ERU, Alm.del - 2017-18 - Bilag 11: Notat om en målrettet revision af EU's direktiver om forbrugerret, fra erhvervsministeren

Erhvervs-, Vækst- og Eksportudvalget 2017-18
ERU Alm.del Bilag 11
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Directorate-General for Justice and Consumers

European Commission

1049 Bruxelles

Belgium

MINISTER FOR INDUSTRY,

BUSINESS AND FINANCIAL

AFFAIRS

6 October 2017

MINISTRY OF INDUSTRY,

The Danish Government response to the public consultation on the

targeted revision of EU Consumer law directives

The Danish Government is grateful for the opportunity to reply to the

consultation regarding the targeted revision of the EU Consumer law di-

rectives. The Danish Government finds the

Commission’s fitness check

of the consumer and marketing legislation highly relevant and important

and supports the Commission’s efforts

in this area.

The Danish Government would like to supplement the issued question-

naire with this substantive response.

Behavioural insights and targeted information disclosure

In May 2017 the Commission completed the fitness check of the consum-

er and marketing legislation and the evaluation of the Consumer Rights

Directive. In general, the Commission concluded that the general con-

sumer law remains fit for purpose, and when applied effectively, the ex-

isting rules tackle the problems that European consumers are facing to-

day. However, findings also point to the need to improve awareness, en-

forcement and the rules of redress opportunities to make the best of the

existing legislation.

Based on these evaluations the Commission is currently assessing the

need for possible changes in the legislation, and the Commission is un-

dertaking the current targeted revision of EU Consumer law directives

based on the conclusion of the fitness check.

However, the Danish Government does not fully agree with the conclu-

sion on the fitness check nor the underlying premise for the issued ques-

tionnaire.

The Fitness Check was an important exercise, because active consumers

are an important part of the Single Market, as active consumers make

demands on businesses which give them incentives to provide better ser-

vice. This can lead to an improvement in competition and create well-

functioning markets.

BUSINESS AND FINANCIAL

AFFAIRS

Slotsholmsgade 10-12

DK-1216 Copenhagen K

Tlf.

Fax

+45 33 92 33 50

+45 33 12 37 78

CVR-nr. 10 09 24 85

EAN nr. 5798000026001

[email protected]

www.em.dk

ERU, Alm.del - 2017-18 - Bilag 11: Notat om en målrettet revision af EU's direktiver om forbrugerret, fra erhvervsministeren

It is therefore the hope of the Danish Government that the follow-up on

the Fitness Check in the end will make it easier for consumers and busi-

nesses to navigate within the area of the directives that are subject to the

Fitness Check.

‘Behavioural

insights’ refers to the range of behavioural science research

into how biases influence consumer decision making. The term has

gained prominence as a result of the wealth of research calling into ques-

tion the traditional assumption that consumers and citizens act like ra-

tional agents in the marketplace. Behavioural insights are an obvious

means to ensuring that regulation aligns with actual consumer behaviour

to the benefit of both consumers and businesses.

The gap between the intended consumer protection of information disclo-

sure requirements and the observed consumer behaviour especially calls

for the consideration of insights from behavioural sciences.

The Danish Government would therefore like to emphasize the im-

portance of continuing the implementation of behavioural insights in the

development of EU consumer and marketing law, for instance by striving

to shift from full information disclosure to better targeted information

disclosure based on evidence, impact assessments and behavioural in-

sights.

The Danish Government is of the opinion that neither the Fitness Check

nor the consultation on the EU consumer legislation thoroughly take

these considerations into account.

The Danish Government has enclosed a non-paper regarding the imple-

mentation of behavioural insights in the development of EU consumer

and marketing law. The non-paper was also circulated by the Danish

Government at the Competitiveness Council meeting on May 29 2017.

Clearer consumer rules for the digital economy

One of the targeted areas covered by the consultation is clearer rules

for the digital economy.

The Danish Government is of the impression that consumers increas-

ingly rely on online platforms in their decision-making process. How-

ever, particularly when the online platform facilitates communication

and contractual transactions between other market players, the applica-

tion of EU consumer law is sometimes unclear. This is particularly the

case when considering whether platforms should be measured accord-

ing to the standards of the Unfair Commercial Practice Directive.

ERU, Alm.del - 2017-18 - Bilag 11: Notat om en målrettet revision af EU's direktiver om forbrugerret, fra erhvervsministeren

Even more pressing are the standard of correctness and validity of in-

formation provided to the consumer and under which circumstances

platform operators, particularly those who have a certain control over

the transactions, should be held liable for the (non-) performance un-

der supplier-consumer contracts. There seems to be a strong need to

update EU consumer law in this regard.

In general the Danish Government finds that there is a need for a Digi-

tal Single Market that is open to competition, innovation and new

business models.

The Digital Single Market should have efficient rules for all business-

es in the digital economy. Regulation should be future-proof and not

impose new unnecessary burdens on businesses or create barriers to

entry that stifle competition and innovation. We should focus on regu-

lating actions that are harmful to society, consumers or competition

irrespective of whether these actions are taken by online platforms or

other types of businesses.

Furthermore, high quality impact assessments should be made and

alternatives to regulation should be properly considered. For instance,

cooperation with consumer organizations to enhance consumer aware-

ness rather than imposing new regulatory requirements could be con-

sidered.

Free online services

Regarding free online services the Danish Government is not in a posi-

tion to comment on whether the Consumer Rights Directive should be

extended to contracts for online services for which the consumer pro-

vides data and does not pay with money.

It should, however, be noted that a general approach on the proposal

for a directive on certain aspects concerning contracts for the supply of

digital content was reached by the JHA Council on the meeting of 8-9

June 2017. According to the general approach, which Denmark sup-

ports, the directive should apply when the consumer pays, or under-

takes to pay a price or to provide personal data to the supplier.

Better enforcement and redress opportunities for consumers

The consumer's right to remedies/redress for harm caused by unfair

commercial practices are not always sufficiently guaranteed under

national law. Different and ineffective national rules on reme-

dies/redress may lead to costs for traders engaging in cross-border

trade and detriment for consumers resulting from continued existence

of many breaches on national and cross-border level.

ERU, Alm.del - 2017-18 - Bilag 11: Notat om en målrettet revision af EU's direktiver om forbrugerret, fra erhvervsministeren

The mystery shopping exercise on the Unfair Commercial Practices

Directive conducted in the context of the Fitness Check study on con-

sumer markets reveals to a large extent the difficulties that consumers

encounter, when it comes to seeking redress as a result of an unfair

practice. It is indicative that 62% of the mystery shoppers evaluated

the traders as unwilling to offer a remedy. The evidence

of traders’

reactions to complaints is compelling. 48% of traders totally ignored

the consumers reaching out to them for redress due to an unfair prac-

tice, while only 2% of the traders recognised the unfair practice from

their side. Eventually, 16% of the traders offered a remedy, as opposed

to 32% that did not offer any remedy whatsoever, while there were

instances where the trader ceased communication (Consumer Market

Study to support the Fitness Check of EU consumer and marketing

law, DS-02-17-419-EN-N, at 246-252).

The Danish Government supports alignment of sanctions and im-

provement of redress and therefore also supports the new CPC-

Regulation.

Penalties for breaches of consumer rules

Regarding penalties for the breaches of consumer rules it is not possi-

ble for the Danish Government on the present basis to determine

whether possible differences in the investigation and sentencing of

breaches of EU consumer protection rules result in consequences for

the enforcement of these rules.

However the Danish Government would like to draw the Commis-

sion’s attention

to the response given by the Danish Forbrugerom-

budsmand, who has independently answered the questionnaire.

Doorstep selling

The Danish Government is not in a position to comment on whether

the Member States should be allowed to introduce a general ban on

doorstep selling, or whether national restrictions on doorstep selling

makes cross-border trade difficult.

It should, however, be noted, that since 1978 the Danish Consumer

Contracts Act has imposed a general prohibition on doorstep selling in

business-to-consumer

commercial practices: Without the consumer’s

prior request, a trader is not allowed to approach the consumer at any

location to which there is no general public access, e.g. the

consumer’s

home or workplace, with the view to obtain an offer or acceptance of

an offer to conclude a contract.

Few exceptions are made to the general prohibition. Traders are al-

lowed to contact consumers by telephone with regard to the ordering

of books, subscriptions for newspapers and magazines, brokering of

ERU, Alm.del - 2017-18 - Bilag 11: Notat om en målrettet revision af EU's direktiver om forbrugerret, fra erhvervsministeren

insurance, and subscription for emergency services and medical

transport. The listed exceptions are justified by the interest in securing

a certain information level in society and because it is presumed that

the purchase of these products and services benefits society.

Simplification of the rules on the right to withdrawal

As addressed by the Commission in its evaluation of the Consumer

Rights Directive, the Danish Chamber of Commerce has stressed the

practical challenges related to the right to return used goods according

to article 14(2) in the Consumer Rights Directive. Among other things

the Danish Chamber of Commerce argues that it is difficult for the

traders to resell the returned used goods and that there is uncertainty

about the calculation of the diminished value of the goods. Based on a

survey conducted among their members, the Danish Chamber of

Commerce has additionally stated that the practical difficulties result

in a tendency for the trader to refund the full amount for the returned

used good to the consumer.

The Danish Government thanks the Commission for addressing the

issue and the fact that if consumers at a large scale exercise the right to

withdrawal after having used a good more than they would in a shop,

this may distort the balance between consumer protection and com-

petiveness of enterprises. In continuance hereof the Danish Chamber

of Commerce has agreed to provide further data that can illustrate the

extent of the burden on the traders.

With regard to the trader’s obligation to reimburse the consumer as

soon as the consumer has supplied evidence of having sent the goods

back, stakeholders, e.g. the Danish Chamber of Commerce, have ex-

pressed that this obligation entails challenges for the traders, as it does

not allow sufficient time for the trader to inspect the returned good

before reimbursing. More study should be conducted at the EU-level

in this area to shed light on the extent and nature of the effects of the

implementation of article 14 (2).