Breaking barriers toward greater cross-border e-commerce and a new retail economy Nick Holland, Partner, Field Fisher Waterhouse LLP Arndt Soret, Director, Legal Services Europe, Home Away Inc Paul Drake, Legal Director, European Expansion and Cross-Border Trade, Ebay Marketplaces 1
57
Embed
Breaking barriers toward greater cross-border e … barriers toward greater cross-border e-commerce and a new retail economy Nick Holland, Partner, Field Fisher Waterhouse …
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Breaking barriers toward greater
cross-border e-commerce and a new
retail economy
Nick Holland, Partner, Field Fisher Waterhouse LLP
Arndt Soret, Director, Legal Services Europe, Home
Away Inc
Paul Drake, Legal Director, European Expansion and
Cross-Border Trade, Ebay Marketplaces
1
Update on the Data Privacy Regulation,
Consumer Rights Directive, Payment
Services Directive, VAT Changes in the
B2C Arena and Intermediary Liability
Nick Holland – Partner, Field Fisher Waterhouse
2
The EU Directive on Consumer Rights (2011/83/EC)
Replaces, as of 13 June 2014:
• 97/7/EC on the protection of consumers in respect of distance
contracts;
• 85/577/EEC to protect the consumer in respect of contracts
negotiated away from business premises.
Directives remaining in force:
• 1999/44/EC on certain aspects of the sale of consumer goods
and associated guarantees; and
• 93/13/EEC on unfair terms in consumer contracts.
3
Commission’s aims:
• Achieve a real business-to-consumer (B2C) internal
market.
• Strike a balance between a high level of consumer
protection and the competitiveness of businesses.
• Achieve a simplified, accessible and transparent
rights regime for consumers
• Ensure common rules for businesses enabling ease
of trade across the European Union.
4
Why implement the new Directive?
Consolidation and simplification - existing consumer
protection laws are fragmented across several EU
Directives:
• the Distance Selling Directive;
• the Doorstep Selling Directive;
• the Unfair Contract Terms Directive; and
• the Sale of Consumer Goods and Guarantees
Directive.
5
Key changes affecting distance selling:
• Consumers will have a 14-day cooling off period in which
to cancel the distance contract.
• Traders will have to refund the consumer within 14 days of
receiving notice of cancellation (currently 30 days).
• Traders will have to provide consumers with detailed
information on prices, delivery charges, payment
methods, whether the consumer is to bear the cost of
returning the goods, and for bulky items, an estimate of
the return costs.
• Limited right to surcharge for credit and debit card
purchases
6
Key changes cont…
• Online “order buttons” will have to be clearly labelled
so that the consumer understands that, by clicking,
he or she is entering into a payment obligation –
without such labelling the consumer will not be bound
by the obligation.
• Default settings (e.g. pre-ticked options) for anything
that results in the consumer incurring additional
charges over and above the price for the main
contractual obligation, such as a premium delivery
service are not permissible.
7
Key changes affecting digital content:
• Traders to provide information about the content’s compatibility
with hardware and software, as well as inform the consumer if
the content is subject to any digital rights management
technology.
• No consumer right to cancel a digital download purchase once
the download has begun provided that (i) this has been made
clear to the customer and (ii) the customer has given their
explicit acknowledgement.
• Mandatory pre-contract information to be provided in a “durable
medium” within a reasonable time following conclusion of the
contract (rather than before the download begins).
8
Commission’s objectives:
• An integrated and efficient European payments
market.
• A level playing field for payment services providers
• high standards of consumer protection.
• To encourage lower prices for payments.
• To facilitate the emergence of common technical
standards and interoperability.
9
Why change from PSD?
• Commission acknowledges PSD was generally fit for
purpose, however:
• implementation inconsistent between Member States
resulting in fragmented payment services market
along national borders;
• payment services market very dynamic;
• PSD2 intends to expand the types of organisations
that are regulated to better protect consumers and
homogenise implementation.
10
PSD2: changes to scope – extending the
regulatory sphere • E-comms platforms can no longer rely on the “commercial
agent” exemption to avoid regulation where they act for both
buyer and seller.
• “Digital services” exemption tightened – new rules set limits on
the levels of m-payments (€50 per transaction and €200 per
month) for the exemption to apply but the type of device used
will be irrelevant.
• “Limited network” exemption redrawn to bring large scale or high
volume payments or wide ranges of products or services into
the regulated arena.
• 3rd party providers offering payment initiation services and
account information platforms will be regulated to encourage
new low-cost internet payment solutions.
11
Changes to scope cont…
• “One-leg transactions” (where the payment service
provider of either the payer or payee is outside EEA) will
be required to comply with transparency and supply of
information to user regulations – transactions in any
currency will be covered.
• Removal of ATM exemption for operators of independent
ATMs - this incentivised higher consumer fees.
• The definition of “payment services” aims to be
technologically neutral and allow for the development of
new systems in an attempt to future proof PSD2.
12
IF Regulations - Controls on interchange fees
and surcharging for card-based transactions
Dual approach – PSD2 and IF Regulations
Interchange fees:
• Capped at 0.2% for most debit cards and 0.3% for most credit cards
(except for 3-party schemes such as AMEX and commercial cards)
• No impact in UK on debit cards as fees already below limit but up to 1/5
reduction on credit card interchange fees.
• Capping to be phased in – to cross border payments as soon as PSD2
and IF Regulations implemented, then applying to domestic card
payments after 2 years.
13
Interchange Fees and Surcharging
• Merchants will be able to surcharge, or refuse to
accept, cards not subject to the cap on interchange
fees – not to exceed real cost of using card.
• Limits to surcharging already imposed by CRD.
• Non-transparent pricing methods by payment service
providers will be prohibited, full information on costs
must be given to users in advance.
• Commission to adopt rules to ensure controls on
interchange fees and surcharges are not
circumvented. 14
VAT changes in the BTE B2C arena
• Currently – where a supplier of broadcasting,
telecommunications and e-services (BTE) is based in
the EU and the customer is a non-taxable person
(B2C), the supply is taxed at the place where the
supplier is established.
• 1 January 2015 – supply of BTE services to non-
taxable persons will be taxable in the Member State
where the customer is established, has his
permanent address or usually resides.
15
Impact
• EU and non-EU BTE suppliers will need to determine where
customers are established or usually reside to charge the
applicable VAT rate for that jurisdiction and account for it
accordingly – irrespective of whether the supplier is established
or registered there for VAT purposes, OR use Mini One-Stop
Shop scheme (MOSS).
• Removal of incentive for non-EU based suppliers to set up a
permanent establishment within the EU, in a low-rate
jurisdiction, so as to be able to charge lower VAT rates on intra-
EU B2C supplies.
• End of the “99p download”?
16
Businesses will need to consider:
• Whether supplies are made on B2C basis
• How to determine the location of customers
• How VAT will be charged and correctly accounted for
• The impact of additional VAT on profit margins and
whether to pass such increases on to customers or
absorb them;
• The impact of increasing prices on attractive pricing
models – such as the 99p download
• Whether to relocate from low-tax jurisdictions
17
EU Data Protection Law Reform
Main aims: – improve harmonisation
– improve interoperability
– reduce bureaucracy
– improve individuals rights
– enhance organisational accountability
– strengthen regulators’ powers
Key changes: – Power to issue fines up to greater of
100million EUROS or 5% of annual worldwide turnover;
– Territorial scope extended to organisations outside of EU processing data related to individuals within the EU;
– Additional definitions added including ‘encrypted data’ and ‘pseudonymous data’;
– Consent must be freely given;
– Measures introduced as a result of the PRISM revelations including a right for data subjects to know whether their personal data has been disclosed to a public authority at the authority’s request;
– Requirement for appointment of Data Protection Officers;
– Much, much more!
18
EU Data Protection Reform: Proposed Timeline
• January 2012 – EU Commission publishes proposal for Draft Data Protection Regulation
EU Data Protection Reform: Proposed Timeline • 23-24 January 2014 – Informal JHA Council in Athens discusses proposals and announces an
agreement on reform is possible before end of 2014
• 12 March 2014 – the European Parliament adopted in plenary the proposal for the Data Protection Regulation – which includes the amendments originally put forward by the LIBE Committee (led by Jan Philip Albrecht) in its report from October 2013
• April 2014 – European Parliament is expected to adopt the proposals in its first reading in the Plenary session
• Separately the Council of Ministers (comprising a Justice Minister for each of the 28 Member States)
are currently discussing the Regulation in order to put forward their own adopted text
• Only once the Council has completed this process this can tripartite discussions between the EU
Commission (which introduced the original draft Regulation text), the Parliament and the Council take
place in order to agree a final text of the Regulation
• It is hopeful that the Council can finish their review by June 2014 (before the EU Summer recess
commences), however this is uncertain due to disagreement between Member States on certain
provisions of the draft Regulation
• Spring/Summer 2014 - official negotiations of the text between Parliament / Council
• June 2014 – EU Parliament elections
• 31 December 2014 – Parliament / Council aiming to adopt Regulation by this date
• If they tripartite discussions do not begin until November 2014, the final text may not be formally adopted under the tripartite discussions until 2015, in which case the Regulation may not come into force until after 2017
• 2015/2016 – Aiming to fully implement Regulation into Member State law (current draft includes a 2 year grace period) by this date 20
The E-Commerce Directive and Intermediary Liability