Consumer law: the customer is still king, also for ACM and the European Commission

Protecting consumers is a major priority of the Dutch Authority for Consumers and Markets (“ACM”). Therefore, as expected, ACM imposed fines on various companies for breaches of consumer rules last year. This trend is set to continue in 2017. This year, the European Commission will be performing a ‘Fitness Check’ on several consumer directives. On that basis, it will determine whether to introduce new legislation or to amend existing directives. 

ACM penalties

ACM has given priority to the “online consumer” in its agenda for 2016/2017. This has already led to multiple enforcement actions for misleading commercial practices and breaches of obligations to provide information. Last year, for instance, various travel service providers gave ACM the commitment they would state additional costs clearly and transparently on their websites. Furthermore, ACM fined five online fashion stores for providing insufficient information to consumers on their websites about the rules regarding order cancellations. ACM also monitored whether consumers were able to exercise their right of withdrawal. For example, ACM cautioned six providers of recipe boxes for not allowing consumers to exercise their right of withdrawal after taking out a subscription. Another notable procedure concerned an investigation into dating sites. In February and July last year ConsuWijzer, ACM’s consumer information portal, called on consumers to report dating sites that use fake profiles.

This year compliance with consumer rules will continue to be subjected to enhanced supervision by ACM. ACM will for this purpose continue its cooperation with the Dutch Authority for Financial Markets (“AFM”) with regard to unfair practices among debt collection agencies. In addition, ACM expects to complete its investigation into Volkswagen’s use of so-called “defeat devices” to deceive diesel-emission tests in the first half of 2017. Other enforcement procedures are on the agenda for the car industry, including ACM's plans to fine car dealers that do not include “on-road costs” in their advertised prices (see in this regard, the judgment of the Court of the European Union in Citroën Commerce). ACM is also planning to take enforcement measures against (online) stores that, in ACM’s opinion, offer unfair or unclear prices. ACM has launched an information campaign in this context.

European consumer law

Last year we noted that the European Commission is evaluating the most important consumer directives pertaining to (i) unfair commercial practices, (ii) certain aspects of the sale of consumer goods and associated guarantees, (iii) unfair terms in consumer contracts, (iv) indication of prices, (v), misleading and comparative advertising, and (vi) the protection of consumers’ interests. In the Netherlands these directives have been implemented mainly in Books 3 and 6 of the Civil Code.

In 2016, the European Commission took a number of measures in the context of its Fitness Check. For example, it established a temporary stakeholder consultation group, organised a conference about the modernization of consumer law, and held consultations among consumers, businesses, public authorities and various representative organisations. One interesting outcome of these consultations is that almost half (47%) of participating consumers said they have had problems exercising their rights. Participating businesses on the other hand felt that the complexity of consumer rules was a particular problem.

The European Commission is to publish a report setting out the results of its Fitness Check in the second quarter of 2017. This report will form the basis for future policy on consumer law. Given the results of the consultations, it would be logical for the European Commission to decide that there is room for improving consumer rules, although it is still unclear what form this will take. The only certain thing is that if the European framework changes, it will directly affect Dutch consumer law.

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Martijn van de Hel

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