SEMINAR MARKET SURVEILLANCE IN THE AREA OF CONSUMER PROTECTION

1. SEMINARMARKET SURVEILLANCE IN THE AREA OF CONSUMER PROTECTION Belgrade, 1 February 2013

2. Building up a system for an effective surveillance of consumer markets

3. Our objective To design an adequate set of measures aimed at ensuring that producers and traders comply with the obligations and requirements set out in consumer legislation.

4. Basic principles • proactive v. passive • preventive v. corrective • comprehensive v. piecemeal • planned v. occasional

5. A strategic planning • Defining short-, mid- and long-term goals • Defining risk detection, assessment and management processes and methodologies • Planning checks and controls • Setting priorities: e.g., implementation of sectoral surveillance programmes by categories of products, practices or risks • Defining performance indicators

6. Basic principles • Legitimacy: surveillance activities and practices based on and within the scope of the relevant provisions of the applicable laws = need to develop MS provisions in the LCP. • Plurality of actors (State, judiciary, NGOs) • Plurality of tools (regulations, codes of conduct, judicial proceedings, out-of-court schemes) • Consistency: clear allocation of responsibilities + institutional coordination

7. Basic principles • Proportionality: - of powers and - of sanctions (Enforcement Pyramid approach = priority to administrative remedial action). • Transparency: motivating decisions, reporting requirements. • Participatory governance: ensuring effective participation of stakeholders, including consumer representatives.

8. Basic principles Participation: • National Council for Consumer Protection • sub-group Consumer Committee • Management of ADRsschemes • Management of Codes of conduct • Legal standing of consumer organizationsbeforecourts

9. Surveillance-related obligations • Setting-up an adequateinstitutional framework for MS • Enhancing a knowledge-based policy • Providing MS authorities with adequate investigation powers and sanctions, namely to cope with emergency situations • Promoting private enforcement tools and procedures • Developing inter-state /regional administrative cooperation

10. Adequate institutional framework for MS • One clearly designated and well-identified State institution main responsible for MS in the area of consumer protection and also for supervising MS by other competent authorities • Sufficient financial, technical and human resources • The need for a coordinated MS system (among state bodies, national v. regional, state v. non-state)

11. A knowledge-based surveillance policy • Setting-up a national, uniform and computerized system for the collection and registration of consumer complaints. = Consumer Complaints Register: design/users and administrator/use of templates/technicalrequirements/benefits: more effective access to legal advice, facilitating and uniformizing the handling of consumer complaints, statistical reports and policy analysis. .

12. A knowledge-based surveillance policy • Collection and publication of consumer cases dealt with by Courts and by out-of-court schemes. • Use of national data basis: • On dangerous goods: NEPRO or Rapid System of Exchange of Information on Dangerous Products http://www.nepro.gov.rs • Use of EU data bases: • on unfair terms in consumer contracts: CLAB Europa was in operation in the 90s; also see EC Consumer Law Compendium or EU Consumer law Acquis database (until end of 2008): http://www.eu-consumer-law.org/index.html

13. A knowledge-based surveillance policy • on unfair commercial practices https://webgate.ec.europa.eu/ucp/ • on consumer complaints (ECCRS - European Consumer Complaints Registration System) http://www.ec.europa.eu/consumers/complaints/docs/ eccrs_user_guide.pdf

14. A knowledge-based surveillance policy • Access to EU/international exchange of information networks: • on unfair commercial practices: International Consumer Protection and Enforcement Network (ICPEN), formerly known as the Marketing Supervision Network (IMSN): https://icpen.org • on unsafe products: RAPEX or Rapid Alert System for Non-food Products: http://www.ec.europa.eu/consumers/dyna/rapex

15. Adequate investigation powers and sanctions, • Granting inspectors with broad investigation powers: authorization to enter business premises, taking samples, etc. • Providing for directly applicable administrative sanctions: • oral and written warnings • cease-and desist orders: orders to stop using unfair terms in consumer contracts, using unfair commercial practice, not complying with the law within a fixed time limit. • administrative fines Consumer Fund

16. Adequate investigation powers and sanctions • Transposing the EU Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (Codified version). • Actions for a judicial and/or administrative injunction • Expedient or summary procedure • Possibility to impose a fixed amount for each day’s delay in the event of failure to comply • Designation by each member state of the entities qualified to bring an action: state body(ies) in charge of consumer protection, consumer organizations. • Arrangements for intra-Community infringements: mutual recognition of legal standing of national entities qualified to bring an action. (+ Report from the Commission concerning the application of Directive 2009/22/EC, COM(2012)635 final, 6 November 2012).

17. Adequate investigation powers and sanctions • More dissuasivecriminal penalties • Higher amounts of penalties • Other criminal sanctions: confiscation of profits, etc. • Ensuring that inspectors are appropriately trained, employ best practices and are supported by continuing professional development.

18. Enhancing private enforcement • Adequate consumer remedies: e.g., choice among refund, replacement or repair • Individual consumer disputes: • Judicial small claims courts/procedures: reduced costs, representation of individual consumers, time limits and less formalism. • Out-of-court disputes resolution schemes based on mediation or arbitration – Consumer-friendly/Quality criteria: e.g., independence, efficiency, transparency = proposals of EU Directives on ADRs and ODRs.

19. Enhancing private enforcement • Collective consumer disputes: clarifying the legal status of collective redress procedures seeking for compensation of the damage caused: • to a group of consumers (opt-in/opt-out) • or to the collective interest of consumers. • Solving the funding issue: • Widening the scope of existing legal aid programmes (especially in favor of consumer groups). • Setting-up a Consumer Fund

20. Inter State/Regional administrative cooperation • EC Regulation 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (2004) OJ L 364, p.1 to 11. This Regulation provides the legal framework for a cooperation network, which was set up in November 2007 (2007 OJ C 286, p.1). • Exchanging information about complaints • Handling cross-border consumer complaints • Exchanging information about unfair practices • Exchanging information about MS measures taken such as injunctions • Joint market surveillance activities • Cross-border injunctions

21. Inter State/Regional administrative cooperation • Participation to EU/international exchange of information systems; notification of measures taken against practices contrary to the consumer interest, distribution of information received from other Member States. • Product safety area: EU RAPEX • Economic interests of consumers: International |Consumer Protection Enforcement Network (see above)