Omnibus directive and implications for consumers

Omnibus directive and implications for consumers

The Omnibus Directive, transposed in Spain by Royal Decree-Law 24/2021 of 2 November 2021, aims, among other issues, to enhance commercial transparency to improve consumer protection and to establish solid mechanisms to combat unfair practices, ensuring redress in the event that consumers suffer an incident.

WHAT NEW OBLIGATIONS MUST MARKETPLACES COMPLY WITH? 

If you have a shop or Marketplace, you must inform consumers in a pre-contractual manner and in a clear, understandable and appropriate way, in a specific section of the website or app that is easily and directly accessible, about: 

• Name, business name and full address of the trader responsible for the commercial offer and, where applicable, name, business name and full address of the trader on whose behalf he is acting.
• The essential characteristics of the good or service in a form appropriate to its nature and the means of communication used.
• The full final price, including taxes, itemising, where appropriate, the amount of any increases or discounts applied to the offer and any additional charges passed on to the consumer or user.
• The main parameters that determine the ranking of the submitted offers obtained as a result of searches made by customers, and the relative importance of those parameters compared to other parameters. 
• If the seller is a business or not, depending on what he has told you. 
• If the seller is not a business, he must expressly state that consumer protection legislation does not apply to the order.
• The payment procedures and the time limits for delivery and performance of the contract, if they deviate from the requirements of professional diligence, meaning the level of competence and special care to be expected of a businessman in accordance with honest market practice.
• Where applicable, existence of the right of withdrawal. Please note that if the trader has not provided the consumer or user with the information on the right of withdrawal as set out in Article 97(1)(j), the withdrawal period shall end twelve months after the date of expiry of the initial withdrawal period, determined in accordance with Article 104.
• Where applicable, how the obligations related to the order are allocated between the seller and the marketplace provider, without prejudice to any liability they may have under other non-consumer law. 
• The guarantees and insurances offered by the marketplace provider. 
• The methods of dispute resolution and the role played by the marketplace provider in dispute resolution. 

HOW IS THE SYSTEM OF PENALTIES MODIFIED? 

As was the case before the transposition of the Directive, consumer offences will be subject to the corresponding administrative penalties, after the appropriate proceedings have been opened, without prejudice to any civil, criminal or other types of liability that may be applicable.

In this regard, the imposition of penalties must ensure, in all circumstances, that the commission of an infringement is not more beneficial to the offending party than non-compliance with the rules infringed. To this end, three levels are established: 

• Minor infringements: a fine of between €150 and €10,000, which may be exceeded by up to two to four times the illicit benefit obtained. 
• Serious infringements: a fine of between €10,001 and €100,000, which may be exceeded by up to four to six times the illicit benefit obtained.
• Very serious infringements: a fine of between 100,001 and 1,000,000 euros, which may be exceeded by up to six to eight times the illicit benefit obtained.
  

HOW DOES THIS AFFECT THE INDICATION OF PRICES AND REVIEWS AND COMMENTS? 

■ The obligation remains in place, where items are offered at a reduced price, to clearly indicate, on each item, the previous price together with the reduced price, the previous price being understood to be the lowest price that would have been applied to identical products in the previous thirty days. 

■ It is obliged to inform, where applicable, that prices are set on a personalized basis according to automated decisions. 

On the other hand, the RD points out that conduct contrary to the provisions on information in the media to promote a product, reviews and searches, is also qualified as unfair.

In this regard, it should be noted that the concept of media encompasses a broad meaning of the term that would include, for example, social networks, when they act as platforms for advertising, product placement and consumer opinions.

Therefore, where consumer ratings or opinions are provided, there is an obligation (and burden of proof) to disclose whether the published reviews have been made by consumers who have actually used or purchased the good or service, and how the reviews are processed.