Ecommerce Europe warns EU legislators about amendment 69 in the Omnibus directive

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On 11 April 2018, the European Commission released a proposal for a Directive on Better enforcement and modernisation of EU consumer protection, also known as the Omnibus directive. The directive is part of its New Deal for Consumers package and it aims to clarify certain aspects of the EU consumer legislation and bring it into line with the reality of the digital economy. As the EU Council is about to agree on its position, Ecommerce Europe warned the EU legislators about the negative impact of amendment 69 on the e-commerce sector.

The European Parliament’s Internal Market and Consumer Protection (IMCO) Committee’s amendment 69 introduces a completely new information requirement under the Consumer Rights Directive to notify consumers if a good or service sold was notified and removed by the online marketplace because it was illegal or apparently legal, the identity of the trader who placed the offer and the reason for why this offer was removed.

In Ecommerce Europe’s opinion, amendment 69 could have a negative impact on the e-commerce sector, should it be included in the final text of this Directive. The main problem with this proposed wording is that “illegal” covers an extreme range of product non-compliance with many different laws, such as product packaging design (e.g. showing raspberries although there are no actual raspberries in the tea), product names (a salt being marketed as “Himalaya salt” although it was mined only in the vicinity of the Himalaya), a product labelled in the wrong language (e.g. a French customer receiving a product labelled in English when purchasing on a French website).

There are existing laws around product recalls and if a manufacturer, under those laws, is not obliged to inform his customers about a case of “illegality” after delivery, then it is disproportionate for either sellers or intermediaries to be obliged to do so as this would not constitute a level playing field. If this is to be adopted and implemented by online marketplaces / online intermediation services, Ecommerce Europe believes it needs to be limited to “dangerous products” as defined in the GPSD in order to be enforceable.

This would bring any obligations in line with the proposed recital 19a, which refers to goods “which may pose a threat to their [consumers’] health and safety”. That does also cover counterfeit products – if they pose a health and safety risk to consumers, as well as products sold without the appropriate warnings or with wrong information on the safe use, if that lack of warning makes them dangerous. The important differentiation is that it does not cover products that are prohibited to be sold online for more general reasons (tobacco), or just any random counterfeit where there is no indication of a safety concern.

Moreover, the wording of amendment 69 is not in line with the concerns outlined in recital 19a (new). If online intermediation services offer goods and services to consumers and must notify them once any illegal content has been removed, negative externalities can quickly arise.

With the removal of, for example, terrorist content or child sexual abuse material (CSAM), an information service provider should not alert the consumer about the removal if the content was uploaded by the consumer on the service provider. This would potentially hamper ongoing investigations and alert the consumer that their criminal activity has been spotted.

Furthermore, alerting a consumer of any possible illegality arising from a good or service, as described above, would lead to a barrage of messages that would not help them make informed choices and would only result in spam.

The EU Council is expected to agree on its position on 27 February after which trialogues with the European Parliament and the European Commission can begin. The trialogues would have to end by the end of March if the legislators want to avoid continuing the negotiations after the European elections in May.

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