Pascal Pichonnaz (Chair; ELI President; Professor, University of Fribourg) opened the webinar by welcoming participants and introducing the speakers. He recalled that the European Commission, in its 2020 consumer policy strategy, the ‘New Consumer Agenda’, announced that it would analyse whether additional legislation or other action is needed in the medium-term to ensure equal fairness online and offline. For that reason, in spring 2022, the Commission launched a Fitness Check of EU consumer law on digital fairness in order to determine whether existing EU consumer law is adequate for ensuring a high level of consumer protection in the digital environment. In furtherance of the above strategy, the Commission launched a public consultation on 28 November 2022, to which the ELI contributed towards.
ELI’s Response to the European Commission's Public Consultation on Digital Fairness – Fitness Check on EU Consumer Law was briefly presented by its drafters: Marie Jull Sørensen (Professor, University of Aalborg), who focused on the notion of ‘consumer’ and information duties, Peter Rott (Professor, University of Oldenburg), who focused on dark patterns and the need to provide consumers with more than information, and Karin Sein (Professor, University of Tartu), who focused on free trials and the right to a human interlocutor.
The presentation of the ELI Response was followed by an intervention by Kasper Drazewski (Senior Legal Officer – Consumer Law, BEUC) on BEUC’s position in the field. Having showed some results of a survey run by BEUC on the topic, he emphasised action points that, in BEUC’s view, should be taken to address the problems of systemic and omnipresent digital asymmetry. In particular, he advocated the need for the following: an update to the fairness test of the Unfair Commercial Practices Directive, an update to the definition of transactional decision and a prohibition on the use of psychographic profiles or similar approaches to exercise emotional or psychological pressure on users and to personalise prices.
Maike Jansen (Public Affairs Advisor, Ecommerce Europe) followed with a presentation of Ecommerce Europe’s position. In their view, the EU already has a complete regulatory framework on consumer law and it still appears to be fit for purpose. They support the Commission’s objectives in ensuring safety and trust in the digital environment and believe work should be done mainly on enforcement, where there is still room for improvement, especially by enhancing the skills and knowledge of enforcement authorities and cooperation among them. Ecommerce Europe would also welcome guidelines on how to best inform consumers of their rights. In doing so, Jansen emphasised the need to strike the right balance between information overload and information duties.
Egelyn Braun (Legal Officer, Team Leader for the Fitness Check, Unit Consumer Law, DG Justice and Consumers) closed the round table with a brief regulatory update from the European Commission. She emphasised that the public consultation aims at looking at the state of play of law and the developments in the field since the last fitness check in 2017 and that at this moment in time it is too early to know whether a new piece of legislation will be needed or whether other actions suffic. She highlighted the fact that the Commission is also looking into burden reduction, cost savings and simplifications, while still remaining sensitive to any possible reduction of consumers’ protection.
The insightful interventions were followed by a lively Q&A session.
The recording of the webinar is available below.
