Unfair Commercial Practices Research Articles

The impact of consumer protection in the digital age: Evidence from the European Union

We investigate the effect of an EU-wide consumer protection regulation on consumer trust as well as consumer behavior. The Unfair Commercial Practice Directive (UCPD) was implemented by EU member states between 2007 and 2010. We utilize data from the Special and Flash Eurobarometer for the years between 2006 and 2014 and experts’ evaluation on consumer protection levels before the introduction of the regulation. This rich data set allows us to apply a difference-in-difference estimator with multiple time periods. We find a significant relationship between the introduction of the UCPD and consumer trust and cross-border purchases for countries with a low consumer protection level before the introduction of the UCPD. The relationship increases over time and stays then relatively constant.

Addressing aggressive commercial practices: Some critical aspects of its regime in the Unfair Commercial Practices Directive

Aggressive commercial practices are a type of conditioning factor imposed by businesses on consumers to modify their freedom of choice. Today, no-one is in any doubt about the financial and social impact aggressive commercial practices can have on consumer wellbeing. In fact, this type of unfair practices has caused, and continues to cause, significant damage to the interests of consumers, as evidenced by the financial crisis which has recently beset Europe. Aware of this problem, European institutions have made consumer protection from unfair commercial practices a priority in their legislative policies. Some of these initiatives have already been in place long enough to allow their results to be analysed (for instance, Unfair Commercial Practices Directive). Others, on the other hand, are still at an early stage (for instance, the New Deal of Consumers legislative proposals), but nevertheless invite reflection. In the light of current trends which argue in favour of greater protection for consumers than has been the case to date, this study will review the European regime of aggressive commercial practices, and analyze the most relevant decisions, especially focused on the financial sector.

The Impact of Consumer Protection in the Digital Age: Evidence from the European Union

We investigate the effect of an EU-wide consumer protection regulation on consumer trust as well as consumer behavior. The Unfair Commercial Practice Directive (UCPD) was implemented by EU member states between 2007 and 2010. We utilize data from the Special and Flash Eurobarometer for the years between 2006 and 2014 and experts' evaluation on consumer protection levels before the introduction of the regulation. This rich data set allows us to apply a difference-in-difference estimator with multiple time periods. We find a significant relationship between the introduction of the UCPD and consumer trust and cross-border purchases for countries with a low consumer protection level before the introduction of the UCPD. The relationship increases over time and stays then relatively constant.

Coronavirus As a Catalyst to Transform Consumer Policy and Enforcement

A review of the unfair commercial practices (including price gouging) that have emerged in the context of the pandemic lead us to reflect on how effective consumer law enforcement is at this juncture. This article calls for the pandemic to act as a catalyst to review the way consumer law has so far approached markets and their regulation. It argues that now, more than ever, consumer law needs to protect the vulnerable and public enforcement mechanisms must be able to prevent harm as much as possible rather than repair it. Fairness should be by design and not something that is offered to consumers simply as a remedy. The article explores some viable solutions to effect this transformation of consumer policy and enforcement beyond the pandemic.

Adaptation of consumer law to the digital age: EU Directive 2019/2161 on modernisation and better enforcement of consumer law

This Paper examines the most important innovations in the recently adopted European Directive 2019/2161 on better enforcement and modernisation of Union consumer protection rules. First, by adding the innovative rules, such as the ones on the trustworthiness of online reviews, the Directive aims to adapt the European regulatory framework on consumer protection to the challenges and particularities of the digital age and the digital market. Second, through the sharp rise of the fines for breach of consumer law and through the introduction of a mandatory individual remedy to the consumers who has been a victim of unfair commercial practices, the Directive substantially contributes to strengthening of the general enforcement mechanism of EU consumer law and achievement of high level of consumer protection.

Legal Importance of Codes of Ethics in Insurance

According to the author, codes of ethics are of significant importance as an example of self-regulation of the insurance market despite the fact that they do not belong to the constitutional sources of law. Non-compliance with the code of ethics by an entrepreneur may constitute unfair commercial practice in relation with consumers or unfair competition practice in relation with other entrepreneurs. Moreover, codes of ethics may specify the contents of general clauses regulated by the Civil Code, thus influencing the contents of the contracts concluded and validity of clauses thereof as well as the unlawfulness as an element of tortious fault and the level of professional due diligence required to be released from liability for the non-performance of contracts. In the author’s opinion, the entry into force of the Insurance Distribution Act ought to encourage updating and concretisation of the existing ethical codes.

“Cláusulas de permanencia”, prácticas comerciales desleales, y estrategias competitivas a la luz de ciertos contratos con operadoras móviles en España: Una visión holística del asunto

En el contenido de determinadas “condiciones generales de la contratación” establecidas en contratos de adhesión, y en concreto, de algunas compañías de telefonía móvil, es una práctica común, la inclusión de cierta “cláusula predispuesta” que por sus características y tras el análisis realizado en esta contribución podrían llegar a considerarse como una cláusula abusiva. Por otro lado, podrían además, tener la condición de práctica comercial desleal según lo establecido en la Ley 3/1991 de Competencia desleal española, atendiendo a lo dispuesto en la Directiva de prácticas comerciales desleales. El análisis pretende poner de relieve estos dos aspectos que están relacionados con otro problema de fondo. La dificultad y falta de mecanismos adecuados entre el reproche de deslealtad y el reproche que se hace en el ámbito del Derecho de los contratos de consumo Business to Consumer-B2C de abusividad a ciertas prácticas. De otro lado, se analiza de forma sucinta, si la inclusión de estas cláusulas podría considerarse como una estrategia competitiva en el Mercado de las Telecomunicaciones de tipo Business to Business-B2B por aquellos operadores que las predisponen en sus contratos de adhesión frente a los operadores, que siendo de menor tamaño, no las predisponen en estos mismos contratos. General Conditions of the Contracts, which are included in certain Adhesion contracts (Standard Form Contracts) and are drafted by the telephone operators companies, include a very special kind of clauses, “retention covenants”. These clauses constitute a limitation for the users and consumers, which also it refrain them to withdrawal the contract with the Mobil operator. One of the drawbacks is that, these legal conditions are allowed to the detriment of the weaker party, the consumer. According to the analysis, these kinds of clauses can be also constitutive of aggressive practices typified in the current Spanish Unfair competition Act and the European Consumer Law, stressing the problems between the connection between the unfair commercial practices and Consumer Contract Law, i.e.: considering these clauses not only as abusives but also unfairs. Moreover, these practices from a Business-to-Business (B2B) approach could be considered an anti-competitive practice, because by means of its establishemnt in these contracts, are hampering the competition, in the Telecommunications Market

Restrictions on Privacy and Exploitation in the Digital Economy: A Competition Law Perspective

The recent controversy on the intersection of competition law with the protection of privacy, following the emergence of big data and social media is a major challenge for competition authorities worldwide. Recent technological progress in data analytics may greatly facilitate the prediction of personality traits and attributes from even a few digital records of human behaviour. There are different perspectives globally as to the level of personal data protection and the role competition law may play in this context, hence the discussion of integrating such concerns in competition law enforcement may be premature for some jurisdictions. However, a market failure approach may provide common intellectual foundations for the assessment of harms associated to the exploitation of personal data, even when the specific legal system does not formally recognize a fundamental right to privacy. The paper presents a model of market failure based on a requirement provision in the acquisition of personal information from users of other products/services. We establish the economic harm from the market failure and the requirement using the traditional competition law toolbox and focusing more on situations in which the restriction on privacy may be analysed as a form of exploitation. Eliminating the requirement and the market failure by creating a functioning market for the sale of personal information is imperative. This emphasis on exploitation does not mean that restrictions on privacy may not result from exclusionary practices. However, we analyse this issue in a separate study. Besides the traditional analysis of the requirement and market failure, we note that there are typically informational asymmetries between the data controller and the data subject. The latter may not be aware that his data was harvested, in the first place, or that the data will be processed by the data controller for a different purpose or shared and sold to third parties. The exploitation of personal data may also result from economic coercion, on the basis of resource-dependence or lock-in of the user, the latter having no other choice, in order to enjoy the consumption of a specific service provided by the data controller or its ecosystem, in particular in the presence of dominance, than to consent to the harvesting and use of his data. A behavioural approach would also emphasise the possible internalities (demand-side market failures) coming out of the bounded rationality, or the fact that people do not internalise all consequences of their actions and face limits in their cognitive capacities. The paper also addresses the way competition law could engage with exploitative conduct leading to privacy harm, both for ex ante and ex post enforcement. With regard to ex ante enforcement, the paper explores how privacy concerns may be integrated in merger control as part of the definition of product quality, the harm in question being merely exploitative (the possibility the data aggregation provides to the merged entity to exploit (personal) data in ways that harm directly consumers), rather than exclusionary (harming consumers by enabling the merged entity to marginalise a rival with better privacy policies), which is examined in a separate paper. With regard to ex post enforcement, the paper explores different theories of harm that may give rise to competition law concerns and suggest specific tests for their assessment. In particular, we analyse old and new exploitative theories of harm relating to excessive data extraction, personalised pricing, unfair commercial practices and trading conditions, exploitative requirement contracts, behavioural manipulation. We are in favour of collective action to restore the conditions of a well-functioning data market and the paper makes several policy recommendations.

Prácticas comerciales desleales, acciones individuales y armonización plena

El sistema de las acciones individuales de derecho privado a disposición de los consumidores que hayan estipulado un contrato bajo la influencia de una práctica comercial desleal no queda disciplinado por la Directiva 2005/29/ CE y parece hoy fragmentado y, a menudo, inadecuado. Sin embargo, con un análisis más minucioso del ordenamiento europeo, se puede observar cómo, aunque de manera indirecta, muchas de las Directivas relativas al derecho de consumidores facilitan instrumentos eficaces a disposición de los mismos consumidores. En los casos en los que no haya esta interacción, de todos modos, es posible garantizar tutela recurriendo al principio general de buena fe.Recibido: 23 mayo 2019Aceptado: 08 julio 2019Publicación en línea: 31 octubre 2019

Planned obsolescence and consumer protection

Purpose – The text addresses the problem of planned obsolescence from the point of view of consumer protection, based on the decisions of Autorità Garante della Concorrenza e del Mercato which condemned Samsung and Apple on the grounds of the prohibition of unfair commercial practices. It aims to consider the scope of the applicable similar norms in Portuguese and Brazilian legal systems.
 Methodology – Analysis of the grounds relied on those decisions, as well as the relevant doctrine regarding planned obsolescence and consumer protection from a comparative law perspective.
 Findings – The text demonstrates which norms can ensure consumer protection in the case of technical or functional planned obsolescence, especially considering the communication dimension, which focuses on the right to information.

Trademark Functions in European Union Law - Also Containing a Comment on CJEU case C-129/17, Mitsubishi v. Duma

The doctrine of trademark functions was developed and discussed under national law long before the CJEU elaborated its much-criticized approach towards the issue. However, the Court readily embraced the concept of functions in order to expand the limits of trademark law into what was previously considered as forming part of unfair competition law, thus creating a fairly consolidated body of case law combining elements of trademark law and unfair commercial practices. While the results of that strategy, all in all, can be evaluated positively, the CJEU’s utilization of the functions doctrine is flawed where, as in Mitsubishi, it results in blatant disregard for the limits of legal harmonization that has been achieved so far.

Harmonization of the protection against misleading commercial practices: ongoing divergences in Central European countries

Research background: Modern European integration focuses on competition in the internal single market, embracing both competitiveness and consumer protection, and it aims at full harmonization in this arena. The hallmark, the Unfair Commercial Practices Directive from 2005, aims to overcome diverse social, political, legal and economic traditions. Is the implied protection against misleading practices an opportunity or a threat for Central European Regions?
 Purpose of the article: The primary purpose is to comparatively describe and critically assess the transposed legal frameworks. The secondary purpose is to study and evaluate their coherence in the light of the case law and their impact in Central Europe, in particular whether it represents an opportunity or a threat for the smart, sustainable and inclusive growth, i.e. boosting competitiveness and innovation along with consumer welfare.
 Methods: The cross-disciplinary and multi-jurisdictional nature of this paper, and its dual purposes, implies the use of Meta-Analysis, of various interpretation techniques suitable for legal texts and judicial decisions, of the critical comparison and of a holistic assessment of approaches and impacts. Legislation and case law are explored and the yielded knowledge and data are confronted with a field search and case studies. The dominating qualitative research and data are complemented by the quantitative research and data.
 Findings & Value added: For over one decade, the Unfair Commercial Practices Directive has required full harmonization of the protection against, among other items, misleading commercial practices, by legislatures and judges in the EU. The exploration pursuant to the two purposes suggests that this ambitious legislative and case law project entails a number of transposition approaches with varying levels of coherence, importance and impacts on the competitiveness and innovation of business and consumer welfare in Central Europe. Therefore, full harmonization should be either readjusted or relaxed.

Female Servitude by Default and Social Harm: AI Virtual Personal Assistants, the FTC, and Unfair Commercial Practices

The prevalence of artificial intelligence (AI) -driven virtual personal assistants (VPAs), both in the home and in businesses, is increasing. Yet, the key VPAs on the market today – Siri (Apple), Alexa (Amazon) and Cortana (Microsoft) – appear to be gendered female. This gendering takes place not just through their designation with female names which coincide with mythical and stereotyped views on gender (Siri is a Nordic name meaning “the beautiful woman that leads you to victory”), but also through female voices that users find more comfortable to instruct and give orders to than a male voice, and through witty and flirtatious characters revealed through their programmed responses to even the most perverse questions. It is, therefore, a gendering which is problematic: depicting the category “female” as an assistant – or secondary – to their male counterparts. Noting the post-phenomenological arguments set out by Mireille Hildebrandt that the technologies we use not only reflect and embed our presumptions and social biases, but also reproduce them in new ways that have material effects on us, we explore how the gendering of AI-driven VPAs poses a critical social harm by, as Julie Cohen describes in relation to Hildebrandt’s contentions, ‘continually, imminently mediating and pre-empting our beliefs and choices’ about the role of women in society. More critically, and in response to what we argue to be a social harm caused by the gendering of AI-driven VPAs produced by US-based companies Apple, Microsoft and Amazon, we explore the role and mandate of the Federal Trade Commission (FTC) as the broadly-mandated regulatory body for consumer protection. In particular, we analyse two distinct functions of the FTC. The first, its role with regard to the protection of data privacy and the extent to which data privacy impact assessments that necessitate an investigation of the social impact of new technologies beyond the privacy paradigm, can be drawn on here as a potential solution. And the second, the role of the FTC to investigate, protect and prevent ‘unfair or deceptive acts of practices in commerce’, and the extent to which the gendering of AI-driven VPAs can be gainsaid to constitute an unfair commercial practice.

New Obligations for Internet Intermediaries in the Digital Single Market — Safe Harbors in Turmoil?

The E-Commerce Directive (hereafter “ECD”) has been crucial for the flourishing of the information society. The directive introduced horizontally across all sectors a framework of conditional liability enabling the development and functioning of online services in various forms. Internet intermediaries, performing mere conduit, caching or hosting functions are shielded from liability for the illegal conduct of third parties provided that the intermediary is in no way involved with the information transmitted, or, in the case of hosting services, does not have knowledge or awareness of the illegal activities taking place. Upon obtaining such knowledge or awareness, the service is required to expeditiously act to stop the illegal conduct. Portrayed as the gatekeepers of information online, intermediaries have been targeted by the European Digital Single Market in various contexts. The general theme is the following: the digital environment provides numerous opportunities, but these are tightly linked to regulatory challenges and as gatekeepers of information, online platforms should embrace more responsibility as far as the availability of illegal content on their services is concerned. As a result, a line of policy and legislative actions seek to nuance the existing liability regime for Internet intermediaries. The emerging framework deeply differs from the conditional liability regime within the ECD. Even though the safe harbour pursuant to Article 14 of the ECD is said to remain intact, the landscape is nowadays supplemented by a new Directive on copyright in the Digital Single Market (hereafter “DSM directive”), an amendment to the Audio-visual Media Services Directive (hereafter “amended AVMSD”) and a guidance on the interpretation of the Unfair Commercial Practices Directive (hereafter “UCPD Guidance”). These pieces of legislation generate further layers of obligations on online intermediaries such as monitoring obligations, duties of diligence, reporting and flagging, requests to cooperate with rightholders, requirements to conclude licensing agreements, obligation to adopt appropriate measures to prevent unlawful content and calls for them to design platforms in a way that prevents consumers from being misled. Moreover, this new emerging framework is strongly characterised by problem-driven approach to regulation depending on the kind of content at stake. Theoretically, the new regime for intermediaries would have to function in a complementary manner with the current ECD conditional liability framework. However, the emphasis on the adoption of automatic filtering systems and a clear encouragement to invest in such technologies results in a dangerous clash with Articles 14 and 15 of the ECD. More precisely, using filtering systems blurs the line between active and passive hosting providers, a distinction subject to detailed analysis by the CJEU in a number of cases. The jurisprudence of the court has gradually associated the requirement of knowledge and awareness of copyright infringing content with the active role of an intermediary. Such a role goes beyond the mere provision of services neutrally and the technical automatic processing of data provided by users. In other words, proactive measures suggest that intermediaries would retain control over what is uploaded on their services by third parties. Such an approach would transform hosting providers from passive into active ones, eventually depriving them from the benefit of the safe harbour exemption from liability. The inconsistency holds true even though it has been mentioned by the Commission that such measures, when taken as part of the application of the terms of services of the online platform, would not render these service providers active ones, in particular when they process large volumes of material through automatic means. Furthermore, Article 15 of the ECD expressly prohibits Member States from imposing on intermediaries monitoring obligations of a general nature which is also seriously compromised with the new obligation upon intermediaries. The coherence and consistency of this new liability framework is thus highly questionable. The article argues that intermediaries are no longer subject to a conditional liability, but instead fall within the ambit of an organisational liability regime, whereby liability depends on the structure adopted by the undertaking in relation to the diverse types of content. The following addresses three categories of illegal content which have become the subject of legislative attention at an EU level as part of the DSM, namely copyright infringing, harmful (hate speech and content harmful to children) and misleading content.

The Regulation of Online Reviews in European Consumer Law

Most consumers consult online reviews before entering a contractual relation. Online reviews are written feedback or a rating left by consumers on a good or service they have experienced. Online review mechanisms are designed and controlled by online platforms. From a legal perspective, online reviews can be perceived as pre-contractual information: they tackle information asymmetries between businesses and consumers and they shape consumers’ contractual will. However, online reviews are often unreliable: they are not representative of all consumers’ opinions, they can be vitiated by biases or they can be faked in order to increase a business’ reputation. These issues can be detrimental to consumer protection, since online reviews can mislead consumers and hinder their trust in the market. Additionally, these issues raise questions regarding the recent role of online platforms as gateways to consumer information, their responsibility in assuring online review mechanisms’ reliability and how prepared European consumer legislation is for the platform economy. Even though the European legislator has not explicitly regulated online reviews so far, it has demonstrated interest in doing so, having had characterized unreliable online reviews as a threat to consumer protection. Furthermore, the regulation of contractual information has been one of the European Union’s main concerns in consumer law, which means that the existing regulatory framework can be applicable to online reviews. This article explores online reviews’ relevance for private law by determining to what extent existing European consumer Directives apply to them, focusing particularly the E-Commerce Directive and the Unfair Commercial Practices Directive.

Unfair Commercial Practices, Spam and Fake Online Reviews. The Italian Perspective and Comparative Profiles

This paper starts its analysis from Legislative Decree number 146/2007 which incorporated Directive 2005/29/EC into the Italian Consumer Code. This Directive is about unfair commercial practices, useful in illustrating the phenomenon undertaken by unscrupulous businessmen against consumers. Ten years after the enforcement and entry of this legislation into Italian law, the balance is still not positive because consumers do not seem to be totally protected from the implementation of those devious entrepreneurial strategies designed to mislead the consumer from taking an informed decision of a commercial nature. More specifically, in my study I analyze the lack of legislation, above all on unfair trade practices classified as spam and fake reviews (otherwise known as ‘opinion spam’) against which Italian private law (different from other legal systems) is totally insufficient to protect consumers.

Consumers contracting with other consumers in the sharing economy: fill in the gaps in the legal framework or switch to the blockchain model?

Numerous legal provisions were enacted at an EU level in order to protect consumers contracting with professionals, especially in a digital environment (see, in particular, the protection measures provided by directive 2011/83/EU on consumer rights; directive 2005/29/EC on unfair commercial practices; directive 2000/31/EC on electronic commerce, etc.). With the development of the web 2.0 and the so-called “sharing economy”, consumers are now entitled to easily conclude agreements with other consumers through intermediation platforms. EU Consumer Acquis shall normally be applicable to the relationship between the platform and each of the peers (the seller or the provider on one hand, and the buyer or the recipient on the other hand), with the exclusion of C2C relationships. The objective of this paper is to highlight the potential issues and gaps in the context of consumer protection (lack of information, warranty issues, no right of withdrawal, etc.), resulting from the fact that C2C agreements are normally out of scope of the EU Consumer Acquis (and only governed by the traditional contract law). Some propositions de lege ferenda will also be made, in order to ensure a higher level of consumer protection (with additional legal duties prescribed for the intermediaries, for instance). Blockchain technology and smart contracts shall also be taken into account, since they should normally give rise to a “disintermediation” process. It should however be assessed whether or not consumer protection will benefit from this disintermediation.

Digital Markets, Rules of Conduct and Liability of Online Intermediaries—Analysis of Two Case Studies: Unfair Commercial Practices and Trade Secrets Infringement

Digital Markets, Rules of Conduct and Liability of Online Intermediaries—Analysis of Two Case Studies: Unfair Commercial Practices and Trade Secrets Infringement

Restrictions on Privacy and Exploitation in the Digital Economy: A Competition Law Perspective

The recent controversy on the intersection of competition law with the protection of privacy, following the emergence of big data and social media is a major challenge for competition authorities worldwide. Recent technological progress in data analytics may greatly facilitate the prediction of personality traits and attributes from even a few digital records of human behaviour. There are different perspectives globally as to the level of personal data protection and the role competition law may play in this context, hence the discussion of integrating such concerns in competition law enforcement may be premature for some jurisdictions. However, a market failure approach may provide common intellectual foundations for the assessment of harms associated to the exploitation of personal data, even when the specific legal system does not formally recognize a fundamental right to privacy. The paper presents a model of market failure based on a requirement provision in the acquisition of personal information from users of other products/services. We establish the economic harm from the market failure and the requirement using the traditional competition law toolbox and focusing more on situations in which the restriction on privacy may be analysed as a form of exploitation. Eliminating the requirement and the market failure by creating a functioning market for the sale of personal information is imperative. This emphasis on exploitation does not mean that restrictions on privacy may not result from exclusionary practices. However, we analyse these in a separate study. Besides the traditional analysis of the requirement and market failure, we note that there are typically informational asymmetries between the data controller and the data subject. The latter may not be aware that his data was harvested, in the first place, or that the data will be processed by the data controller for a different purpose, or shared and sold to third parties. The exploitation of personal data may also result from economic coercion, on the basis of resource-dependence or lock-in of the user, the latter having no other choice, in order to enjoy the consumption of a specific service provided by the data controller or its ecosystem, than to consent to the harvesting and use of his data. A behavioural approach would also emphasise the possible internalities (demand-side market failures) coming out of the bounded rationality, or the fact that people do not internalise all consequences of their actions and face limits in their cognitive capacities. The paper also addresses the way competition law could engage with exploitative conduct leading to privacy harm, both for ex ante and ex post enforcement. With regard to ex ante enforcement, the paper explores how privacy concerns may be integrated in merger control as part of the definition of product quality, the harm in question being merely exploitative (the possibility the data aggregation provides to the merged entity to exploit (personal) data in ways that harm directly consumers), rather than exclusionary (harming consumers by enabling the merged entity to marginalise a rival with better privacy policies), which is examined in a separate paper. With regard to ex post enforcement, the paper explores different theories of harm that may give rise to competition law concerns and suggest specific tests for their assessment. In particular, we analyse old and new exploitative theories of harm relating to excessive data extraction, personalised pricing, unfair commercial practices and trading conditions, exploitative requirement contracts, behavioural manipulation. We are in favour of collective action to restore the conditions of a well-functioning data market and the report makes a number of policy recommendations.

How to Sanction a Breach of Information Duties of the Consumer Rights Directive?

Traders must provide information to consumers according to the Consumer, Rights Directive in case they conclude a distance contract, an off-premises contract, or a contract in another manner. It is the task of the Member States to sanction breaches of those information duties. This article classifies the information duties on basis of their objective, namely supporting decision-making, enabling storing information, and facilitating the exercise of rights. Subsequently, it addresses the question of how German, English, and Dutch law provide for sanctions in case traders breach those information duties. This article shows that the way breaches are being sanctioned in Germany, England, and the Netherlands, inter alia depends on choices that have been made regarding the legal consequences of unfair commercial practices and the enforcement of consumer law. It further shows that the actual use of sanctions depends on the question: ‘who can apply a sanction and what does this actor has to prove?’