Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (Text with EEA relevance)

CHAPTER I

INTRODUCTORY PROVISIONS

Article 1

Subject matter

This Regulation lays down the conditions under which competent authorities, having been designated by their Member States as responsible for the enforcement of Union laws that protect consumers’ interests, cooperate and coordinate actions with each other and with the Commission, in order to enforce compliance with those laws and to ensure the smooth functioning of the internal market, and in order to enhance the protection of consumers’ economic interests.

Article 2

Scope

Article 3

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘Union laws that protect consumers’ interests’ means the Regulations and the Directives, as transposed into the internal legal order of the Member States, that are listed in the Annex hereto;

(2) ‘intra-Union infringement’ means any act or omission contrary to Union laws that protect consumers’ interests that has done, does or is likely to do harm to the collective interests of consumers residing in a Member State other than the Member State in which: (a) the act or omission originated or took place; (b) the trader responsible for the act or omission is established; or (c) evidence or assets of the trader pertaining to the act or omission are to be found;

(3) ‘widespread infringement’ means: (a) any act or omission contrary to Union laws that protect consumers’ interests that has done, does or is likely to do harm to the collective interests of consumers residing in at least two Member States other than the Member State in which: (i) the act or omission originated or took place; (ii) the trader responsible for the act or omission is established; or (iii) evidence or assets of the trader pertaining to the act or omission are to be found; or (b) any acts or omissions contrary to Union laws that protect consumers interests that have done, do or are likely to do harm to the collective interests of consumers and that have common features, including the same unlawful practice, the same interest being infringed and that are occurring concurrently, committed by the same trader, in at least three Member States;

(4) ‘widespread infringement with a Union dimension’ means a widespread infringement that has done, does or is likely to do harm to the collective interests of consumers in at least two-thirds of the Member States, accounting, together, for at least two-thirds of the population of the Union;

(5) ‘infringements covered by this Regulation’ means intra-Union infringements, widespread infringements and widespread infringements with a Union dimension;

(6) ‘competent authority’ means any public authority established either at national, regional or local level and designated by a Member State as responsible for enforcing the Union laws that protect consumers’ interests;

(7) ‘single liaison office’ means the public authority designated by a Member State as responsible for coordinating the application of this Regulation within that Member State;

(8) ‘designated body’ means a body having a legitimate interest in the cessation or prohibition of infringements of the Union laws that protect consumers’ interests which is designated by a Member State and instructed by a competent authority for the purpose of gathering the necessary information and to take the necessary enforcement measures available to that body under national law in order to bring about the cessation or prohibition of the infringement, and which is acting on behalf of that competent authority;

(9) ‘applicant authority’ means the competent authority that makes a request for mutual assistance;

(10) ‘requested authority’ means the competent authority that receives a request for mutual assistance;

(11) ‘trader’ means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession;

(12) ‘consumer’ means any natural person who is acting for purposes which are outside his trade, business, craft or profession;

(13) ‘consumer complaint’ means a statement, supported by reasonable evidence, that a trader has committed, is committing, or is likely to commit, an infringement of the Union laws that protect consumers’ interests;

(14) ‘harm to collective interests of consumers’ means actual or potential harm to the interests of a number of consumers that are affected by intra-Union infringements, by widespread infringements or by widespread infringements with a Union dimension;

(15) ‘online interface’ means any software, including a website, part of a website or an application, that is operated by or on behalf of a trader, and which serves to give consumers access to the trader’s goods or services;

(16) ‘sweeps’ means concerted investigations of consumer markets through simultaneous coordinated control actions to check compliance with, or to detect infringements of, Union laws that protect consumers’ interests.

Article 4

Notification of limitation periods

Each single liaison office shall notify the Commission of the limitation periods that are in place in its own Member State and that apply to enforcement measures referred to in Article 9(4). The Commission shall summarise the notified limitation periods and shall make that summary available to the competent authorities.

CHAPTER II

COMPETENT AUTHORITIES AND THEIR POWERS

Article 5

Competent authorities and single liaison offices

Article 6

Cooperation for the application of this Regulation within Member States

Article 7

Role of designated bodies

The instructing authority shall continue to be obliged to gather the necessary information or to take the necessary enforcement measures if:

(a) the designated body fails to obtain the necessary information or to bring about the cessation or prohibition of the infringement covered by this Regulation without delay; or

(b) the competent authorities concerned by an infringement covered by this Regulation do not agree that the designated body may be instructed pursuant to paragraph 1.

Article 8

Information and lists

Each Member State shall, without delay, communicate to the Commission the following information and any changes thereto:

(a) the identities and contact details of the competent authorities, of the single liaison office, of the designated bodies and of the entities issuing external alerts pursuant to Article 27(1); and

(b) information about the organisation, powers and responsibilities of the competent authorities.

Article 9

Minimum powers of competent authorities

Competent authorities shall have at least the following investigation powers:

(a) the power of access to any relevant documents, data or information related to an infringement covered by this Regulation, in any form or format and irrespective of their storage medium, or the place where, they are stored;

(b) the power to require any public authority, body or agency within their Member State or any natural person or legal person to provide any relevant information, data or documents, in any form or format and irrespective of their storage medium, or the place where they are stored, for the purposes of establishing whether an infringement covered by this Regulation has occurred or is occurring, and for the purposes of establishing the details of such infringement, including tracing financial and data flows, ascertaining the identity of persons involved in financial and data flows, and ascertaining bank account information and ownership of websites;

(c) the power to carry out necessary on-site inspections, including the power to enter any premises, land or means of transport that the trader concerned by the inspection uses for purposes related to his trade, business, craft or profession, or to request other public authorities to do so, in order to examine, seise, take or obtain copies of information, data or documents, irrespective of their storage medium; the power to seise any information, data or documents for a necessary period and to the extent necessary for the inspection; the power to request any representative or member of the staff of the trader concerned by the inspection to give explanations of facts, information, data or documents relating to the subject matter of the inspection and to record the answers;

(d) the power to purchase goods or services as test purchases, where necessary, under a cover identity, in order to detect infringements covered by this Regulation and to obtain evidence, including the power to inspect, observe, study, disassemble or test goods or services.

Competent authorities shall have at least the following enforcement powers:

(a) the power to adopt interim measures to avoid the risk of serious harm to the collective interests of consumers;

(b) the power to seek to obtain or to accept commitments from the trader responsible for the infringement covered by this Regulation to cease that infringement;

(c) the power to receive from the trader, on the trader’s initiative, additional remedial commitments for the benefit of consumers that have been affected by the alleged infringement covered by this Regulation, or, where appropriate, to seek to obtain commitments from the trader to offer adequate remedies to the consumers that have been affected by that infringement;

(d) where applicable, the power to inform, by appropriate means, consumers that claim that they have suffered harm as a consequence of an infringement covered by this Regulation about how to seek compensation under national law;

(e) the power to order in writing the cessation of infringements covered by this Regulation by the trader;

(f) the power to bring about the cessation or the prohibition of infringements covered by this Regulation;

(g) where no other effective means are available to bring about the cessation or the prohibition of the infringement covered by this Regulation and in order to avoid the risk of serious harm to the collective interests of consumers: (i) the power to remove content or to restrict access to an online interface or to order the explicit display of a warning to consumers when they access an online interface; (ii) the power to order a hosting service provider to remove, disable or restrict access to an online interface; or (iii) where appropriate, the power to order domain registries or registrars to delete a fully qualified domain name and to allow the competent authority concerned to register it; including by requesting a third party or other public authority to implement such measures;

(h) the power to impose penalties, such as fines or periodic penalty payments, for infringements covered by this Regulation and for the failure to comply with any decision, order, interim measure, trader’s commitment or other measure adopted pursuant to this Regulation.

The penalties referred to in point (h) shall be effective, proportionate and dissuasive, in accordance with the requirements of Union laws that protect consumers’ interests. In particular, due regard shall be given, as appropriate, to the nature, gravity and duration of the infringement in question.

Article 10

Exercise of minimum powers

The powers set out in Article 9 shall be exercised either:

(a) directly by competent authorities under their own authority;

(b) where appropriate, by recourse to other competent authorities or other public authorities;

(c) by instructing designated bodies, if applicable; or

(d) by application to courts competent to grant the necessary decision, including, where appropriate, by appeal, if the application to grant the necessary decision is not successful.

CHAPTER III

MUTUAL ASSISTANCE MECHANISM

Article 11

Requests for information

Article 12

Requests for enforcement measures

The requested authority shall regularly inform the applicant authority about the steps and measures taken and the steps and measures that it intends to take. The requested authority shall use the electronic database provided for in Article 35 to notify without delay the applicant authority, the competent authorities of other Member States and the Commission of the measures taken and the effect of those measures on the intra-Union infringement, including the following:

(a) whether interim measures have been imposed;

(b) whether the infringement has ceased;

(c) which measures have been adopted, and whether those measures have been implemented;

(d) the extent to which consumers affected by the alleged infringement have been offered remedial commitments.

Article 13

Procedure for requests for mutual assistance

Article 14

Refusal to comply with a request for mutual assistance

A requested authority may refuse to comply with a request for information under Article 11 if one or more of the following applies:

(a) following a consultation with the applicant authority, it appears that the information requested is not needed by the applicant authority to establish whether an intra-Union infringement has occurred or is occurring, or to establish whether there is a reasonable suspicion that it may occur;

(b) the applicant authority does not agree that the information is subject to the rules on confidentiality and on professional and commercial secrecy laid down in Article 33;

(c) criminal investigations or judicial proceedings have already been initiated against the same trader in respect of the same intra-Union infringement before the judicial authorities in the Member State of the requested authority or of the applicant authority.

A requested authority may refuse to comply with a request for enforcement measures under Article 12 if, having consulted with the applicant authority, one or more of the following applies:

(a) criminal investigations or judicial proceedings have already been initiated, or there is a judgment, a court settlement or a judicial order in respect of the same intra-Union infringement and against the same trader before the judicial authorities in the Member State of the requested authority;

(b) the exercise of the necessary enforcement powers has already been initiated, or an administrative decision has already been adopted in respect of the same intra-Union infringement and against the same trader in the Member State of the requested authority in order to bring about the swift and effective cessation or prohibition of the intra-Union infringement;

(c) following an appropriate investigation, the requested authority concludes that no intra-Union infringement has occurred;

(d) the requested authority concludes that the applicant authority has not provided the information that is necessary in accordance with Article 13(1);

(e) the requested authority has accepted commitments proposed by the trader to cease the intra-Union infringement within a set time limit and that time limit has not yet passed.

However, the requested authority shall comply with the request for enforcement measures under Article 12 if the trader fails to implement accepted commitments within the time limit referred to in point (e) of the first subparagraph.

CHAPTER IV

COORDINATED INVESTIGATION AND ENFORCEMENT MECHANISMS FOR WIDESPREAD INFRINGEMENTS AND FOR WIDESPREAD INFRINGEMENTS WITH A UNION DIMENSION

Article 15

Procedure for decisions amongst Member States

For matters covered by this Chapter, the competent authorities concerned shall act by consensus.

Article 16

General principles of cooperation

Article 17

Launch of coordinated action and designation of the coordinator

Article 18

Reasons for declining to take part in the coordinated action

A competent authority may decline to take part in a coordinated action for any of the following reasons:

(a) in respect of the same trader, a criminal investigation or judicial proceedings have already been initiated, a judgement has been given, or a court settlement has been reached, concerning the same infringement in that competent authority’s Member State;

(b) the exercise of the necessary enforcement powers has already been initiated before the issuing of an alert referred to in Article 17(3), or an administrative decision has been adopted against the same trader in respect of the same infringement in that competent authority’s Member State in order to bring about the swift and effective cessation or prohibition of the widespread infringement or widespread infringement with a Union dimension;

(c) following an appropriate investigation, it is apparent that the actual or potential impact of the alleged widespread infringement or widespread infringement with a Union dimension in that competent authority’s Member State is negligible and therefore no enforcement measures need to be adopted by that competent authority;

(d) the relevant widespread infringement or the widespread infringement with a Union dimension has not occurred in that competent authority’s Member State and therefore no enforcement measures need to be adopted by that competent authority;

(e) the competent authority has accepted commitments proposed by the trader responsible for the widespread infringement or widespread infringement with a Union dimension to cease that infringement in that competent authority’s Member State and those commitments have been implemented, and therefore no enforcement measures need to be adopted by that competent authority.

Article 19

Investigation measures in coordinated actions

Article 20

Commitments in coordinated actions

Article 21

Enforcement measures in coordinated actions

Where appropriate, they shall impose penalties, such as fines or periodic penalty payments, on the trader responsible for the widespread infringement or the widespread infringement with a Union dimension. The competent authorities may receive from the trader, on the trader’s initiative, additional remedial commitments for the benefit of consumers that have been affected by the alleged widespread infringement or the alleged widespread infringement with a Union dimension, or, where appropriate, may seek to obtain commitments from the trader to offer adequate remedies to the consumers that have been affected by that infringement.

Enforcement measures are in particular appropriate where:

(a) an immediate enforcement action is necessary to bring about the swift and effective cessation or prohibition of the infringement;

(b) it is unlikely that the infringement will cease as a result of the commitments proposed by the trader responsible for the infringement;

(c) the trader responsible for the infringement has not proposed commitments before the expiry of a time limit set by the competent authorities concerned;

(d) the commitments that the trader responsible for the infringement proposed are insufficient to ensure the cessation of the infringement or, where appropriate, to provide a remedy to consumers harmed by the infringement; or

(e) the trader responsible for the infringement has failed to implement the commitments to cease the infringement or, where appropriate, to provide a remedy to consumers harmed by the infringement, within the time limit referred to in Article 20(3).