ENPA and EMMA Position paper on the Commission proposal for a Common
European Sales Law (“CESL”) (COM (2011)
The European Commission proposal for a draft Regulation concerning a Common European Sales Law
(CESL) of 11 October 2011 impacts various activities of newspaper and magazine publishers’ businesses.
While EMMA, the European Magazine Media Association and ENPA, the European Newspaper Pu
blishers’ Association welcome the objectives to improve the internal market through encouraging
companies to sell and consumers to buy across borders, we are not convinced that the CESL, as proposed, would achieve these objectives. There are currently extensive and detailed EU rules regarding contractual laws relating to consumers, which already burden publishers significantly, considering that most of them are small and medium-sized enterprises. The risk is that by introducing the CESL in parallel to national sales laws, the applicable rules will only become increasingly more complex.
The CESL is an optional instrument, which can be used for cross-border transactions for the sale of goods, for the supply of digital content and for related services where the parties to a contract agree to do o (under Article 1(1)). Considering that content provided in newspapers and magazines is linked to a certain language and culture, with markets primarily focused on national, regional and local markets there are relatively few cross-border sales.
A particular concern is that - having followed the discussions on CESL - it cannot be ruled out that CESL will become mandatory in the future. In addition, the requirements contained in the CESL could set a precedent for more European legislation. In addition, the current proposal contains numerous provisions that would hinder successful press distribution. Some of these were previously raised in discussions concerning the Consumer Rights Directive 2011/83/EC
but excluded from the final
adopted text for good reason. We hope that decision makers will remember this important point when discussing and voting on the CESL.
Key concerns and recommendations (in chronological order by Article)
The scope of application of the proposal is wide and the provisions are numerous, so for the time being we would like to limit our comments to provisions of particular relevance for press distribution. In brief, ome key concerns and recommendations are as follows (with a further explanation overleaf):
The obligation to inform consumers of a trader’s codes of conduct,
under Article 16 (d), is unclear and
could jeopardise self regulatory initiatives. We would therefore recommend deletion of this article.
2. The obligation to confirm consent following contracts concluded over the phone, under Article 19 (4),
threatens press distribution. We would therefore recommend deletion of this article.
3. The information requirements for contracts between companies, under Article 23, result in legal
uncertainty. We would therefore recommend deletion of this article.
4. Some of the information requirements concerning distance contracts concluded by electronic means,
under Article 24, are too far-reaching. We would, in particular, recommend deleting the requirement for contract terms to be provided on a durable medium, under Article 24(4).
5. The termination provisions, set out under Article 77 (1), will negatively impact press distribution. We
would therefore recommend deletion of this article.
1. The obligat
ion to inform consumers of a trader’s codes of conduct is unclear and could
jeopardise self regulatory initiatives (Article 16 (d))
Article 16 (d) states that consumers have to be provided with information of - where applicable - the existence of relevant codes of conduct and how copies of them can be obtained. This wording is unclear and therefore results in legal uncertainty as it could be interpreted as requiring information on all codes of conduct relating to the party concerned, which would be very burdensome.
Furthermore, it is not accepted that voluntary ethical obligations found in press codes, which set appropriate boundaries between personal rights and the freedom of expression, become a legal obligation through the obligation to provide information. The creation of a legal obligation to provide information contradicts the voluntary character of codes of conduct, is disproportionate and jeopardises the very existence of self regulation.
While there is already EU legislation which states that when a trader indicates being bound by a code of conduct, in the context of a commercial practice, a violation of the code of conduct can constitute a
“misleading commercial practice” (Article 6 (2) b)
of the Unfair Commercial Practices Directive),
importantly Member States have a margin to make clarifications as regards the transposition of the Directive into national law. As this is not the case with a Regulation we would propose deletion of this article.
2. The obligation to confirm consent following contracts concluded over the phone threatens
press distribution (Article 19 (4))
Under Article 19 (4) the contract is said to only be valid when followed by a signing of the offer or sending written consent indicating a willingness to conclude the contract. It is unclear why the proposal includes this requirement of confirmation following a contract concluded by the phone. This idea was raised during the legislative debate on the Consumer Rights Directive (CRD), but it was agreed that it was better left out of the text. This approach would have a significant impact on press distribution. Stipulating that contracts are invalid when not later confirmed by a consumer means, in practice, a prohibition of contracts concluded over the phone. If such contracts were completely prohibited, this would result in an unnecessary obstacle for both consumers and businesses
In several EU Member States, concluding contracts by phone is a preferred and indispensable way of
concluding contracts for both parties. From a consumer’s
point of view, services such as press
ubscriptions can be ordered easily, without written confirmation or additional expenses. It is for good reason that the CRD (Article 8(6)) leaves the decision whether such a provision should be implemented up to the Member States, while taking into account national specificities. The proposal in CESL under Article 19(4) that confirmation by the consumer has to be mandatory is burdensome both for consumers and businesses and should therefore be deleted.
3. The information requirements for contracts between companies (under Article 23) result in
Under Article 23 of the CESL, the supplier has a duty to disclose by any appropriate means to the other trader any information concerning the main characteristics of the goods, digital content or related services to be supplied which the supplier has or can be expected to have and which it would be contrary to good faith and fair dealing not to disclose to the other party before the conclusion of a contract for the sale of goods, supply of digital content or provision of related services by a trader to another trader.
It is unclear for particular traders which information has to be made available, which results in legal uncertainty. As it is already mandatory to provide information concerning the contract, it is questionable which additional information this provision would cover. We would therefore propose deletion of Article 23.
4. The information requirements concerning distance contracts concluded by electronic means
(under Article 24) are too far-reaching
The information requirements referred to in Article 24 go beyond the already extensive information requirements set out in the Consumer Rights Directive and impose an additional administrative burden. In particular, it is unclear why under Article 24(4) the trader must ensure that the contract terms referred to in Article 24 (3), e) are made available in alphabetical or other intelligible characters and on a durable medium by means of any support which permits reading, recording of the information contained in the text and its reproduction in tangible form.
This represents a considerable burden to these distance contracts concluded by electronic means, and would complicate if not impede the process of making of an order online. We would therefore propose deletion of the requirement for contract terms to be provided on a durable medium, under Article 24(4).
5. Cancellation provisions will negatively impact press distribution (Article 77 (1))
Article 77(1) stipulates that where, in a case involving continuous or repeated performance of a contractual obligation, the contract terms do not stipulate when the contractual relationship is to end or provide for it to be terminated upon giving notice to that effect, it may be terminated by either party by giving a reasonable period of notice not exceeding two months. The existence of such a default rule would ignificantly disturb the distribution of magazine and newspaper subscriptions, as it would mean that it is impossible for contracts to be automatically extended after a certain period has lapsed.
Having a clearly predictable amount of subscriptions is important to determine the demand, which is a key factor for publishers in determining the prices of their products. In addition, concluding a twelve month (or longer) subscription has clear advantages for consumers as this arrangement gives publishers the security they need to organise subscriptions at a reduced price and to offer attractive extras. Should these types of contracts no longer be possible, there will be much reduced possibilities to uccessfully distribute the press. We would therefore recommend deletion of this article.
ENPA Deputy Director
EMMA Senior Legal Adviser
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