Principales actores del conflicto interno colombiano

We have seen from above that legal certainty for businesses means foremost that a clear set of standards is set, so that they know which rules they have to comply with. At the same time, however, it would be unrealistic to think that businesses will accept any degree of consumer protection. What level will be acceptable will depend on an assessment of costs and profits: it is likely that a lower level of protection will decrease costs (e.g. costs of uncertainty of transaction during the cooling-off period) and will therefore be more attractive for businesses. Even if legal certainty can be ensured through any standard as long as businesses know which it is, their preference may still be for a lower level of protection. Moreover, a lower level of consumer protection could open up new possibilities for consumer sales between traders and consumers in different MS. The problem of online offers being refused to consumers in some MS would so be addressed. In other words, availability of products would be paid by consumers through the concession of part of their       

108 Idem FN 108 

109 De Hoon, Machteld W. and Mak, Vanessa, (2011) Consumer Empowerment Strategies ‐ A Rights‐Oriented  Approach Versus a Needs‐Oriented Approach. Zeitschrift fur Europaisches Privatrecht (ZEuP) 3/2011; Tilburg  Law School Research Paper No. 018/2011. 

protection. This approach would deprive consumers of certain rights, and on the other hand would offer them a more competitive market, with lower prices and increased choice.

On the contrary, assuming that 14-day cooling-off period ensures a high level of consumer protection, it may be less attractive for businesses from a cost perspective.

Accordingly, when cooling-off periods are too long they may encourage moral hazard, implying that consumers take advantage of certain obligations imposed on firms, and raise transaction costs as a result of delay and uncertainty of transactions. A compulsory cooling-off period can have further adverse effects. For example, a cooling-cooling-off period with severe sanctions on non-compliance and high costs associated with it have the effect that businesses exit the market, which leads to a reduction of supply and higher prices.

Therefore, a high level of consumer protection eventually works in the detriment of consumers. One solution to counteract moral hazard and opportunistic behavior would be to make consumers conscious of the price of added protection, therefore making them pay for exercising the right of withdrawal. However, this is also counterproductive for businesses as they will lose buyers in favor of offline selling channels. However, one positive and educative scenario would be to use the new rules as a marketing tool (‘your European rights are safeguarded with us’) and so attract more consumers. If the increase in purchases supersedes the additional costs derived from the added protection provided, this could be a lucrative solution for businesses.

Most sellers that are active in online trading offer rights of withdrawal on a voluntarily basis, raising the level of consumer protection higher than the CRD requires.

Some of the businesses take the full costs of withdrawal upon themselves, usually in domestic sales. The motive behind this practice is, of course, to entice the consumer to order goods in the first place. If an e-seller of shoes did not offer a withdrawal rights, hardly anybody would order goods from his website, even if they were sold at low prices.

The same consideration applies to clothes and other goods that must fit. For certain type of goods sold on the internet, rights of withdrawal would be offered and agreed on a voluntary basis without the need to have a mandatory right of withdrawal. We can draw the conclusion that in certain cases sellers do not need a mandatory rule to take into account consumer’s interest and they come up with new levels of consumer protection in order to

offer buyers strong incentives to purchase. In the end consumers are the engine of every business.

However, the EU legislator is not willing to let the market competition develop new strategies on withdrawal rights, but chooses to expand its oversight of consumer markets.

The Commission has repeatedly emphasized the idea that online commerce is unlikely to grow in popularity in Europe unless consumer confidence can be enhanced, and the most obvious means of achieving that end is greater regulation of B2C transactions to protect consumers. By mandating a high level of protection, EU online consumer contract law forces all businesses to internalize high compliance costs and constraints the range of possible innovation in marketing channels.

In conclusion, businesses may benefit from greater legal certainty and lower compliance costs due to a uniform and harmonised right of withdrawal, but, on the other side, they lose ground on possible innovation in marketing channels.

CONCLUSIONS

Recently, a new consumer rights directive was adopted which purports to fully harmonize the right of withdrawal for consumers and information obligations for businesses in distance selling environment as a means to boost e-commerce and online shopping in the internal market. Full harmonization is a new technique used by the European legislator to establish a set of uniform rights for businesses and consumers in order to break the barriers to online trade in the internal market. The 21th century goal of a virtual internal market for the benefit of European consumers and businesses is a re-adaptation to nowadays conditions of a previous internal market goal, the only difference between the two goals is of methodology. It seems that minimum harmonization is not delivering to its expectations; therefore a decision was taken to switch to maximum harmonization. Due to divergent views of Member States regarding harmonization and its impact on cross-border trade, legislators reached the conclusion that full harmonization would be feasible and would bring about legal certainty and simplification if applied solely to clear, cross-cutting issues such as definitions, right of withdrawal and information obligations in distance selling; for the other areas dealt with by the proposal on consumer rights directive full harmonization would not bring about more cross-border trade and would even create more legal uncertainty mainly due to the interplay with general contract law and existing case law. Therefore, the new directive introduces a 14-day right of withdrawal from online contracts.

Is the choice for a uniform period a correct decision? Is there a good balance between the interests of both consumers and businesses while maintaining a high level of protection? In this respect, one should recognize that there is no one-size-fits-all cooling-off period. On the one hand, the cooling-off should be sufficiently long for the consumer to be able to exercise his right of withdrawal. On the other hand, the cooling-off period should not unreasonably burden the trader with uncertainty as to the finality of the transaction. The interests of both parties need to be reconciled. We can conclude that the uniform duration of the cooling-off period from online contracts can be deemed successful. In certain cases, the cooling-off period might be a too friendly consumer rule.

The legal analysis conducted in this paper shows that legal fragmentation can be eliminated by introducing uniform rights at EU level. The harmonization process can benefit both consumers and businesses of a clear and easily enforceable set of rights, on condition that both parties internalize the legal changes. However, these actions of harmonization increase legal certainty only to a limited extent, as they represent small changes in the consumer acquis. These small steps might constitute the beginning of the Consumer Law Europeanization. In all likelihood, the harmonization of cooling-off period from electronic contracts has the potential to cut down on existing transaction costs in cross-border online contracting, implying a direct gain for economy and society.

The introduction of a right of withdrawal in online selling is justified by two reasons: to protect consumers from market failures caused by asymmetric information in distance selling and to promote the online internal market by giving consumers an incentive to conclude transactions online. The development of the online internal market depends on consumers feeling confident shopping online cross-borders. The adoption of the new directive, and in particular the harmonization of cooling-off periods, will be a useful tool to simplify the existing legislation, but, it will probably have only a limited impact on the confidence of European consumers, that may continue to be undermined by other factors, such as legal factors (legal security), cultural factors (national preferences), economic and social factors. Consumer confidence calls for consumer empowerment. The key principle is to empower consumers to participate actively in the market and make it work for them in a way which protects their rights and economic interests by dealing with the problems consumers encounter when shopping cross-borders. Empowering consumers requires a broader focus than rights alone, namely means to solve the most common and urgent problems of consumers in the different MS.

The CRD aims at leveling the playing field for businesses, therefore enabling them to comply with national legislation requirements and save up on administrative burdens to adapt their legal contract rules. Businesses may benefit from greater legal certainty and lower compliance costs due to a uniform and harmonised right of withdrawal, but, on the other side, they lose ground on possible innovation related to withdrawal in marketing channels.

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