There is no business like e-business, a colleague used to say. The nature of money involved in doing business, online as well as offline, is becoming increasingly electronic. Christina Riefa (Brunel University) provides an insightful overview of the EU initiatives over the years addressing both e-money and payment services. The topic is complex, as for instance illustrated by the 117 Articles of Directive 2015/2366 on Payment Services, but clearly explained in this chapter. Keywords: e-money, payment services, financial services
Christiana N. Markou and Christine Riefa
This chapter focuses on the protection of the consumer under EU law when purchasing and using applications (apps) for mobile phones. It examines the provisions of two principal EU consumer protection measures, namely the Consumer Rights Directive and the Unfair Commercial Practice Directive, as they apply to the particular digital product which creates special consumer needs. Under these two EU Directives, the consumer is entitled to receive prior information on the product and some of this information is often tailored to the nature of applications as digital content. Moreover, under certain circumstances, the consumer can withdraw from an “app-contract” without having to pay for any content he or she has received. More generally, the consumer should not be misled into purchasing a mobile application or making in-app purchases, and certain of the techniques utilized to push consumers towards such purchases are liable to be considered aggressive and thus legally impermissible even when not misleading. The chapter shows that legislation is in place to protect the consumer, yet as the rules are not app-specific, many issues surrounding their interpretation or practical application may cause problems. The European Commission and national regulatory bodies have issued useful guidelines regarding the application of the rules to mobile applications, but certain issues seem to merit further clarification.
Christine Riefa and Séverine Saintier
Directive 2005/29 provides a blanket ban on unfair commercial practices, which harm consumers’ economic interests. The Directive is said to give a pan-European floor to remedying economic torts and yet, the text itself does not make any reference to being a ‘tort instrument’. The absence of the notion of ‘tort’ in the Directive is surprising given the fact that it requires member states to offer ‘tort’-like remedies, including interim as well as final injunctions for the cessation or prevention of unfair commercial practices. In addition, the scope of the Directive explicitly covers unfair practices ‘before, during and after a commercial transaction’ thus encompassing situations where no contractual link will exist and falling necessarily into the remit of tort law. The absence of any mention of tort undoubtedly brings some ambiguity that the national legal orders have had to grapple with. It is therefore not unexpected that the technical choices member states made in order to implement the Unfair Commercial Practices Directive (UCPD) vary greatly. The question of the impact of the UCPD on the common law system of torts is particularly important, given the limits of tort as a tool to address economic loss, and is the focus of this chapter. The UK has opted for a stand-alone piece of legislation, with the Consumer Protection from Unfair Trading Regulations 2008 (UTR) amended by the Consumer Protection (Amendment) Regulations 2014 which introduces a right of private action. This chapter contends that the introduction of the UTRs in 2008 and their amendment in 2014 is a vast improvement of the protection of consumers, although it is clearly still a work in progress. After reflecting on the inadequacy of traditional torts in remedying economic loss, the chapter demonstrates that in the UK, the UCPD supplants the old traditional barriers and there is no longer a need to decide if a claim is in tort or contract, offering consumers a much easier avenue for redress. Nevertheless it remains doubtful that consumers’ economic losses are going to be adequately compensated, given the limitations of the right of private redress introduced in 2014.