webinar - 27 november 2013 a new regime for e-commerce in europe … but still no...

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

[email protected]

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


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 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


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


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)


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


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


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)


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


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


Fitting rooms re-visited


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


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)


#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


#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.


#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


#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


#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.


#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


#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


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 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?

http://www.google.nl/url?sa=i&rct=j&q=&source=images&cd=&cad=rja&docid=Qpl1UCX6TAxfPM&tbnid=pbGaYjIY5O7oJM:&ved=0CAUQjRw&url=https://twitter.com/twitter&ei=h-2-Ud-eBITaOqKtgJgH&bvm=bv.47883778,d.ZWU&psig=AFQjCNHKg0FCxsEep29cKcOKNueob-kLsA&ust=1371553531509148

webinar - 27 november 2013 a new regime for e-commerce in europe … but still no...

Documents

new regime

europe slide

eu slide

new rules

notion of ecommerce

old regime

eu directive

qa slide