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