An Interview with the Head of Enforcement of Consumer Law and Redress in the European Commission: Marie-Paule Benassi

Marie-Paule Benassi is the Head of Enforcement of Consumer Law and Redress in the European Commission and is responsible for coordinating the work of national authorities when businesses do not respect consumer rights in several or all countries of the European Union. This interview was conducted in Fall 2021. It has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): Could you briefly introduce yourself and your occupation in the European Commission? How does the commission articulate these consumer law policies among the 27 member countries of the European Union? 

Marie-Paule Benassi:  I am head of the unit in the Department for Justice and Consumers, in charge of the enforcement of consumer legislation, and I’ve been doing that for 10 years. We work with national authorities because enforcement of consumer law is a responsibility of member states, not of the EU commission. The European Commission is competent in only a few areas clearly mentioned in the EU treaty, for instance, competition law. 

Consumer law is mostly a EU-level legislation, and, in its vast majority, harmonized. You have thus the same consumer rights in all the countries of the EU and can purchase with confidence from any trader of the EU when you travel, by post, or even by internet. It is also a simplification for traders since they don't have to know the consumer law of each member state because there is a unique consumer law for the Union. But this means that a single law is implemented in 27 member states and that there is a need for coordination on EU-level issues. We do that when it concerns large companies active in many member states, for example, big online platforms, big marketplaces, travel operators, or airlines. Our role is to ensure that Member States work together and address in a coordinated manner, the problems that can be caused by such big companies. 

HULR: In your opinion, to what extent is European consumer law more protective than consumer laws in other countries? 

MPB: It is generally recognized that Consumer law is well developed within the European Union. It is not necessarily more protective, but it concerns more sectors. To give an example, compared to the United States, where the consumer legislation is also well-developed, the European consumer law goes further when it concerns unfair contract terms. The European directive on unfair contract terms allows any consumer to bring an action in a civil court and argue that they have been obliged to accept a contract that contains unfair commercial contract terms discovered later on. If the clause is considered by the judge as unfair, it will not be applicable anymore. The contract can even be rescinded, and thus not be binding anymore. In the US a serious problem for the performance of the contract must be demonstrated. So unlike in the EU, a consumer association cannot obtain changes of contracts on the mere examination of the fairness of terms. 

HULR: Do coordination problems occur regarding the implementation of consumer law within the Member States of the European Union or is it generally well accepted? 

MPB: Over the last 20 years, EU consumer law evolved considerably so that there is now many rules that are harmonised for the entire Single Market. This makes life easier for businesses but also for enforcement authorities which before had to deal with different rules and requirements, especially information requirements and requirement of warranties. But now, businesses are used to that. We have done a number of studies, which show that the burden on businesses is not that big. In addition, what is important is that there is a level playing field within the union. One of the most recent issues we have is related to digital trade, considering that we now have a lot of companies, and especially marketplaces, which are selling goods online from outside of the Union, and sometimes do not respect some of the European rules. These companies, for example, do not respect the right to repair or withdrawal rights. And so, if you purchase something, for example, from a Chinese platform, and it's not working, it might be very difficult for you to get it repaired. Likewise, if you don't like it and want to send it back, it could be problematic, because you will have to send it by post somewhere in China, which can be difficult to find. Businesses operating in the EU are not satisfied with this situation, as there is no level playing field if some businesses are not respecting all applicable rules, and have asked the European Commission to do more enforcement actions. This is the reason why, for example, in my unit, we are in discussions with a number of these platforms, like Aliexpress or Wish. We want that from the moment these platforms sell into the Union they respect consumer rights of the Union. It is not easy, but we are pushing on them so they comply with consumer law applicable within the frontiers of the Union. 

Sometimes, the trader is not transparent and does not inform the consumer that once you import from outside the EU, you have to pay taxes, VAT, as well as import taxes. Some of these online platforms voluntarily hide such information to make prices appear as low as possible or even put the minimum value, under which you do not have to pay taxes. Sometimes it is mentioned as a gift when it is of low value to avoid paying tax. When customs check this, from time to time, and discover that customs duties have not been paid, the public authorities will ask the customer to pay all these taxes. It raises serious issues for the level playing field when goods as sold without including taxes and this puts consumers at risks of having to pay such taxes and possible fines if they are controlled by customs. This is the type of issue which the Commission has addressed in recent changes of legislation by abolishing VAT thresholds and asking platforms to collect the VAT, for example.

HULR: Could you explain how enforcement procedures work, and if it's easy for consumers to claim their rights and find protection under European consumer law? 

MPB: When you have a problem as an individual consumer, what should you do? The first thing most consumers do is go back to the trader. If it's a shop, it is obviously easier than if it's an online Chinese platform. But even these platforms now have dispute resolution procedures and customer service because they would lose clients and profits if not. Traders try to solve the problems encountered by their customers, but sometimes they face more difficult problems or problems that require quite a lot of money to be solved. In order to face this risk, traders need to have dispute resolution mechanisms. In the European Union, we have the Alternative Dispute Resolution Directive (ADR Directive), which requires all the Member States to put in place ADR entities, which cover different economic sectors. Moreover, it must be cheap for consumers because otherwise, they will not initiate the procedure if it is complicated and time-consuming. We are now evaluating the efficiency of this directive, and we see that it helps consumers but not in all cases. It seems not to be efficient for very small amounts, and for some traders who know that the consumers will give up after a certain period of time. This is why we have also implemented a new directive, which is called the Directive for representatives actions for the collective interest of consumers. The Union version of "class actions" in the US terminology. This new directive is going to give the possibility for consumer associations to do collective redress cases in all the member states of the Union, which was not the case before. It is very important especially when individual claims represents small amounts to group all claims in one case.  However it will remain procedures to be used in exceptional cases as they will imply fairly complex and thus long court procedures, enabling business to delay conclusions as much as possible through their defense strategies. There is, at this time, no harmonization or any simplification of the legal procedures because procedural law is the responsibility of the member states and the Union, in principle, does not intervene in the procedure. 

HULR: Regarding the UK, what are the legal consequences of Brexit on consumer law?

MPB: The UK was using and was very good in implementing EU legislation relating to consumers but is not bound by it anymore. For the moment, we think that the level of protection is equivalent and will remain equivalent for a long time. We'll see of course in the following years, but it is unlikely that the level of protection will decrease. 

HULR: The Harvard Undergraduate Law Review’s primary readership is students that are interested in law. In your opinion, why might studying European consumer law be interesting to read for an American lawyer?

MPB: Yes, of course, I think it is. The European Commissioner for Justice, Didier Reynders, is also in charge of all questions related to consumer policy, democracy, rules of law, and data protection went to the United States on October 14th, [and] gave an interview to the Washington Post mentioning his interest to establish stronger cooperation with the American authorities regarding consumer protection policy. In fact, the consumer problems are exactly the same in the EU and the US, for example in relations to all the big platforms and the applicable principles of law are very similar regarding for example the evaluation of unfairness. Therefore, we would like to establish cooperation with our counterparts in the US. Our US partners and stakeholders are interested in consumer law, both in order to facilitate transatlantic trade but also to improve regulatory convergence. Since Mr Biden became President, links between the EU and the US are reinvigorated and especially regarding digital markets.   

HULR: Regarding the cooperation between the European Union and the United States, is it done formally through treaties, or is it still informal? 

MPB: Not for the moment, regarding consumer protection, it is still informal. One important thing worth noting is that the US terminology consumer protection also includes privacy. However, it is not the case in the European Union, where we consider privacy as a policy under the Charter of Fundamental Rights, even though it has many economic implications. We are currently working on a number of other types of legislation, such as the Digital Services Act or the Digital Markets Act, which are now receiving a lot of interest from our American counterparts.