Modernisation of information requirements for consumers on online tourism services market by Tatjana Josipović

o where applicable, how the obligations related to the contract are shared between the third party and the provider of the online marketplace.122 This information is important for the consumer, because in the law of the Union, the contract between the provider of the online marketplace and the third party is not regulated. Contractual relations between the third party (e.g. the owner of the flat rented for a short-stay accommodation) and the provider of the online marketplace are regulated by the applicable national contract law. As a rule, the consumer will not know how the third party and the provider of the online marketplace have regulated their mutual relations. It is also possible that the consumer will not know which body of law is applicable for the contractual relation between the provider and the third party. Therefore, it is useful that the provider informs the consumer which third party's obligations towards the consumer will be fulfilled by the provider and in what capacity. The consumer's decision on his or her selection from among the offered services may depend on such information. The new CRD rules on additional specific information requirements for providers of online marketplaces are at the same time the rules of minimal harmonisation. The Member States may also introduce additional information requirements for providers of online marketplaces.123 It is only important that these are proportionate and non-discriminatory provisions justified on grounds of consumer protection and without prejudice to the Directive on Electronic Commerce. However, minimal harmonisation rules and additional information requirements may lead to differences in consumer protection in terms of the level of information received on online marketplaces. Because of the fact that mostly cross-border distance contracts are involved, it seems that better effects of consumer protection could be achieved by maximum harmonisation. New additional specific information requirements for contracts concluded on online marketplaces will undoubtedly contribute to a better level of information obtained by the consumers when entering into distance contracts on online marketplaces. A special step forward has taken place in connection with distance contracts mutually made by consumers via online marketplaces. Although in such cases, a consumer who has accepted an offer does not enjoy the protection under EU consumer protection rules, the possibility to make an informed decision on the selection of an offer on the online marketplace on the basis of additional information exists. Hence, just like with new, unfair commercial practices, we can speak of a significant progress in ensuring the transparency of the online market, including the one on online tourism services. However, just like with unfair commercial practice, enforcement takes place in a decentralised manner, at the level of Member States.124 Therefore, positive effects of the introduction of new information requirements for distance contracts concluded on online marketplaces largely depend on the efficiency of enforcement carried out by the competent bodies of the Member States. Indeed, national rules on the public law implementation of sanctions against the violation of information duties by the providers of online marketplaces play a particularly important role.125 The efficiency of sanctions will also be of special importance particularly in situations where violations of information duties are not considered as unfair commercial practices and where it is not possible to implement sanctions laid down in the UCPD. The introduction of special rules on information requirements for distance contracts concluded on online marketplaces in the Consumer Rights Directive has revealed some new questions regarding the codification of legal relations between the parties when entering into such contracts. In practice, these doubts may diminish the positive effects of the modernisation of the rules on information requirements for distance contracts. In the CRD, distance contracts are considered as consumer contracts concluded between consumers and traders with the exclusive use of the means of distance communication and without the simultaneous physical presence of the trader and the consumer.126 It is fully justified that such a way of entering into contracts requires particular protection of consumer rights provided for in the CRD. The new Article 6a CRD also lays down specific 122 See Art. 6a (d) CRD. However, in Art. 6a (d) CRD, it is expressly laid down that such information is without prejudice to any responsibility that the provider of the online marketplace or the third-party trader has in relation to the contract under other Union or national laws. 123 Art. 6a/2 CRD. 124 Arts 23, 24. 125 Omnibus Directive has not changed the concept of decentralised enforcement and imposition of penalties applicable to infringement of the national provision adopted pursuant to the CRD. By Omnibus Directive, the system of penalties is only strengthened by the introduction of non-exhaustive and indicative criteria for the imposition of penalties. See the new Art. 24 CRD replaced by Art. 4 (13), Omnibus Directive. 126 See Art. 2 (7) CRD.

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