A European Union that protects consumers

Early on, the need was felt to protect the consumer from abusive practices, given the monopoly or at least the domination of a large part of a market by certain companies.
News 23/05/2023

Joana Gomes dos Santos, lawyer and partner, in an opinion article in Advocatus magazine:

“Suppose a branch of law has seen significant development in recent decades. In that case, it is consumer law, extending and intertwining with other components of the law, such as competition law, telecommunications and personal data protection, an increasingly present concern in this digital age.

In fact, from early on, the need was felt, in the face of the monopoly or at least the domination of a large part of a market by certain companies, to protect the consumer from the abusive practices that such a position in those markets allowed them to impose, and this even in markets assumed to be capitalist, such as the North American market. Consequently, it was mainly in the continental European countries that the branch of Consumer Law was accepted and made autonomous, and the European Union also assumed such defence.

More recently, in compliance with the European directive that aims to ensure better enforcement and modernization of Union rules on consumer protection – Directive (EU) 2019/2161 of the European Parliament and of the Council of November 27, 2019 – Law 10/2023, of March 3, was approved and published, which introduces several amendments to the existing legislation to better protect consumers, either by imposing new obligations or by changing the way of sanctioning, which is intended to be dissuasive, to make the practice of widespread infringements or widespread infringements stop or prohibit at the Union level.

One of the new obligations that this law imposes aims at the supply of digital content or digital services in case of exercise, by the consumer, of the right of free withdrawal, that right of extreme importance for one of the most popular forms of purchase of goods and services today – distance contracting.

These changes limit the situations in which the seller can use content other than personal data provided or created by the consumer when using the digital content or services the seller offers.

In some of these exceptional circumstances, where requested, the seller must make content provided or created by the consumer available to the consumer free of charge. Without prejudice to this obligation, the supplier of goods or service provider may, after termination, prevent the consumer from using the digital content or services relating to the terminated contract, in particular by making them inaccessible to the consumer or deactivating his user account.

Another change made by the law concerns the sanctioning of “widespread infringements” or “Union-wide infringements”, with a maximum fine corresponding to 4% of the infringer’s annual turnover (or €2,000,000 when such information is not available). In determining the penalty, an account should be taken, among other things, of the measures taken by the offender to mitigate or repair the damage caused to consumers.

This amendment covers the Legal Regime of General Contractual Terms, the Decree-Law that requires goods intended for retail sale to display their sale price to the consumer, the Decree-Law that needs goods intended for retail sale to show their sale price to the consumer and the regime of unfair commercial practices of companies in relations with consumers.”

The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.

Practice Areas

  • Commercial law
  • Consumer Law
  • Corporate M&A