Considerable progress was made this year on finalising the consumer protection legislation which formed part of the Digital Single Market project.
Digital Content and Services Directive and Goods Directive
Two pieces of EU consumer protection legislation were passed in May, the Digital Content and Digital Services Directive, and the Goods Directive. Member States must adopt domestic implementing legislation by 1 July 2021 and must apply that legislation respectively to:
- Digital content and digital services supplied from 1 January 2022 regardless of when the contract was formed. This is subject to two exceptions – rules on modification of the digital content or services and a trader's right to pursue suppliers higher in the commercial chain in respect of non-conformities, will only apply to contracts concluded on or after 1 January 2022.
- In respect of goods supplied under contracts concluded from 1 January 2022.
See our Radar article for more information.
The Omnibus Directive – GDPR-style fines for non-compliance
In April, we covered the progress on the draft Consumer Enforcement and Modernisation Directive, known as the Omnibus Directive. The Directive achieved final approval in November and is about to be published in the Official Journal. Member States will have two years to bring in implementing legislation, after which there will be a six month period before the legislation comes into effect. If the UK is still an EU Member State by the transposition deadline (in just over two years' time), it will be required to make changes to its consumer protection regime. It may, however, choose to make the changes in order to align with the EU in any event. Either way, businesses selling to EU consumers will need to understand the changes.
Many of the changes made by the Directive mirror provisions which already exist under UK law but there are also some major differences, including the introduction of a new penalties regime, and of new categories of consumer contracts.
The Directive amends four existing consumer protection Directives:
- Unfair Commercial Practices Directive (UCPD) – implemented in UK by the CPUT Regulations.
- Consumer Rights Directive (CRD) – implemented in UK mostly by Consumer Contracts Regulations 2013 (CCRs).
- Unfair Contract Terms Directive (UCTD) – implemented in UK by the Consumer Rights Act 2013 (CRA).
- Price Indications Directive (PID) – implemented in UK by Price Making Order 2004.
The Directive also:
- Requires the Commission to ensure consumers can use the single digital gateway to access information about their rights and to submit complaints through the Online Dispute Resolution platform.
- Introduces fines of up to 4% of turnover in the relevant Member State(s) for non-compliance.
- Introduces new information obligations on online traders.
- Introduces new categories of contract – digital services and goods with digital elements.
Product Safety Regulation
The Product Safety Regulation 2019 was published in the Official Journal in June. The new Regulation aims to increase enforcement of product safety standards in the single market, to strengthen market surveillance, intensify competition controls and promote cross-border enforcement cooperation. Member States will be required to carry out market checks of products sold online to protect consumer health and safety. It will impact UK manufacturers importing and exporting products to and from the EU.
CJEU case on returning defective goods
In June, we reported on a CJEU ruling about whether the customer or the trader is responsible for returning defective goods for repair or replacement. The judgment did not create new law but provided useful guidance on making that assessment on a case by case basis.
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