) and guarantee identical rights in the event of flight cancellations or long delays, particularly concerning the amounts and scales of compensation.

Under the current rules, passengers who withdraw from their contract after their flight has been delayed by at least 5 hours are not entitled to compensation. In contrast, passengers who opt for a refund instead of rerouting in the event of a cancellation are entitled to compensation.

A harmonized approach to no-show policies across the EU should be considered to avoid differences in the application and understanding of consumer rights based on the country of residence or competent court.

Clarify uncertainties under Article 7:

• Double compensation
  Should passengers receive double compensation if their alternative flight is delayed or cancelled again?
• Route calculation
  How should the route be calculated if an incident occurs during a multi-segment flight? Specifically, what place of departure should be used for calculating compensation? The CJEU ruling in Case C-559/16 (paragraph 29) does not provide a clear answer to this question, as it primarily addressed a different issue.

Additional recommendations:

• Contact information
  Require airlines to provide their full contact information and claim forms on their websites to facilitate easy contact in the event of a claim. Consumers should always receive a copy of any message sent to the airline.
• Language accessibility
  Airlines should be accessible in the language of the booking process. While airlines often offer websites in multiple languages, customer service is frequently available in only a few. If an airline cannot provide after-sales service in the language of the website used for booking, this should be clearly indicated before the booking is completed.
• Time limits
  Impose time limits for consumers and response times for airlines to encourage airlines to improve their efficiency in handling and tracking consumer complaints, and to streamline compensation procedures.
• Definition of extraordinary circumstances
  Define what constitutes "extraordinary circumstances" and list the events that may justify the non-payment of compensation by airlines.
• Role of NEBs
  Clearly define the role of National Enforcement Bodies (NEBs) with respect to passengers and involve them in the settlement of disputes, especially given their expertise in extraordinary circumstances.
• Complaint forwarding
  Oblige NEBs to forward complaints to the competent NEB, as passengers are often unaware of the principle of incident-based jurisdiction.
• Sanction mechanism
  Enhance NEB effectiveness by implementing a common and dissuasive mechanism for sanctioning companies that fail to respect passenger rights and ensuring communication about sanctions taken.
• Improved communication
  Improve communication and cooperation among airlines, consumer organizations, Alternative Dispute Resolution (ADR) bodies, and NEBs to clarify the role of each party to consumers, facilitate complaint resolution, and exchange data on recurrent issues.
• ADR/ODR evaluation
  Evaluate and follow up at the EU level on the effectiveness of current ADR/ODR legislation. Given that ADR coverage and trader involvement do not seem to meet set targets, it is essential to ensure that each Member State provides ADR in the air passenger rights sector to address individual consumer disputes. The recent directive on consumer ADR and regulation on consumer ODR offer incentives for ADRs. ADR must remain a swift, easily accessible, and, if possible, free option for consumers to ensure it remains viable for passengers.

In order to maximize the potential of ADR in the air passenger rights sector, ECC-Net offers the following conclusions and recommendations.

Legal framework for price comparison websites and booking intermediaries 

To secure the best deals, consumers increasingly rely on online price comparison websites and booking platforms. The ECC-Net has observed a rise in complaints related to both types of intermediaries.

Price comparison websites

Comparing ticket prices before booking is becoming increasingly challenging, sometimes even impossible, as each intermediary determines what to include in their reference price.

To ensure transparent consumer information and promote fair competition among air carriers, price comparison tools, and booking intermediaries, the following suggestions should be considered:

• Inclusion of all costs
  All unavoidable and foreseeable price elements should be included in the headline price to facilitate accurate comparison between operators. Optional price supplements should be clearly displayed next to the headline price at every step of the booking process. The headline price should include:
  • The ticket price.
  • All unavoidable and/or foreseeable service fees, including administrative fees, luggage charges (refer to the section below for luggage prices), seat selection, and credit card fees in countries where such charges are permitted. Even if a consumer might receive a discount later due to their chosen payment method, these costs should be indicated.
  • A breakdown of the final price into different categories, including taxes, clearly indicating refundable taxes.
• Ticket flexibility information
  Price comparison websites should clearly indicate whether tickets are flexible, refundable, or subject to other conditions. They should use the terminology provided by the airline to ensure that consumers can verify the transport conditions as advised by these websites.

Booking Intermediaries

Booking intermediaries often present themselves as acting on behalf of the consumer and may charge a service fee for their services. Therefore, it is suggested that they should be bound by minimum service standards to ensure adequate consumer protection.

• Transparency of ticket and service information
  Booking intermediaries should be required to immediately and accurately inform passengers about the type of tickets and services they are purchasing. This includes details about pricing (as outlined above), whether tickets are flexible or non-flexible, and any special conditions or restrictions imposed by airlines. For instance, airlines may have strict rules regarding ID controls or restrictions on minors traveling alone.
• Explanation of membership/premium systems
  Any "membership" or "premium" systems offered should be clearly explained, with detailed conditions provided.
• Disconnection of flights
  Booking intermediaries should clearly inform passengers about the implications of purchasing disconnected flights. This includes the impact of schedule changes, delays, or cancellations on the rest of the journey and the passenger’s rights to assistance or compensation. They should also inform passengers about practical consequences during travel, such as luggage not being checked in until the final destination.
• Contact information and claim forms
  Booking intermediaries should provide their full contact information and claim forms on their websites to facilitate easy contact in the event of a claim. Consumers should always receive a copy of any message sent to the intermediary.
• Language accessibility
  Booking intermediaries should be accessible in the language used during the booking process. While airlines often offer websites in multiple languages, customer services are frequently available in only a few. If an intermediary cannot provide after-sales service in the language of the booking website, this should be clearly indicated before the booking is finalized.
• Intermediary responsibilities
  Booking intermediaries should act on behalf of passengers in the following situations:
  • Schedule changes or flight disruptions
    The intermediary should promptly pass all relevant information to the consumer.
  • Ticket Changes
    There should be a right to correct spelling errors in passengers’ names, covering mistakes made by consumers and changes made during the booking process by intermediaries.
  • Difficulty reaching the airline
    Intermediaries should assist if consumers have trouble contacting the airline directly.
  • Refund requests
    Intermediaries should facilitate refunds in cases where airlines require issues to be handled through the intermediary.
• Time limits for responses
  Impose time limits for both consumers and booking intermediaries to encourage efficient handling and tracking of complaints and to streamline refund procedures.
• Immediate replies and forwarding requests
  Booking intermediaries should immediately respond to consumer requests or forward them to the airline if the flight is imminent.
• Fee restrictions
  Prohibit booking intermediaries from charging fees for forwarding a consumer’s cancellation request or for refunds issued by airlines. It is not the passenger’s choice to handle these issues indirectly through intermediaries.
• Enhanced communication and cooperation
  Improve communication and cooperation among airlines, booking intermediaries, consumers, consumer organizations, ADR bodies, and NEBs to clarify each party’s role, facilitate complaint resolution, and enable data exchange on recurrent issues.
• Booking process history
  Compel air carriers, online travel agencies, and other intermediaries to provide consumers with a history of their booking process upon request. 

Protection against airlines insolvencies 

In its communication COM(2013) 129 final, the European Commission committed to fostering cooperation among the competent authorities of Member States, monitoring their licensing oversight under Regulation 1008/2008, and evaluating the need for legislative measures to ensure passenger protection in the event of airline insolvency.

For several years, the ECC-Net has highlighted issues related to airline insolvencies, and recent experiences reveal that consumer protection in these cases remains inadequate. With predictions of increased insolvencies in 2020, addressing this issue has become an urgent priority.

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Definition and harmonization of cabin luggage dimensions and weight

The pricing of airline tickets is becoming increasingly opaque, as carriers have the freedom to define what is included in their fares. This often makes price comparison difficult unless consumers meticulously review each step of the booking process to identify additional charges. One notable issue is the pricing of hand luggage, which is sometimes excluded from basic fare tickets.

The problem has been addressed in Italy, where the Competition Authority (AGCM) imposed penalties on Ryanair (€3 million) and Wizz Air (€1 million) for their cabin luggage policies. AGCM stated, "The changes to the rules for transporting large hand luggage constitute an unfair commercial practice, misleading consumers about the true price of the ticket by not including a significant component of the air transport contract—the large hand baggage—in the basic fare."

However, this perspective represents only one country's enforcement authority. There is no harmonized or unified understanding across the EU.

To enable consumers to make genuine price comparisons regarding airfares, including cabin luggage, and to ensure fair competition among operators, the following should be established:

• Definition and harmonization
  Define and harmonize what services are included in the minimum fare across the EU.
• Transparency
  Clearly state at the beginning of the booking process which services are included in the minimum fee.
• Passenger rights 
  Ideally, all passenger rights should be codified in a single location to allow consumers to easily understand and research their rights.

Based on the questions and complaints received by ECC-Net in recent years, we have identified several key issues that require improvement. As consumers increasingly seek to shop cross-border, travel across different EU countries, and access financial services, addressing these issues is essential.

Direct debits

• Companies limiting direct debits to national bank accounts and ignoring article 9 of the SEPA regulation
  Despite Article 9 of the SEPA Regulation being in force, which allows consumers with a second residence in another EU country to have direct debits taken from any SEPA account (such as one from their home country), many consumers are facing difficulties. In practice, traders, including insurance companies, often refuse to execute direct debits from bank accounts in another EU member state. This situation is forcing consumers to open new bank accounts in the country of their second residence.
• Lack of protection against fraudulent direct debits
  Additionally, there is inadequate protection against fraudulent direct debits in some countries. Under the SEPA Regulation, traders can initiate direct debits from a consumer's account using only the IBAN number. Unfortunately, no comprehensive European solution has been established to address the fraudulent use of direct debits. For further details on this issue in France, please refer to the following link: French Parliamentary Inquiry.

Fraudulent financial investment services

• Lack of protection against fraudulent financial services websites
  We frequently receive complaints about fraudulent online financial services. These scams often involve companies offering investments in cryptocurrencies or precious metals, such as bitcoins and gold. Consumers are persuaded to invest, only for these companies to vanish with their money.

Chargeback

• Lack of harmonized chargeback system across EU Member States
  For consumers dealing with problematic online traders, chargeback is often the only means to recover their funds. Paying by credit card is therefore strongly recommended for online transactions. However, the chargeback system is not uniformly implemented across all EU member states. It is essential to improve this system so that consumers have a legal right to chargeback in every EU country, similar to the provisions in some countries. For more information, refer to the ECC Norway report for ECC-Net: Chargeback in the EU/EEA: A Solution to Recover Your Money When a Trader Does Not Respond.

Unclear bank statements

• Need for more detailed trader information on bank statements
  Given the presence of unscrupulous traders who may access consumers' bank accounts through direct debits or subscription traps, it is crucial for consumers to have clear and detailed bank statements. In some EU member states, the name of the trader on bank statements does not always match the name of the account holder, creating potential confusion. To address this issue, we believe new rules should be established to ensure that bank statements provide more comprehensive information about traders.

Opening or closing bank accounts

• Opening and closing bank accounts and updating information: current challenges
  The processes for opening or closing bank accounts and updating related information remain overly complicated and act as barriers to the internal market.
  
  Consumers who wish to open a bank account in another country often find it challenging to do so remotely, as many countries still require in-person visits to complete the process. Additionally, there have been cases where consumers with accounts in foreign countries were asked to update their information but could only do so by visiting a bank branch in person, which is not feasible for everyone.
  
  Moreover, the procedures and documentation required for accessing an account following life events such as succession or divorce are not harmonized across the EU, or even within the same country or bank. This lack of standardization adds to the complexity and frustration for consumers.

ATM withdrawal charges

• Additional ATM withdrawal charges imposed by some Member States
  Although EU legislation mandates that ATM withdrawal charges should be the same in the cardholder's home country as in other EU countries, some member states still impose additional fees. Specifically, consumers in Spain and Italy have reported charges for ATM withdrawals, while in countries like Belgium, such withdrawals are often free of charge.
  
  Spain and Italy argue that these fees are not discriminatory since they apply to all users of their ATMs. However, this practice limits the accessibility and use of financial services within the EU. Consumers should not be penalized for accessing their own money, and such fees undermine the principle of equal financial service access across the Union.

Diversity of bankcards

• Excessive diversity of payment cards across Europe
  The lack of uniformity in payment cards within the EU creates issues for consumers when paying abroad. For example, some countries issue "Visa cards" that function as debit cards rather than credit cards, yet these are not always accepted as debit cards in other member states. Additionally, not all credit cards are equipped with embedded chips, which can prevent their use for purposes like securing deposits at car rental agencies, despite being genuine credit cards. This diversity complicates transactions and limits the convenience of using payment cards across different EU countries.

New bank apps

• Emergence of new financial players
  The market for financial services is expanding with the arrival of new players, such as innovative banking apps. While we currently do not have complaints about these applications, it is possible that consumers are unaware of their right to seek assistance from the ECC-Net if issues arise. Given that these apps require access to consumers' bank accounts, it is crucial to closely monitor their data protection practices and ensure they provide clear information about the level of security they offer.

The ECC-Net: 30 centres across Europe with 15 years of experience and unique expertise

30 centres across all EU Member States, Norway and Iceland, work closely together to resolve consumer disputes in an amicable manner. Each centre is co-funded by the European Union and national governments. By providing a full and centralised service, ECC-Net is committed to empowering consumers and enabling them to take full advantage of the Single Market.

Primary role

The primary role of ECC-Net is to enhance consumer confidence when engaging in cross-border transactions by providing free information and advice to the public on their rights as consumers, as well as assistance in the resolution of cross-border consumer disputes. Recently, it was also decided that the ECC-Net will contribute even more to the cooperation between national authorities responsible for the enforcement of consumer protection laws (CPC-Network), as an external alert mechanism.

The ECC-Net is vital for consumers who are experiencing difficulties with traders from another EU-country, and the Consumer Conditions Scoreboard 2017 shows that the ECC-Net receives more cross-border complaints than alternative dispute resolution bodies or The European Small Claims Procedure. Thus, the ECCs are in a unique position to document the cross-border problems consumers face when shopping within the EU.

Consumer challenges

There are many consumer challenges connected to new developments such as artificial intelligence, connected objects and autonomous driving. However, basic consumer rights still need to be further strengthened and harmonised. Consumer rights are not respected by all, causing great harm across Europe and endangering consumer trust in the Single Market.

In the following chapters, the ECC-Net will share its insight into the most pressing issues facing European consumers today, and provide evidence-based feedback and examples from different Member States to policy makers.

Transport and tourism

Air transport

Providing help and information for air passengers are among the ECC-Nets most frequent tasks, and our expertise on APR issues is often required by various consultants and stakeholders.

In ECC-Net’s experience, it is becoming increasingly difficult to obtain the application of the rights foreseen by the EU legislation and case law of the CJEU through amicable agreements. Recourse to justice is no longer the last resort, it is often the only recourse for consumers. The development of private claims companies specialised in airline complaints is therefore not surprising.

Urgent need for revision of Air Passenger Rights Regulation (EU) 261/2004

Suggested measures

For an effective application of air passenger rights, the following suggestions should be considered: 

• Require airlines to immediately and correctly inform passengers about their rights at the airport.
• Require airlines to offer rerouting not only on their own fleet but on other transport modes as well, if it allows the consumer to reach the destination earlier and in comparable transport conditions. 
• Require airline companies to provide their full contact information or claim form on their website so that they can be easily contacted in the event of a claim.
• Impose time limits for consumers, but also response times for airlines, to encourage airline companies to develop their efficiency in handling and tracking consumer complaints and to streamline compensation procedures.
• Clearly define the role of NEBs towards passengers and involve them in the set[1]tlement of disputes, particularly for their expertise in extraordinary circumstances.
• Make NEB action more effective by providing a common and dissuasive mechanism for sanctioning companies that do not respect passenger rights and communication about taken sanctions.
•  Improve communication and cooperation between different actors (airlines, consumer organisations, ADR bodies and NEBs) to clarify for consumers the role of each of them and facilitate the resolution of the complaint.
• Define the notion of extraordinary circumstances and list the events that may justify nonpayment of compensation by airlines. 
• Introduce the right to correct spelling errors in passengers’ names. It should cover mistakes from consumers and changes during the booking process by intermediaries. 
• Compel air carriers, online travel agencies and other intermediaries to provide consumers with the booking process history upon request

Most of these measures have already been mentioned in the draft revision of Regulation 261/2004, which was submitted to the vote of the European Parliament in 2013.However, they are still not finalised. 

These proposals to address the deficiencies in Regulation 261/2004 should be considered as a matter of priority.  For more information, please refer to the reports and position papers of the ECC-Net, and do not hesitate to get in touch with us.

• Alternative Dispute Resolution in the Air Passenger Right Sector 2017 
• Revision of EU air passengers rights legislation : European Consumer Centers Network position paper (Update by ECC France and Germany 2017) 
• Air Passenger Rights Report 2015 : Do the consumers get the compensation they are entitled to and at what costs ? 
• ECC France and Germany’s position paper : Air passenger rights : why the revision of Regulation 261/2004 is urgent ?

No-show/Cross-ticketing in airline tickets

We all know these cases: the consumer bought a return ticket but for some reason he/she did not take the outbound flight. When he/she shows up for the inbound/return flight, he/she realises the flight got cancelled. Usually airlines foresee this possibility in their general terms and conditions: the consumer needs to use the flight segments in the sequence order on the ticket.

Whereas in some cases consumers have bought a round trip only to benefit from a better pricing, in other cases they might have had very legitimate reasons not to take one of the flight segments. In these legitimate cases the general no-show policy may appear imbalanced and in favor of the airline. 

Thus, interpretations in the Member States start to differ, and some enforcement authorities have already taken differentiated approaches and actions.

With regard to no-show policies harmonised approach across the EU should be considered. This would prevent differences in the application and understanding of common consumer rights, based on their country of residence or competent court.

See also: Consumer groups take up fight against unfair ‘no-show’ clause in airline tickets

Protection against airlines insolvencies

In its communication COM(2013) 129 final, the European Commission committed to encourage cooperation between the competent authorities of the various Member States, monitor their licensing oversight under Regulation 1008/2008, and assess whether a legislative initiative would be needed to guarantee the protection of passengers in the case of airline insolvency.

For several years, the ECC-Net has alerted on the issues of airline insol - vencies, and recent experience shows that the protection of consumers in these cases is insufficient. As more insolvencies are predicted for 2019, this topic becomes an urgent issue.

Airline insolvencies per year

2019

• Flybmi - United Kingdom
• Germania - Germany

2018

• NIKI - Lithuania
• Small Planet Airlines - Denmark
• Primera Air - Denmark
• Cobalt Aero - Cyprus
• Nextjet - Sweden

2017

• Air Berlin - Germany
• Monarch Airlines - United Kingdom

2016

• Air Mediterrannee - France

2015

• Estonian Air - Estonia
• Cyprus Airways - Cyprus
• Intersky - Austria
• Eurolot - Poland

2014

• Belle Air Europe - Italy

2013

• OLT Express - Germany
• Helitt Lineas Aereas - Spain

2012

• Spanair - Spain
• MALEV Hungarian Airlines - Hungary
• Wind jet - Italy 
• Blue1 - Finland
• Cimber Sterling - Denmark
• Skyways - Sweden
• Islas Airways - Spain
• ItAli Airlines - Italy

Definition and harmonization of dimensions and weight of cabin luggage

The price of an airline ticket is becoming more and more intransparent. As every carrier is free to define what is included in its air tariff and not, comparison of prices often becomes impossible unless consumers go through every step of the booking procedure to see what additional charges are imposed along the way. One of the issues is the price of hand luggage, which is now excluded from some basic tariff tickets.

The issue is not unknown, and Italy‘s Competition Authority (AGCM), has already issued penalties to Ryanair (3 million euros) and Wizzair (1 million euros) for their cabin luggage policy. 

„The changes made to the rules for the transport of large hand luggage constitute an unfair commercial practice as they deceive the consumer regarding the actual price of the ticket, no longer including an essential element of the air transport contract in the basic tariff which is the big hand baggage,“ AGCM said in a statement.

However, this is only the interpretation of one country’s enforcement authority, there is no harmonization or common understanding across the EU.

• In order to allow consumers to proceed to a real comparison of prices with regard to air fares including cabin luggage and to ensure fair competition between operators, it should be defined and harmonised which services are included in the minimum fee.
•  Also it should always be clearly stated in the beginning of the booking process which services are included in the minimum fee.

Ideally, all passenger rights should be codified in one single place as to allow consumers to easily understand and research their rights.

Hotels and accommodation: no-show and cancellation policies

Similar to the no-show policies in the airline sector, usually in the hotel business, unless agreed upon differently in the contract or terms and conditions, the trader can demand the full price except the costs directly linked to the consumer’s presence (e.g. cleaning the room, food).

 Just the same, if the room was rented out under the same conditions (duration, price) to another guest, the hotel should not ask for payment from the cancelling consumer, as the hotel did not suffer any damages.

However, consumers will have to prove that the trader did not suffer any damages due to the cancellation.

Given the impossibility for consumers to prove the economic reality they actually caused the cancelled hotel, specific rules should be agreed upon within the EU in order to restore the balance between the parties.

A harmonised cancellation system with clear and reasonable pricing as it exists already in some Member States could be considered.

Vehicles

Car rental

Together with air passenger rights, car rental is the number one area of complaint for the ECC-Net. 

Since 2008, the ECC-Net has, on numerous occasions, notified the European Commission and the national enforcement authorities about the imbalance in the relationship between consumers and car rental companies.

Main issues with car rental

The main issues are as follows:

• Charges for alleged damages during the rental period. There are instances where vehicles are not subsequently repaired or, where consumers have ended up being charged for damages they did not cause, and without any proof of financial loss for the company.
• In addition to general issues with lack of price/product transparency which create confusion among consumers and hinder their ability to compare products, the manipulation of vulnerable consumers is unacceptably frequent, particularly with certain selling techniques (e.g. additional charges at pick-up point for so-called insurance).
• Excessive administrative fees for handling local traffic fines and infringements.

It should be noted that the industry has improved in recent years, thanks to its active engagement with the European Commission and national enforcement authorities (CPC-Network), as well as the promotion of codes of practice, alternative dispute resolution and other undertakings. 

However, based on ECC-Net’s experience, the industry’s existing shortcomings cause massive harm to consumers. Sector-specific legislation for car rental services could go a long way towards defining the obligations of the parties, including brokers, and securing the market.

Suggested steps for a secure and transparent car rental market

Several steps towards creating a more secure and transparent car rental market could be considered: 

• Final price quoted by booking intermediary sites should include all compulsory/mandatory charges, as well as required options for the consumer. 
• The company must prove their actual and true financial loss in relation to damages (and that the consumer is liable for the damage) prior to charging the consumer’s bank account.
• Additional payments should never be taken without prior notification and justification. The consumer should be sent evidence to justify any and all charges and should be able to dispute the charge before it is made.
• Documents such as estimates are not sufficient evidence on which to base a financial claim. The trader should be obligated to present invoices proving the actual and total costs of the repairs before charging the consumer.
• All extra charges, such as insurances, must be clearly stated and agreed upon, in a language that the consumer understands. The consumer should not be made to “uncheck” additional products that they do not want, but should rather personally “check” the ones that they do want.
• Enforcement activities should be continued in order to monitor improvements in the sector.

Clocking and mileage fraud

To significantly increase the vehicle’s value, certain used car vendors will not hesitate to decrease the mileage shown on the odometer with the help of tools easily purchased on the internet.

The European Parliament’s study estimates the share of tampered vehicles to be between 5 % and 12 % in national sales and between 30 % and 50 % in cross-border sales, accumulating to a total economic damage between EUR 5,6 and 9,6 billion in the whole Union

A report, published in 2016, by the ECC-Net revealed that while the manipulation of mileage meters is illegal in 26 European countries, the penalties vary considerably from one state to another. In addition, only ten countries have proposed a solution to verify a vehicle’s mileage before its purchase.

Out of these, eight countries propose that the buyer consults a national mileage registry of registered vehicles. Belgium and the Netherlands are the only two countries to suggest that a certificate be given to the buyer at the time of sale, specifying the vehicle’s mileage (Read the ECC-Net report cross-border car-purchases : what to look for when you are bargain hunting).

The implementation of a car pass certificate would have the immediate effect of increasing consumer confidence in the automobile market. The “Car-Pass” would also have the effect of decreasing odometer manipulation on used cars, and will therefore increase consumer security and combat fraud. Read more in the ECC-Net Oosition paper on Car-pass.

The European Commission and the European Parliament have started a reflection on this topic which should be continued and soon finalised.

Pollution stickers

Transport is a shared responsibility between Member States and the European Union. Several EU countries are currently responding to environmental problems by introducing stickers which indicate how polluting a car is according to a numbered scale. 

Sticker schemes ensure that the most polluting vehicles cannot be used on a daily basis and that, when pollution levels spike, only the least polluting cars are allowed on the road.

Although the Commission has launched an online platform for the provision of country specific information, consumers still need to conform to the practices of every single Member State of the EU. This is especially challenging in relation to cross-border car travels, as every Member State has their own country specific pollution sticker.

Replacing national car pollution stickers with one single European sticker or system would make life much easier for European drivers in general, and those driving in cross-border areas in particular.

Shopping

Guarantee issues

The following chapters touch upon issues with the legal guarantee, such as the duration, the limitation by transport damage and access to repairs and spare parts.

Duration of the legal guarantee of conformity 

The IMCO Committee of the European Parliament has approved new rules to strengthen consumer rights and facilitate cross-border trade in the EU. The new laws harmonise key contractual rights, such as the remedies available to consumers and how to use those remedies.

The two directives - on digital content and on the sales of goods - are part of the Digital Single Market strategy, which aims to ensure better access for consumers and businesses to online goods and services across Europe.

Both directives will influence guarantee rules throughout the EU, especially concerning the duration of the legal guarantee and the reversal of the burden of proof. While the directive on sales of goods provides for a minimum duration of two years for the legal guarantee period, Member States may go further in their national legislation.

As the directive on the sales of goods states «Ensuring longer durability of consumer goods is important for achieving more sustainable consumption patterns and a circular economy». Discussions on longer reversal of burden of proof and longer duration and longer legal guarantee of consumer goods are still needed and welcomed. The ECC-Net is in a position to provide expert advice on this issue.

Legal guarantee protection limited by transport damage

The ECC-Net regularly sees cases where recourse under non-conformity rules is limited in the event of damage during transport.

In France, the trader is responsible for executing the contract, including the operations performed by all intermediaries. Transport is thus the trader’s responsibility. However, a specific rule exists with regard to damage during transport: the seller has to inform the transport company of any damage within 3 days. As the consumer is in a position to identify such damage upon delivery he/she has the same obligation. It is therefore very common to state that the consumer has to check the item upon delivery and inform the transport company right away and at the latest within 3 days of any transport damage in the general terms and conditions of distance selling contracts. It is also recommended that the consumer informs the trader of any damage in writing. If the consumer is not able to check the item upon receipt, the deadline is extended to 10 days. If the consumer does not fulfil this obligation, the trader will lose his/her action against the transport company. A consequence of this, is that the trader will usually not be inclined to accept any complaint from a consumer regarding transport damage after this deadline, even though the legal guarantee of conformity remains applicable.

In Italy, the consumer should report the damage within 8 days of delivery if it is not immediately visible.

In Romania the application of the legal guarantee for damages due to transport is excluded if the consumer accepts the item on delivery, without making any remarks (this exclusion is applicable only for visible defects).

Even in Member States where no such rules exist, it can be difficult for consumers to make a claim under the legal guarantee if transport damage occur.

When a trader uses a transport company for the delivery of an order, the trader should be liable for the good execution of the transport. Deadlines for reporting damages can be put on the consumer’s shoulder but once the declaration has been done, the consumer should be entitled to a repair or exchange under legal guarantee of conformity rules. The trader, on the other hand, should be able to seek recourse against the transport company

Spare parts for repair of consumer goods

Today, many traders choose to simply replace damaged good, rather than offering sufficient information about the possibility of repairs. As a result, several countries have stated the trader’s obligations with regard to providing the consumer with information about the possibility of repairing the damaged good, and the availability or non-availability of spare parts.

Several attempts to harmonise such obligations across the EU have been made through various channels such as eco-design and sales of goods, but there is still no EU-wide obligation to provide spare parts to enable the repair of consumer goods.

More information is available in the ECC-Net report on legal guarantee and commercial warranties.

As Member States try to push for more sustainable consumption models including circular economy, access to repairs and the provision of spare parts should be mandatory throughout the EU.

Geo-blocking

Regulation (EU) 2018/302 addresses unjustified discrimination in online sales where the discrimination is based on the consumer’s nationality, place of residence or place of establishment, and location of the payment service provider.

The ban on geo-blocking is an important element of the digital single market strategy. Several ECC offices are contact points for consumers under the geo-blocking regulation.

While it is evident that not all traders have transposed the geo-blocking regulation in their commercial practices yet, the ECC-Net is already alarmed by reports from consumers stating that traders who previously shipped across borders suddenly do not accept orders from other or specific Member States

• A follow-up of the geo-blocking regulation is necessary in order to see if it really serves its purpose. 
• National enforcement authorities should prioritize looking into the commercial practices of their traders.

Counterfeiting

In 2017, the ECC-Net published a report about the impact of counterfeiting on online consumer rights in Europe.

The report concluded that it can have a huge impact on the buyer, as counterfeit items crossing borders in EU territory, whether consciously purchased or not, online or offline, exposes the holder to sanctions (in accordance with the rules of the country in which the offence is committed). In some countries consumers may be fined, in others they can even be sentenced to prison.

However, counterfeiting also impacts business, governments and individuals, and touches upon safety, intellectual property rights, criminal and civil law, and administrative provisions.

Various stakeholders are currently working on this issue.

• Assembling a multi-stakeholder initiative or/and a multi-level committee could secure a coordinated and efficient approach against counterfeiting.
• In addition, coordinated awareness raising campaigns and events should be organised to inform citizens about the risks and consequences of buying counterfeits.

Fake webshops

Enforcement authorities and ECCs in many Member States are issuing warnings and taking actions against fake online shops.

However, they often reappear under a different name, with a different URL, and with a different country of establishment.

Thus, greater responsibility and transparency may be required to secure the online market and protect fair competition:

• Webshop owners should be registered with the trade register and taxation administration. The trade register should enquire the valid identity of the registrar, the history of the webshop owner, the number of shops registered and their financial situation
• The same obligation may be put on the domain name registry.
• In order for both to work and to avoid forum shopping, registers should be interconnected throughout the EU.
• Search engines should indicate which webshops are (or which are not) in compliance with basic consumer rights and e-commerce legislation.

Marketplaces and purchases in 3rd countries

More and more e-commerce companies are hosting independent traders established in different countries on their websites.

If these «marketplaces» are booming, misunderstandings and complaints against them go hand in hand as consumers cannot enjoy the same protection and consumer rights as they have in the EU when it comes to exercising them against a trader in a third country.

The proposed new EU rules will require online marketplaces to clearly inform consumers about the identity of the party with whom they are concluding a contract (if it is a professional trader or an individual). The responsibilities of both trader and platform should be made very clear, as well as whom to contact in case of a complaint, as the “traditional” consumer-trader relation is now a three-party-relation.

However, greater due diligence should be required from online marketplaces and platforms when it comes to displaying traders from a third country.

It should be transparent in the search results where the trader is located, and what this means for your consumer rights. It must also be emphasised that even though a trader might be located outside the EU, general terms and conditions, as well as contact means, should still be mandatory.

In addition, the full and detailed price must be clearly indicated, including extra charges due to customs and duties.

Ticket reselling

With every major sports event or concert, the ECC-Net receives numerous complaints from victims of fraudulent ticket reselling. Some consumers never receive their tickets, others are refused access to the event. Sometimes the event does not even exist.

Major companies, well known to enforcement authorities, still target EU consumers. Some companies, previously established within the EU, have just changed their establishment to third countries.

Given the scale of ticket reselling and the harm caused to consumers, it is imperative to provide better consumer protection, particularly in relation to companies located outside the EU.

• Consumers call for event organisers to bear a responsibility for who they choose as their intermediaries for booking. And vice-versa, booking intermediaries should be responsible for verifying that the organisers they sell tickets from are indeed serious businesses and financially viable.
• For transparency purposes, ticket sellers should clearly indicate the name of the organiser and all details linked to the ticket (price, seat number or type, shipping details etc.) during the booking process.
• Consumers should be informed during the purchase if they are allowed to resell a ticket, as this is regulated in several EU countries.
• It should be clearly indicated if a seller is selling tickets without authorisation, and the consumer must be informed that access to the event is not guaranteed.
• In case of a complaint or cancellation of the event, ticket sellers should be responsible for the follow-up of complaints they receive from customers. A simple redirection to the organiser should not be enough.

Gift vouchers

Gift vouchers come in a variety of formats (e.g. physical cards, electronic codes) and can be used to acquire goods, services or digital content covered by the voucher. Gift vouchers can be a convenient present for some, but there are also risks associated with them with regard to expiry dates, redeemability restrictions, and even maintenance fees. Certain gift vouchers are for future agreements issued and accepted by one retailer only, whilst other schemes allow for multiple retailers, even at cross-border level. Since gift vouchers are rarely purchased by the actual holder, the latter may have limited information as to the applicable terms and conditions and, equally, it might be difficult to secure redress in case of difficulty.

Despite the popularity of gift vouchers, there is no uniform approach at EU level. Open loop gift vouchers are regulated under the eMoney Directive (2009/110), but its scope is limited.

At national level, regulation is insufficient and far from harmonised, and recently proposed Directives, such as a New Deal for Consumers, do not fill the current regulatory gaps and fragmentation.

Thus, the current landscape is difficult to navigate for both consumers and traders, particularly in a cross-border context.

For instance, consumers from Member States allowing for longer expiry dates may find it difficult if presented with vouchers issued by traders based in other EU/EEA countries. Equally, traders offering such vouchers may be required to comply with laws they are unfamiliar with.

Concerns have also been raised in certain situations of restructuring, new management, and/or acquisition, where the business continued to honour gift vouchers in a given Member State but not in others.

In Ireland, there is currently no minimum expiry date on gift vouchers. As a result, some retailers issue gift vouchers which are subject to short expiry dates (e.g. six months). New legislation has now been proposed to tackle this, and parliamentary debates are underway, with a proposed minimum expiry date of five years.

In Austria, there is no legislation dealing with the expiry date of gift vouchers. However, the Austrian Civil Code (ABGB) provides for a general limitation period of 30 years that may be relied on, unless shorter limitation period is provided (e.g. three years). Actions are not time-barred ex officio, as this but must be pleaded and cannot be waived in advance.

In 2019, the Higher Regional Court Linz ruled in the case OLG Linz 6.3.2019, 1 R 179/18a, that a gift-voucher from a supermarket cannot be limited to 3 years, because it is an unjustified disadvantage for consumers.

See: 3 Jahre Gültigkeitsdauer bei Interspar-Gutscheinen zu kurz | Verbraucherrecht. 

Transparency and fairness are clearly at stake, yet relevant EU Directives on contract terms (93/13), commercial practices (2005/29) and consumer rights (2011/83) do not sufficiently address all these concerns.

In the future regarding gift vouchers the following questions should be discussed at EU level:

• Adoption of a uniform approach to gift vouchers’ expiry date, e.g. minimum period of validity.
• Improvement of transparency and limitation of the trader’s ability to impose redeemability restrictions.
• Ban on certain administrative charges, such as maintenance fees.

Payments

Direct debit in another Member State

Paying invoices via direct debit from a bank account in another Memberr State of the euro zone is often impossible. Despite Directive 2014/92/EU, which allows consumers to open an account in the Member State of their choice, and the rules of the EU regulation 260/2012 governing the Single Euro Payments Area (SEPA), companies still refuse direct debits from banks outside their country of establishment.

As a result, consumers from Austria, Belgium, Germany, Ireland, Lithuania, Luxemburg, Sweden and Spain find it difficult to pay their cross-border taxes, subscriptions or invoices.

There are various reasons provided for why the processing of a cross-border SEPA direct debit is not possible. Some of which are that information processing systems are not able to process foreign bank details, that forms are prefilled with national IBAN identification, and that general terms and conditions requesting a bank account in the trader’s country.

The SEPA regulation is not a new piece of legislation. At this point in time:

• Consumers should be able to exercise their rights to a SEPA direct debit to be processed on a bank account in another Member State of the euro zone!
• Consumers should not be forced to open or keep a bank account in another Member State.
• Consumers should be protected against fraudulent direct debits.With the SEPA regulation, traders can place a direct debit on the account of the consumer just by knowing the IBAN. No European solution was put into place against fraudulent use of direct debits. For additional information (in French) on this topic, follow this link: http://questions.assemblee-nationale.fr/q15/15-5827QE.htm  (in French).

Chargeback: a consumer right without borders

In an increasingly interconnected world, where trade is no longer hindered by borders, secure payments are vital to consumers’ trust and access to the markets. As most consumer transactions today are made using a debit or credit card, access to chargeback schemes for online purchases are necessary for a secure and integrated cross-border market.

Chargeback should be available when:

• The transaction is not authorised by the consumer/cardholder. 
• The trader does not respect the consumer’s rights.
• The trader has gone bankrupt.

Although the Payment services Directive 2015/2366 discusses chargeback schemes for both debit and credit cards, it is only mentioned as a recommendation and it is not obligatory. It is therefore up to the Member States themselves whether to write it into law. Until such time, the providers of payment solutions are free to decide if such a possibility should be made available to the consumers or not. As a result, the rights and security of consumers differ greatly between the Member States.

Read more in the ECC-Net report on chargeback.

Access to uniform chargeback procedures for purchases made using both debit and credit cards should be harmonised across the EU.

ATM withdrawals

Banks in some EU Member States still impose additional ATM wit - hdrawal charges on consumers even though EU legislation clearly states that banks within the EU cannot charge you more than it would cost for an equivalent national transaction.

Article 3 of the Regulation No 924/2009 provides that «charges levied by a payment service provider on a payment service user in respect of crossborder payments of up to EUR 50 000 shall be the same as the charges levied by that payment service provider on payment service users for corresponding national payments of the same value and in the same currency”.

A note on the application of Regulation No 924/2009, published by the DG Inter - nal Market and Services in January 2011, states that charges for cross-border cash withdrawal by a cardholder are typically settled and cleared indirectly, between both banks (bank of the cardholder, and bank owning the ATM).

However, these charges are in fact often levied directly on the cardholder by the bank owner of the ATM.

Such practices of ATM providers force consumers to withdraw large amounts of money at home, and carry the cash abroad. This leaves vulnerable consu - mers feeling unsafe, on holidays in the EU.

When discussing amendments to Regulation 924/2009, the issue of banks continuing to charge ATM withdrawal fees should be considered

Consumers as targets of unsolicited sales practices, online and on the phone

Phoning

Telemarketers in various Member States continue to use aggressive selling tactics in order to get consumers to accept contracts.

The ECC-Net regularly receives complaints from consumers who have been misled or bullied into accepting a “free” trial or additional information about products/services they do not want or need. The consumer is subsequently unable to cancel the contract.

As a written agreement is not mandatory in all Member States, the traders in these states can easily conclude subscription contracts without the consumers’ written consent.

• The introduction of an EU wide ban on cold calling, especially to prevent calling from abroad, is necessary.
• Contracts without the consumer’s signature should never be binding. The consumers should always receive the agreement in writing.
• Cooling-off and reflection periods should continue to apply, and it should start on the day that the written contract, with the consumer’s signature, is concluded.

Online subscription traps

Consumers are constantly met by various online traps and too-good-to-betrue offers when shopping online. Whilst subscription traps have existed for a long time, they have become far more common over the course of the last five years. This is an international problem that has drawn the attention of consumer authorities and organisations, both at national and at EU-level.

In 2013, the ECC-Net placed subscription traps and offers of free trials at the top of a list of growing e-commerce problems, and identified subscription traps as a lasting problem area that is likely to increase in the future.

In 2017, the ECC-Net joint project “Subscription Traps in Europe. EU Study into Public Experiences of Subscription Traps in Six Countries” found that targeted marketing, pop-up ads and social media have contributed to a huge increase in subscription traps.

“Over the last three years, 3.5 million consumers in Sweden, Norway, Finland, Netherlands, Belgium and Austria are estimated to have accepted an offer online or in social media that led to a subscription trap, making subscription traps a multi-million industry. That shows a survey from Sifo Kantar, commissioned by ECC Sweden and the Swedish Consumer Agency.”

A recent survey from 2018, conducted by the Finnish Competition and Consumer Authority, found that each year,round 200,000 consumer in Finland alone become the victims of subscription traps and lose a total of around 5–10 million euros. In addition to damages to consumers, subscription traps distort competition and erode consumer confidence in online commerce. Read more in the FCCA report - consumers lose millions of euros each year due to subscription traps.

A 2018 publication from the Danish Competition and Consumer Authority focus on the rising number of companies who consciously, and in violation of the law, mislead consumers online. The findings is based on experiences and cases from the ECC-Net. Read more: Misleading consumers online is a cross-border issue.

• In order to better protect its citizens, the EU could regulate how consumers validate their payments. PSD2 andRTS aim to introduce new and stronger security measures that might be helpful in the prevention of internet traps, such as the use of strong customer authentication and dynamic linking. For further information, read the report of the ECC CPC workshop 2017 on online traps.
• Since platforms and social media enable the spread and marketing of subscription traps, their responsibilities towards the consumers should be further problematised and discussed.
• Stronger and more coordinated cross-border cooperation between enforcement authorities and relevant stakeholders is needed in order to tackle the issue.
• Further strengthening of monitoring and evidence gathering tools on an EU level is needed, especially in light of the new Regulation (EU) 2017/2394 on cooperation between national authorities responsible for the enforcement of consumer protection laws
• The issue must be tackled on a multi-stakeholder level to ensure the commitment and expertise of all stakeholders.

Contracts and general terms and conditions

Contract terms

Studies show that consumers do not understand the contracts they are signing. This is a growing challenge with regard to e-commerce, and new business models. Yet, very few regulations impose the use of clear and comprehensible language.

The Report on Fitness check of consumer and marketing law (2017) concludes that terms and conditions should be better presented.

EU legislation should demand plain and simple language when it comes to consumer contracts. Technical legal terms should be avoided, and contracts should be kept to readable length while displaying all essential elements. A summary with the main elements should be provided in a standardised form.

Tacit renewal of contracts

Consumers subscribing to contracts and memberships online, often do not understand the terms and conditions of the contract as civil laws differ from country to country. As a result, many consumers are surprised when their contracts are renewed without notice.

In some countries automatic renewal of contracts is strictly regulated, which allows for better protection of consumers, and thus should be considered throughout the EU.

• Consumers should always be notified before a contract is concluded that he/she is entering into a renewable contract. It should not be enough to simply drown this information in the general terms and conditions. The consumer should receive specific and personalised information about the duration of the contract, the cancellation policy, and the contact details of the trader.
• For contracts with a duration of more than three months, in a fair deadline prior to the contract being renewed, the consumer should receive a specific and personalised reminder that the renewal is coming up, its exact date, information about the renewal period and how he/she can cancel the subscription. This information should not be drowned in advertising, newsletters or other.
• If the consumer has not been duly informed, he/she should be able to cancel the renewed contract at any time.
• The consumer would have to pay the cost of the subscription until he/she submits a request to terminate the contract.

Cooling-off

According to the Study on the application of the Consumer Rights Directive (2017), the right of withdrawal is the best-known consumer right and it is considered to be very important by consumers.

However, as recent discussions regarding a New Deal for Consumers have shown, businesses are currently lobbying hard against this right.

In a recent website sweep, the European Commission and consumer protection authorities found irregularities in almost 30% of the websites in relation to: “… “…, how information was presented about consumers’ right to withdrawal.

According to EU law, consumers must be clearly informed about their right to withdrawal when they buy online”

Read more on http://europa.eu/rapid/press-release_IP-19-1333_en.htm

To ensure full compliance, the right of withdrawal should be further strengthened and enforced.

Some countries have extended the right of withdrawal to include purchases on site. In other countries, consumer organisations are emphasising the need for a withdrawal right when purchasing in a physical shop for certain products and services when transparency and access to full information are not guaranteed.

It should also be noted that strengthened withdrawal rights could more effectively secure vulnerable consumers with regard to specific and expensive purchases.

Handling of consumer complaints

Obligation of traders to respond/Complaint books

ECCs often receive cases where it is almost impossible to contact a manager on site or an online trader, as no direct contact means are provided on their website... To reach them consumers have to fill out an online form.

In addition, some traders do not respond unless the case reaches another more formal and official state.

Some countries have already put responses in place, guaranteeing that the consumer’s complaint is handled. However, we should aim at harmonising legislation across the EU, to ensure that all European consumers have the right to be heard.

Examples of best practices could facilitate a harmonized procedure of providing information to traders on the quality of their goods and services as well as to the enforcers about potential infringements.

Shaping the landscape of Alternative Dispute Resolution (ADR) in the European Union

Quick, cheap, neutral and flexible alternative dispute resolution mechanisms are particularly important in relation to cross-border commerce, where consumers face higher barriers when it comes to enforcing their rights. Facilitating cross-border ADR is one of the main objectives of the ADR Directive (2016). Today, 430 ADR bodies are available in 30 EEA countries offering ADR proce - dures for no matter what disputes between consumers and traders in the national and the cross-border context.

Unfortunately, the number of cross-border complaints filed before ADR bodies is very low, and in many countries it is close to zero. From a consu - mer perspective, barriers to cross-border ADR include: lack of awareness, problems with identifying the right body and 25 different languages.

In addition, many traders are still reluctant to participate in ADR, particularly, if the procedure is voluntary and incurs costs. In some countries, ADRs are not available in every sector or they do not cover the whole sector.

In order to enhance the development of ADR in the EU, several measures should be considered:

• Awareness raising campaigns about the advantages of ADR addressing consumers and traders.
• Development of good practice examples for cost-effective models that do not deter traders from ADR.
• Providing and financing measures to facilitate and simplify cross-border ADR, like the FIN-NET, the ODR platform and the ECC-Net.
• Promoting a holistic approach to cross-border redress mechanisms including consumer representation (ECC-Net), neutral alternative dispute resolution bodies (ADR) and simple legal procedures (small-claims).
• Evaluation and further follow up at EU-level of the effectiveness of the current ADR/ODR legislation given the fact that ADR coverage and trader involvement still seem not to meet set targets

Improving the effectiveness and efficiency of the Online Dispute Resolution Platform (ODR Platform)

To support consumers in solving cross-border disputes with online traders, the EU introduced the ODR platform in 2016. The platform seeks to simplify the procedures and the access to the 430 ADR bodies. It is highly visible, as online-traders are obligated to put a link to the platform on their websites. In addition, it provides for a single entry point, a uniform complaint form, an automatic translation tool and general help by a European-wide network of ODR contact points.

The ODR platform is already useful for consumers, since it supports them in finding bilateral solutions with online-traders. Being informed of the complaint, traders contact consumers to solve the dispute outside the platform

However, the platform is subject to effectivity and efficiency problems when it comes to transferring complaints via the platform to an ADR body. Only 2 % of the 100.000 complaints filed so far have been transferred to an ADR body. Only in 1 % of the complaints an ADR procedure took place.

In order to improve ODR in the EU and the ODR platform : 

• The workflow of the platform needs to be simplified. The so-called ‘Ping-Pong’ must be eliminated. The integration of traders in the process of contacting an ADR body overcomplicates the access. It is on traders to register on the platform and propose an ADR body after consumers have filed a complaint.
• The ODR platform needs to be made coherent with the specificities of the diverse European ADR landscape. For example, most ADR bodies ask consumers to have contacted traders first in an attempt to solve the problem bilaterally, whereas complaints via the ODR platform can be filed without such an attempt. 
• Reducing the administrative burden for traders. Traders are obliged to register on the platform, collect information and propose an ADR body, even if it is the consumers’ initiative to carry out the procedure. This is deterrent. Only 19 % of traders register on the platform (2017)

European Small Claims

The European Small Claims Procedure is established by Regulation (EC) 861/2007 and is intended to improve access to justice by simplifying crossborder small claims litigation in civil and commercial matters and reducing costs. Whereas the procedure is indeed simplified, an ECC-Net European Small Claims Procedure Report, dated September 2012 identifies several issues with the European Small Claims Procedure:

1. Lack of awareness among consumers, courts and legal practitioners 
2. Lack of assistance bodies for consumers (only in a few countries including Luxembourg can you file an ESCP free of charge) 
3. The costs of the procedure 
4. Procedural issues 
5. The enforcement of the judgments 
6. Lack of statistics

A recent project, REDRESS17 (French) comes to similar conclusions.

For the ESCP to reach its full potential, it must be further strengthened and promoted.The following topics should receive a special focus:

• Increasing the awareness of the Procedure among the judges in the Member States. 
• Centralisation of ESCP either within Member States (e.g. as for EPO in Ger - many where procedure is centralized at Mahngericht Wedding, or district court Essen which handles all ESCP in North Rhine-Westphalia) or via the introduction of a single platform for the management of these procedures at EU level. 
• Annual reporting by Member States of precise statistical data on the actual number of ESCP cases in order to monitor the use of the procedure, and to create a database of the judgements. 
• Transparency of costs for consumers. 
• Clarification of the rules related to translation to reduce the procedure costs. 
• Providing information, assistance and legal support for consumers in all Member States.
• Improvement of procedures e.g. by establishing a single multilingual enforcement order certificate for the cross-border issues, instead of the 4 certificates that currently exist (ESCP, EPO, European Enforcement Order + certificate Brussels Ia regulation 1215/2012.

The Commission has recently launched a SCAN (Small Claims Analysis Network) Project which aims to analyze and enhance the knowledge on the EU Regulation 2015/2421 on the ESCP for consumers across the EU. However, the above mentioned points should still be considered.

ECCs as external alert mechanism for CPC-Network

Regulation 2017/2394 on cooperation between national authorities responsible for the enforcement of consumer protection laws (CPCNetwork) foresees in recital 36 and article 27 the designation of external alert mechanisms, and expressly recognizes the expertise of the European Consumer Centres Network (ECC-Net).

ECCs are experts on alerting enforcement authorities on cross-border consumer issues.

One of the main tasks of the ECCs is to observe and communicate the dysfunctions of the single market to the national authorities responsible for enforcing consumer protection laws. ECCs alert the authorities on unlawful commercial practices and traders which have repeatedly breached European consumer laws.

In 2016, the ECC-Net and the CPC-Network created the ECC-CPC monitor. This tool, which is approved by the European Commission, enables us to identify repeated breaches by the same trader, and to quickly alert the CPC-Net.

In order to facilitate the exchange of information within the CPC-Network, all ECC-Net reports are transcribed in a standardised form and made available through a common database. 82 traders from 8 different sectors (air, car rental, design furniture, digital services, subscriptions traps, ticket resale, virtual currency and others) were listed in the ECC-CPC monitor in 2018.

This initiative is in line with the objectives of the EU regulation 2017/2394, and the aim is for the monitor to be operational as an external alert mechanism from the beginning of 2020.

The information gathered in this database already exceeds the information the external alert mechanisms are supposed to transmit according to article 26 (3) of the Regulation 2017/2394, and the additional information gathered could prove essential in the future.

Regulation (EU) 2018/302

Regulation (EU) 2018/302 addresses unjustified online sales discrimination based on customers' nationality, place of residence, or place of establishment within the Internal Market.

The Regulation came into force on 22 March 2018 and has been applicable in all EU Member States since 3 December 2018.

According to Article 8 of the Regulation, each Member State is required to designate one or more bodies responsible for providing practical assistance to consumers in disputes with traders arising from the application of this Regulation.

Several Member States have appointed the European Consumer Centres (ECCs) as assistance bodies under the Regulation. Many of these centres were already designated as contact points under the Services Directive. These centres, which together form a well-functioning EU-wide network, have established procedures and the necessary expertise to efficiently handle cross-border consumer claims.

The assistance provided by ECCs may include:

• Explaining consumer rights
  Informing consumers about their rights under the Regulation.
• Settling complaints
  Assisting consumers in resolving complaints with traders based in other Member States.
• Providing guidance
  Advising consumers on whom to contact or what steps to take if the ECC itself cannot resolve the issue.

In cases of unjustified geo-blocking or other forms of discrimination based on nationality or place of residence, the cross-border element is often a crucial factor. European Consumer Centres are experts in managing such cross-border complaints. Based on the complaints received, the ECC-Net can report on practical consumer issues and highlight the difficulties encountered by consumers.

Aim of the regulation

• Increasing the potential of the internal market
• Broadening consumer choice throughout the internal market
• Clarifying situations in which differential treatment is unjustified
• Enabling the application and effective implementation of non-discrimination rules throughout the internal market

Discriminations prohibited by the Geo-Blocking Regulation

The Geo-Blocking Regulation prohibits both direct and indirect discrimination based on the following factors:

• Nationality
• Place of residence
• Place of establishment of the customers
• Physical location of the customers, identified for example by their IP address
• Delivery address
• Language chosen
• Customer’s bank domiciliation or the country of issue of the means of payment

The entry into force of the Geo-Blocking Regulation has raised significant expectations among consumers, who hoped for better access to goods and services at more competitive prices throughout the EU. However, many consumers mistakenly believe that companies have an EU-wide obligation to deliver packages across borders. When delivery is refused, it often feels as though the Internal Market provides more freedom to companies than to consumers. While businesses can freely sell their services and establish companies or subsidiaries in other Member States, consumers remain reliant on traders agreeing to deliver to their location.

Conclusion

The scope of the Geo-Blocking Regulation remains unclear to many consumers. Complaints frequently arise about services not covered by the regulation, such as financial services, insurance, and copyright-protected works. The regulation’s lack of an obligation to deliver to a consumer’s country of residence often makes accessing all offers impractical or impossible.

Consumers continue to face issues such as redirection to national websites and persistent price differences, especially with major retailers who deliver across the EU but restrict purchases based on the consumer’s location. While consumers are often willing to pay higher delivery charges, they expect to buy goods from their preferred website. They feel that the ban on automatic rerouting has simply been replaced by the need to have a delivery address in the country of the national website.

Sales practices also reflect this issue. Traders can limit delivery to specific territories or apply sales to only certain products in certain areas, excluding consumers who wish to participate in sales from other regions. Marketplaces and platforms often refuse cross-border delivery due to selective distribution imposed by manufacturers, despite the European Commission’s penalties for anti-competitive practices that block cross-border sales. The concept of “shopping like a local” is mainly beneficial in border regions with short distances. For longer distances, consumers might resort to having purchases delivered to a cross-border transport company, a practice that was available before the regulation but is not always accommodated by traders.

Additionally, geo-blocking issues are linked to SEPA-related problems, where consumers are denied access to products or services due to the location of their bank account. Since 5 August 2014, EU consumers have had the right to open an account with any EU bank (Directive 2014/92/EU). Regulation (EU) No. 260/2012 also mandates that traders cannot refuse SEPA direct debit or euro transfers based on the consumer’s bank account location. Despite this, ECCs report frequent complaints from consumers who are denied access due to their bank account being in another EU Member State. The CJEU has ruled that SEPA direct debit payments cannot be conditional on residence within the national territory.

Similarly, some online traders only accept payment methods linked to specific countries, such as the Dutch iDeal or Belgian Payconiq, disadvantaging customers without accounts in those countries. National identification schemes, such as Sweden’s "person number," also contribute to discriminatory practices, with traders refusing services to consumers lacking these specific identifiers.

It is clear that not all traders have fully adapted to the Geo-Blocking Regulation. The ECC-Net is concerned by reports from consumers indicating that traders who previously accepted cross-border orders are now rejecting them based on specific Member States or other criteria.

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