CONSUMER PROTECTION IN INTERNATIONAL RELATIONS

Transcription

1 CONSUMER PROTECTION IN INTERNATIONAL RELATIONS I General Framework Q1. Constitutional rules There are no constitutional provisions on consumer s protection in Norwegian law. Q2. International and supranational rules There are a lot of provisions on consumer protection that that have international origin. Due to the EEA agreement 1, several EU directives are incorporated into Norwegian law. In Art 7 of the EEA Agreement it is stated: Acts referred to or contained in the Annexes to this Agreement or in decisions of the EEA Joint Committee shall be binding upon the Contracting Parties and be, or be made, part of their internal legal order as follows : (a) an act corresponding to an EEC regulation shall as such be made part of the internal legal order of the Contracting Parties; (b) an act corresponding to an EEC directive shall leave to the authorities of the Contracting Parties the choice of form and method of implementation. Due to Art 72 of the EEA Agreement, Annex XIX of the Agreement contains provisions on consumer protection. Prices of products offered to consumers: Decision No 113/98, EEA Supplement No 46, Entered into force Directive 98/6 EC. Norwegian Act No 12 5 th of March 2004 (Competition Act) 23. Misleading advertising Decision No 53/98 and EEA Supplement No 6, Entered into force Directive 84/450 EEC, later amended in directive 97/55 EC. Norwegian Act No 47 of 16 th of June 1972 (The Marketing Control Act) 2 (5). Contracts negotiated away from business premises, see Protection of consumers in distance contracts Decision No 15/98, EEA Supplement No 42. Entered into force Directive No 97/7 EC. Norwegian Act No 46 of 25 th of June 1999 (Financial Agreements Act), No 105 of 21 st of December 2000 (Distance Selling), No 106 of 21 st of December 2000 (Marketing Control Act) and Act No 31 of 14 th of April 2000 (Act on Personal Information). 1 Agreement between the Community, the EC Member States and the EFTA States from 17th of March 1993, (OJ No L 1, )

2 2 Consumer credit Decision No 122/98 and EEA Supplement No 50, Entered into force Now replaced by Decision No 16/2009 and EEA Supplement No 16, Will have effect from Entered into force Directives 87/102 EEC as amended in Directive 97/8 EC. Norwegian Act No 82 of 21 st of June 1985 (Credit Purchase Act). Products which appear to be other than they are, endanger the health and safety of consumers. Directive 87/357 EEC. Norwegian Act No 79 from 11 th of June 1976 (Product Control Act). Package travel, package holidays and package tours. Directive 90/314/EEC. Norwegian Act No 57 of 25 th of August 1995 (Package Tours Act). Unfair terms in consumer contracts Directive 93/13 EEC. Norwegian Act No 47 of 16 th of June 1972 (The Marketing Control Act) and Act on Agreements No. 4 of 31 May 1918, later amended by Law No. 1 of 6 January Timeshare, long-term holiday products, resale and exchange contracts. Decision No 18/95, EEA Supplement No 13, Entered into force Replaced by Decision No 86/2009 EEA Supplement No is pending. This entering into force is pending. Directive 94/47 EC. Norwegian 37 of 13 th of June 1997 (Timeshare Act). Cross-border credit transfer Decision No 1/98, EEA Supplement No 42, Entered into force To be deleted with effect from by Decision No 114/2008, EEA Supplement No 79, This entering into force is pending. Injunctions for the protection of consumers interest Decision No 121/1999, EEA Supplement No 60, Entered into force Later amendments. Directive 98/27 EC. Norwegian Act No. 100 of 21 December 2001 relating to amendments to the Marketing Control Act.

3 3 Sale of consumer goods and associated guarantees Decision No 12/2000, EEA Supplement No 9, Entered into force Directive 1999/44 EC. Norwegian Act No. 34 of 21 June 2002 on Sale of Consumer Goods and Act No. 30 of 21 June 2002 amending the Marketing Control Act No. 47 of 16 June Cooperation between national authorities responsible for the enforcement of consumer protection law Decision No 92/2006, EEA Supplement No 52, Entered into force Cooperation between national authorities responsible for the enforcement of consumer protection laws as regarded mutual assistance Decision No 88/2008, EEA Supplement No 64, Entered into force Unfair business-to-consumer commercial practices Decision No 93/2006, EEA Supplement No 52, Entered into force pending. Credit agreements for consumers Decision No 16/2009, EEA Supplement No 16, Entered into force Payment systems, in particular the relationship between the cardholder and card issuer Indication of the prices of foodstuffs and non-food products Codes of practice in distance selling

4 4 Labelling of products in the interest of consumer Prices of products prepacked in pre-established quantities Consumer education in primary and secondary school Consumer policy in the other common policies Consumer safety Consumer redress Consumer participation in standadization Out-of-court settlement of consumer disputes Decision No 13/2000, EEA Supplement No 20, Entered into force Out-of-courts bodies involved in the consensual resolution of consumer disputes Decision No 160/2001, EEA Supplement No 13, Entered into force Pre-contractual information by lenders offering home-loans Decision No 84/2003, EEA Supplement No 51, Entered into force

5 5 II Jurisdiction and judgement enforcement Q3 Does your legal system contain specific provisions on jurisdiction regarded to international consumer s transactions? In Norwegian law, there are special provisions concerning jurisdiction regarded consumers transactions in cases that are connected to the EEA area. In these cases, the Lugano Convention Art applies to consumer contracts. There is a new version of the Lugano Convention dated , and this entered into force There is also a specific provision in the Norwegian Civil Procedural Act (7) to be regarded. In addition, there are some provisions limiting the consumer s ability to enter jurisdiction clauses, see for example the Timeshare Act 4 and the Credit Purchase Act 2 (2). Q3a What is the scope of application of such rules? (i) The case must be considered to be of a civil or commercial matter, see Art 1. (ii) The case must have connection to parties that come from a state which is a member of the Lugano Convention. This means in practice that at least one of the parties must come from Iceland, Lichtenstein, Norway or from an EU Member state. Art 1 no 3 gives the definition of the term State bound by this Convention meaning any State that is a Contracting Party to this Convention or a Member State of the European Community. It may also mean the European Community. (iii) One of the parties must be a consumer. Due to the Lugano Convention Art 15, a contract is a consumer contract if it is for a purpose which can be regarded as being outside his trade or profession. This is a definition which is parallel to the Brussels I Regulation 44/2001 Art 15. In general, the term consumer contract is defined as a contract concluded by a person for a purpose that is regarded to be outside his trade or profession. See 2 Act No 90 of 17th of June 2005, in force from 1 st of January 2008.

6 6 for example the wording used in the Norwegian Consumer Sales Act Due to 1, The Consumer Sales Act apply to those sales where the seller is professional. This definition is based upon the Consumer Sales Directive. (iv) There is no definition of international consumer transaction or similar expression in the Lugano Convention or in other Norwegian legislation elsewhere. Q3b and c Are forum selection clauses for international consumers transactions allowed? How do these specific provisions on jurisdiction protect consumers? For those cases that are governed by the Lugano Convention (cases with a connection to the EEA area), a forum selection clause is allowed only within the limits of Art 17 of the Convention. The main rule, as stated in Art 16, is that a consumer may sue his/hers counterparty either in the state where the counterparty is domiciled, or in the state where the consumer is domiciled. A case against the consumer may only be filed in the state in which the consumer is domiciled. A forum selection clause that deviates from the main rule in Art 16 is only valid if it (i) has been entered into after the dispute has arisen, (ii) if it allows the consumer to bring proceedings in courts other than those indicated in Art 15-17, or (iii) the agreement is entered into when both parties at the time of conclusion of the contract are domiciled or habitually resident in the same state. For cases that fall outside the scope of the Lugano Convention (international transactions that a Norwegian consumers enters into with a party from a state outside the EEA area), there is a provision in the Norwegian Civil Procedure s Act 4-5 (7) cf 4-6 (3) to protect the consumer. It follows from 4-6 (3) that a forum selection clause that limits the possibility to go to court beyond that what is allowed due to 4-4 and 4-5, must be written. An agreement entered into before the dispute has arisen is not valid against the consumer. Due to 4-5 (7), a consumer can bring a case against the professional party at the place where the consumer is domiciled. The provisions in the Norwegian Civil Procedure s Act on forum selection clauses in consumer cases are less detailed than the provisions in the 3 Act No 34 of 21 st of June 2002.

7 7 Lugano Convention. The Civil Procedure s Act 4-5 (7) does not cover the situation where the consumer is sued by the other party. In these cases it follows from 4-4 that the consumer can be sued where the consumer is domiciled. In principle, the other party may also sue the consumer at the place of performance according to 4-5 (2), but there is an exception for disputes over money claim. As the consumer normally will be the party paying money, this means that the consumer will not be sued under the place of performanceprovision. Both the Lugano Convention Art 16 and the Norwegian Civil Procedure s Act protect the consumer by giving the consumer permission to go to court in the state where the consumer is domiciled. The provisions also protect the consumer by ensuring that the consumer does not have to accept to go to court in a state where the consumer is not domiciled if the other party files a proceeding against the consumer. Q3d Do these provisions include any particular reference to online consumer transactions? In that case, how do the rules concerning online consumers transactions depart from the rules relating to international consumers transactions? The provisions on protection of the consumers in connection to forum selection clauses do not expressly have any reference to online consumer transactions. Q3e and f How are these specific provisions construed by judges in your country? Please explain the judicial application of these provisions See Q15 for a list of relevant case law concerning international consumers protection. In general, the provisions of the Lugano Convention are interpreted by reference to the parallel provisions in the Brussels I Regulation (Reg. 44/2001). Q4 In the absence of such provision of jurisdiction on international consumers transactions, how are international consumer disputes settled in your country? In particular

8 8 a) Do general provisions of jurisdiction on international contracts apply? b) Are forum selection clauses allowed in international contracts in general? The specific rules on consumer protection will apply as far as they reach. For consumer transactions that fall outside the scope of the provisions, the general provisions on international contracts will apply. There are however protection rules in insurance cases and in disputes over individual employment contracts according to the Lugano Convention Art 8-14 and Art as well as in the Norwegian Civil Procedure s Act 4-5 (4) and (9), as well as a the general provision to protect the consumer regarding jurisdiction agreement in the Civil Procedure s Act 4-6 (3). Forum selection clauses are allowed in general under Norwegian law, see the Norwegian Civil Procedure s Act 4-6 (1) and the Lugano Convention Art 23. Q5 Does your legal system contain specific provisions or is there a practice for the recognition of foreign judgements in consumer matters? In particular: a) Is the jurisdiction of origin particularly scrutinized? b) Is the public policy (ordre public) often invoked? c) Please explain the judicial application of those provisions and practices. In cases that fall inside the scope of the Lugano Convention, there are provisions concerning both recognition and enforcement of judgements from a state in the EEA area (Member State of the Lugano Convention). These provisions deal with any judgement of civil or commercial matter, not particularly with judgements in consumer matters. See the Lugano Convention Art 32 and following. In cases that fall outside the Lugano Convention, there is stated in the Norwegian Act of Enforcement 4-1 and the Norwegian Civil Procedure s Act that a judgement from a foreign court will be recognized if this is established by an act or by an agreement with another state that Norway is bound by. There are some agreements between Norway other states, mostly bilateral agreements, about recognition and enforcement of judgements in

9 9 addition to the Lugano Convention. However, outside the EEA area (outside the scope of the Lugano Convention), the main rule is that a foreign judgement will not be recognized by a Norwegian court. Q6 When no such specific rules excist, what is the judicial practice in the matter of recognition and enforcement of foreign judgements in consumer matters? So far there is no court practice dealing with the question of recognition and enforcement of judgements in consumer matters under Norwegian law that fall outside the scope of the Lugano Convention. III Choice of Law Q7 Does your legal system contain specific rules on choice of law in international consumers transactions? In particular: a) Do these specific provisions permit choice of law clauses? b) How do these provisions protect consumers? c) Do these provisions include any particular reference to online consumer transactions? d) Please explain the judicial application of these provisions. There is a provision in the Norwegian Consumer Sales Act 3 (2) protecting the consumers in international sales contracts. This provision is implementing the Consumer Sales Directive Art 7 no 2. 4 In Financial Contracts or Financial Assignments involving an international consumer transaction, there is a provision in The Financial Contracts Act 3 that will protect the consumer. 5 This provision is created after the pattern in the 1980 Rome Convention, and 3 states that Norwegian Law will apply in a specific group of cases. There 4 5 Directive 1999/44 EC. Consumer Sales Act: Act No 34 from 21 st of June 2002, in force 1 st of July Act No 46 of 25th of June 1999, in force 1 st of July 2000

10 10 is also a provision protect the consumer in choice of law-questions in the Timeshare Act 5 and in the Act of Choice of Law in Insurance Agreements protecting the insured party. In Norwegian law there is, however, not a general rule protecting the consumer in international transactions. There is no parallel to the Rome I Regulation Art 6 in Norwegian Law. Q7a Do these specific provisions permit choice of law clauses? Due to The Consumer Sales Act 3 (2), choice of law clauses are permitted to a certain extent. The possibility to use choice of law clauses in international consumer sales differs a lot between those sales that are connected to the EEA area and those sales that do not have such a connection. If the sales contract has close connection to the EEA area, the choice of law agreement must not refer to law of a state outside the EEA area if this means that the consumer will have a weaker protection. It is however allowed to make a choice of law agreement referring to the law of a state outside the EEA area if the consumer achieves better protection. For sales contracts that do not have close connection to the EEA area, there is no specific rule protecting the consumer when it comes to choice of law agreements. The Financial Act 2 states that any contract that is detrimental to the consumer, is not allowed. For those contracts that fall within the protection rule in 3, Norwegian law will apply. Q7b How do these provisions protect consumers? For consumer sales with a connection to the EEA area, the Norwegian Consumer Sales Act ensures that the consumer has a level of protection that is similar to national consumer sales. This is not particularly well expressed in the wording of 3 (2), but according to the preparatory works of the rule, this is meant to be the case. 6 6 See Ot. prp. Nr. 44 ( ).

11 11 The Act on financial contracts and financial assignments 3 more expressly states that Norwegian law will apply to those financial agreements that fall inside the scope of the provision. In these cases, the consumer will be protected in accordance to the Norwegian Financial Contracts Act. Q7c Do these provisions include any particular reference to online consumer transactions? None of the above mentioned provisions have any particular reference to online consumer transactions. Q7d Please explain the judicial application of these provisions. In general there is not much court practice on consumer contracts. There is also very few cases dealing with choice of law in international consumer contracts. There is one court cases from the appellant court in connection to the Act on Choice of Law in International Sale of Goods, see RG 2004 s. 1593, but the focus is not particularly on consumer protection. Q8 In the absence of such specific provision, which law governs international consumer transactions in your country? In particular: a) Do general provisions on the law applicable to international contracts apply? b) Are choice of law clauses in international contracts allowed? Consumer contracts falling outside the scope of the protection provisions will be governed by general Norwegian private international law. There are not many written rules in private international law in Norway, so most of the cases involving choice of law will be decided upon due to court practice and under influence by legal literature. As the main rule, choice of law clauses are allowed in international contracts.

12 12 IV Alternative dispute resolution (ADR) Q9 Are international consumers disputes capable of being settled by arbitration? In particular: a) Are international consumers disputes arbitrable under your legal system? b) Please mention the case law, if any, dealing with international consumers transactions settled by arbitration Q9a) The Arbitration Act 7 applies both in national and international arbitration. I principle, consumer disputes may be settled by arbitration, but there are limitations as to arbitral agreements in consumer cases. These limits are stated in the Arbitration Act 11. Firstly, an arbitration agreement entered into before the dispute arose, it not binding towards the consumer. This will prevent the use of arbitration clauses in standard agreements towards consumers. Secondly, an arbitration agreement with a consumer needs to be created in a separate document that must be signed by both parties. It is permitted to enter an electronic agreement if this is done in a way that authenticates the agreement and ensures the content of the agreement. This second limitation is made under inspiration from German law. Thirdly, it is stated that a consumer that enters an arbitral court hearing without it being pointed out which consequences an arbitral court decision will have, the consumer may claim that the arbitral agreement is not binding. Q9b) There are no Supreme Court decisions on arbitration in consumer matters, but there s an appellant court case where 11 of the Arbitration Act is referred to: RG 2006 s (Borgarting Lagmannsrett, Appellant Court). This case is in Norwegian media referred to as the Mikel-case after the name of the football-player Mikel. Mikel, a Nigerian football-player, filed a law suit against his former employer, the Norwegian football- 7 Act No 25 of 14th of May 2004, in force 1 st of January 2005.

13 13 club Lyn Oslo. Mikel claimed that he no longer had any employment agreement with Lyn. Lyn in return, claimed that the case must be dismissed from the ordinary courts and treated by arbitration since there was an arbitral agreement between the parties. The Borgarting Appellant Court found that the case could be settled by the ordinary courts. The Appellant Court found that the dispute was concerning expiration of an employment contract. Due to previous Norwegian Supreme Court practice (Rt 1992 s. 593), he was not bounded by an arbitral agreement entered into before the dispute arose. This is built on the same grounds of protection as in the Arbitration Act 11. Q10 Does your legal system provide for any alternative method for any alternative dispute settlement applicable to international consumers transactions? Which kind of alternative method? In particular: a) Is that method just an option for the consumer or can a consumer be forced to use it? After having chosen the alternative method, does the consumer still have the right to seize a domestic court if such metod fails? b) Should this method be chosen before a dispute arises or after the dispute has arisen? c) Is a consumer allowed to seize domestic courts? d) Is this method entirely or mostly an online dispute resolution (ODR) method? In Norway, there are several complaint boards to solve disputes between a consumer and a professional party. There is for example a Board on Dispute concerning telephone bills, Board on Dispute concerning Package Tours, a Board on Dispute related to Electrical Home Appliances. More important complaint boards when it comes to international consumer transactions are the Consumer Disputes Commission, The Norwegian Banking Complaints Board and the Norwegian Bureau for Insurance Disputes. The Consumer Disputes Commission is a governmental Complaint Board with many similarities to a court, but it is an administrative body. The purpose of the Consumer Disputes Commission (FTU) is to provide fast, costless and reliable decisions in consumer disputes. The Commission shall consider the case on the basis of the written presentation, and the parties do not attend the meetings. The Commission may obtain supplementary

14 14 expert opinions, and summon experts to appear at the meetings of the Commission. In practice, however, this warrant is usually not applied by the Commission. The Consumer Disputes Commission can decide in cases that have such a connection to Norway, that the dispute can be tried before a Norwegian court. See The Norwegian Banking Complaints Board is a non-governmental complaint board. The Banking Complaint Board also deals with cases where a foreign financial institution has offered services to Norwegian consumers. See The Norwegian Bureau for Insurance Disputes NBI - is established due to an agreement by the Consumer Council of Norway, the Norwegian financial services association and the Confederation of Norwegian Enterprise. The purpose is to assist policyholders, third parties and others who are dissatisfied with the treatment or the compensation offered them by an insurance company. The insurance industry regards the ICB as qualified. Although the rulings are advisory they are usually followed by the insurance companies, not only in the case decided upon, but also in similar cases. Norway is a member of the ECC Network thru the EEA Agreement, See The ECC Network is set up to promote consumer confidence in cross-boarder purchases throughout the EEA by providing: - Information on national and European consumer rights; - Support in pursuing cross-border complaints; - Advise on out of court settlement procedures; and - Information on consumer concerns to relevant authorities, particularly the European Commission. All the complaint boards are optional to the consumer. The normal procedure is to try to solve the dispute by the complaint board before bringing it to court. The consumer will have the possibility to bring the case to the ordinary courts even if the case has been tried before a complaint board. The complaint boards may be chosen as a method for solving dispute even if the parties have not made an agreement about this in advance. This is a method that may be used after the dispute has arisen. The consumer will not waive his/hers right to seize the domestic courts.

15 15 The Complaint Boards are not mainly online dispute resolution methods (ODR). Q11 Is there in your legal system any specific procedure on consumer claims or particularly applicable to consumer claims (e.g., small claim procedures, small claims courts) available for international dispute settlements? Due to the Norwegian Procedural Act Chapter 10, there are special provisions regarding small claims procedure. There is no limitation as to international disputes as long as the case fall inside Norwegian jurisdiction. But there is a limit referring to the amount of the claim (must be less than NOK ,-). Small claims procedure is also out of question in cases that are treated under the provisions in Chapter 35 about class actions. Q12 Is there in your legal system any procedural tool (e.g. class actions) particularly available for national consumer disputes? The Norwegian Procedural Act Chapter 35 contains provisions on class actions. These provisions are rather new in Norwegian legal tradition 8. The provisions are not particularly created for international consumer disputes, but the rules will apply to international disputes that can be tried before a Norwegian court. 9 V Cooperation of authorities Q13 Is there in your legal system any authority vested with power to participate in consumer redress related to international disputes? In particular: a) Can this authority seek enforcement of domestic judgments abroad and of foreign judgments before local courts? b) Can this authority interact with foreign counterparties in order to obtain consumer redress? 8 9 The provisions are new in the Civil Procedure Act from 2005, in force from 1st of January This is stated in the preparatory works of the provisions of class action, see NOU 2001: 32 page 496.

16 16 Norway is a member of the ECC Network thru the EEA Agreement. The aim of the ECC-Net is to provide consumers with a wide range of services, from providing information on their rights to giving advice and assistance with their complaints and the resolution of disputes. There is however not a specific authority with any particular power in consumer cases about enforcement. VI Legal scholarship and legal education Q14 Please include a short bibliography of items concerning private international law on consumer protection in your legal system (listed by authors in alphabetic order). Bull, Henrik Konow, Berte-Elen R. Konow, Berte-Elen R. Krüger, Kai Krogh, Georg Philip Krogh, Georg Philip Lerheim, Tore Lenda, Peter Moss, Giuditta Cordero Norsk lovkommentar til Luganokonvensjonen Verneting og rettsvalg ved internasjonale forbrukerkjøp, in T. Frantzen/J. Giertsen/G.C. Moss: Rett og toleranse, Festskrift til Helge Thue, Bergen, Gyldendal Norsk Forlag AS (2007) Norsk lovkommentar til kjøpslovvalgsloven (intprkjl) Norsk lovkommentar til forbrukerkjøpsloven 3, 2. ledd Internett, jurisdiksjon og territoriell avgrensning, Lov & Data No 81, Oslo, Lovdata (2005) s. 24 Alternative tvisteløsningssystemer i forbrukersaker på Internett, Lov & Data No 73, Oslo, Lovdata (2003) s. 17 Forbrukarkontraktar inngått i utlandet, IUSEF nr. 29, Oslo, Universitetsforlaget (1998) Lovvalg ved elektronisk handel over landegrensene, Lov & Data nr 63, Oslo, Lovdata (2000) 15 Lovvalgsregler for internasjonale kontrakter: Tilsynelatende likheter og reelle forskjeller mellom europeiske og norske regler, Tidsskrift for rettsvitenskap (TfR), Oslo, Universitetsforlaget (2007) s. 679

17 17 Rognlien, Stein Torvund, Olav Tverberg, Arnulf Luganokonvensjonen, Norsk kommentarutgave, Internasjonal domsmyndighet i sivile saker, Oslo, Juridisk Forlag (1993) Forbrukerkjøpslovens anvendelse ved levering av digitale ytelser, Legal opinion for the Ministry of Justice, Oslo (2004 ), see er/rapporter/2004/forbrukerkjopslovens-anvendelse-vedleve.html?id= Forbrukerkjøpsloven med kommentarer, Oslo, Gyldendal Norsk Forlag AS (2008) s Q15 Please include a list of the relevant case law concerning international consumers protection (listed by dates in chronological order). Supreme Court decisions: Rt 2004 s Rt 2002 s. 199 Rt 2002 s. 82 Rt 2001 s. 848 Rt HR Lower court decisions RG 2006 s RG 2004 s RG 2004 s. 501 RG 2003 s. 918 RG 2002 s RG 2001 s RG 1999 s. 854

18 18 LB LB Consumer Complaint Board Decisions Case 2002/527 Case 1992/089 Q16 Is there in your country (or in your organization), any specific education program (in Universities or other institutions) totally or mostly devoted to international consumers transactions? It has not been found any education program totally or mostly devoted to international consumers transactions in Norway.