Information, for what purpose?
Information duties aim to protect consumers. It’s up to Member States to sanction them. Have Member States taken sufficient measures and do these measures contribute to the aim of information duties?
‘Informing is a way of protecting’, this is a major feature of European Consumer Law. In most B2C contracts a trader must provide all kinds of information to a consumer. He has to inform the consumer about the right to withdraw, the main characteristics of a product, his personal data and certain aspects of the contract. The trader has to provide all these details in a clear and comprehensible manner. Besides that, the information must be provided in a durable medium to the consumer after the contract has been concluded. The number of information duties has recently increased by the Consumer Rights Directive (CRD). Since June 2014 Member States must have implemented the information duties of the Consumer Rights Directive (CRD) in their law system. They are obliged to take all necessary measures to provide penalties which are effective, proportionate and dissuasive (Art. 24 CRD). Does all this information really improve the position of consumers? This question is certainly legitimate, but hard to answer. Formulating the objectives of the information on a micro level can be helpful in examining whether law systems provide remedies in the event a trader breaches an information duty. Information about the important characteristics of a product aim to support the consumer in his decision on whether he will enter into a contract with a trader. But information duties have other objectives as well, like guiding the consumer towards performing the contract, assisting the consumer in exercising his legal rights and enabling him to consult the information at a later stage. Sanctions can be regarded as sufficient if they contribute to the realization of these objectives of information duties. Three actors play a role in sanctioning information duties. Their position has pros and cons.
In theory, consumers have several remedies at their disposal. But they don’t have legal knowledge and are financially limited when it comes to usingthe remedies. The incentive for them to gain knowledge and invest in a legal procedure is too low. In addition, remedies available to consumers don’t always contribute to the objectives of the information duties.
Compared to the consumer, the competitor is in a better position to take action against one of his fellow traders. A remedy on his behalf has its advantages. He has more knowledge and more money to use remedies. Although he will easily make use of the remedies, one must take into account that potential abuse must be avoided. Because of its dissuasive effect, a claim by a fellow trader will stimulate traders to comply with information duties.
Enforcers of consumer law (examples are Verbraucherzentralen in Germany, Trading Standards Services in England and the Autoriteit Consument en Markt in the Netherlands) have to enforce information duties. This is subject to political developments and prioritizing policy and therefore not sufficient enough. Besides this, enforcement does not support the objectives to be realized by information duties.