Talking Shop February 2024
Written By
Welcome to the February 2024 edition of Talking Shop.
This edition includes sustainability-related updates from across Europe and the UAE; an exploration of the continuing rise of consumer litigation in the EU; practical tips for online platforms navigating tax transparency rules; and much more. You can also find links to listen to the latest episode of our podcast, Retail Therapy.
Please get in touch or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.
In this edition:
Case Update
Various Eateries Trading Ltd v Allianz Insurance Plc: Appeals dismissed in COVID-19 Business Interruption losses claim
In an important judgment for insurance policyholders, the Court of Appeal recently dismissed an appeal and cross-appeal against a High Court judgment in a COVID-19 business interruption ("BI") claim. This is significant for all policyholders and insurers, most notably those utilizing the Marsh Resilience wording for BI coverage. That said, while the judgment is specific to the Resilience language, the Court of Appeal’s dismissal of the possibility to aggregate COVID-19 BI losses to events in Wuhan or the arrival of COVID-19 in the UK provides clarity to a contentious issue which might be pertinent to other BI policies.
Competition
The Netherlands: ACM’s Valentine’s Day letter to Bol.com
On 14 February 2024, the Netherlands Authority for Consumers and Markets (ACM) announced that it launched an investigation into Bol.com, one of the largest online retail platforms in the Netherlands. The investigation of the ACM fits perfectly in the ACM’s agenda for 2024: promoting a fair and digital economy on the basis of the rules for consumer protection and competition. Therefore we cannot rule out that the ACM may also investigate other digital platforms operating in the Netherlands.
Consumer Law
Europe: The continuing rise of consumer litigation in the EU and the impact of increased digital regulation
In the face of emerging digital development, the EU has decided to place itself as a frontrunner in the governance and regulation of digital technologies. EU legislators have either enacted or are proposing several new laws, which in addition to their impact on EU businesses and consumers will also have extra-territorial effect outside of the EU. In addition to regulating the digital space which we now all occupy, these new laws will also provide consumers with the right to litigate to hold these businesses accountable for any breaches, so it is important for businesses to understand what their obligations will be and ensure they are compliant.
Product Compliance
Europe: Product compliance for consumer products powered by AI
The EU adopted the General Product Safety Regulation (GPSR) in June 2023 to address risks associated with AI-related products. The GPSR aims to seamlessly integrate AI technology into existing product safety frame-works. With the growing prevalence of AI technologies, particularly in consumer products, this article provides an outline of the new requirements that, while not exclusively AI-specific, significantly affect AI-powered consumer products.
Regulatory
Italy: Enhancement, promotion and protection of ‘made in Italy’ - the Italian Government draft becomes law
Law No. 206 of December 27, 2023, providing “Organic Provisions for the enhancement, promotion and protection of ‘made in Italy’” entered into force on January 11, 2024. From the introduction of a national day to the establishment of a national fund aimed at the growth and relaunch of strategic national supply chains, from the granting of the 3i Voucher for innovative start-ups and micro-companies to the protection of ‘historical’ trademarks: the new legislation brings significant innovations with the intention of supporting the development and modernisation of production processes and functional activities for the growth of the qualitative excellence of ‘made in Italy’.
Sustainability
Europe: Directive to empower consumers for the green transition has been adopted
Following the European Parliament adoption of the Empowering Consumers Directive in early 2024, the European Council has also adopted the Directive on 20 February 2024. Pending only the publication, member states will have 24 months to transpose it and 30 months to apply it. We therefore expect the application of these new rules in the second half of 2026. The Directive will bring significant changes to environmental and social advertising.
UAE: Is guidance on green marketing and greenwashing coming?
Environmental and sustainability claims are increasingly becoming part and parcel of marketing campaigns globally. As consumers become more conscious of their individual environmental impact, there is an expectation for brands and businesses to follow suit. As a result, there has been significant development in regulating the use of green claims, particularly in Europe and Australia. With extensive renewable energy initiatives taking place across the country, the rise of sustainable cities and last year (2023) declared the Year of Sustainability, it is evident that sustainability is at the forefront of development in the UAE. It is therefore surprising that in comparison to other countries, the UAE still has some way to go in issuing detailed regulations or guidance on green marketing.
Tax
Europe: Five practical tips for online platforms to navigate and comply with DAC7 in the EU and DRR in the UK
DAC7 requires online platforms to register with, and collect, verify and report seller revenues and seller information to EU tax authorities under certain conditions. The first DAC7 deadline across the EU was 31 January 2024. The UK’s own version of these reporting rules (UK DRR) went live on 1 January 2024, with first UK reports to be provided to HMRC by 31 January 2025. Our Tax team provides five practical tips for internationally operating online platforms looking to navigate and comply with these requirements.
News & Events
Retail Therapy Podcast: Retail Mergers & Aspirations
2023 was the worst year for M&A generally since 2013, but the retail and consumer sectors were more resilient than others. In the second episode of Retail Therapy, Nick O'Donnell, Nicola Conway and Sana Malik discuss why this was the case, and why there is reason for continued optimism for a busy M&A market and more activity in those sectors in 2024.
In our podcast, Retail Therapy, we give a Bird’s eye insight into the trends, challenges and opportunities in the Retail & Consumer industry. We discuss a wide range of topics, drawing on Bird & Bird’s extensive knowledge of the Retail & Consumer sector, across our global network of lawyers. We’ll also be interviewing industry experts and thought leaders to share their valuable perspectives into the world of retail.
Webinar: Trade Secrets
6 March, 10.00 GMT
Join us as we discuss a case study highlighting the most common issues when enforcing trade secret protection: What do you do when you discover a former employee has stolen trade secrets from your company, and leveraged this for the new employer. This business-focused webinar will demonstrate real-life examples that have delayed or at times even prevented successful trade secrets claims. Trade secret theft can be extremely damaging to your business, and it's important that you take decisive steps to stop it before it's too late.
LinkedIn Live: UK Online Safety
14 March, 15.30 GMT
With the passing of the Digital Service Act (DSA) application deadline on 17 February 2024, some platforms will be breathing a sigh of relief at the end of the foundational phase of their compliance efforts. There is, however, no time to pause for those with UK users. With wide extra-territorial scope, substantial fines of up to 10x global annual turnover, and the imminent close of Ofcom’s first consultation under the Online Safety Act, now is the time to start preparing for UK online safety compliance. There are some substantial differences to the DSA, in particular, many more services will need to take efforts where they permit user generated content or offer wider user-to-user functionality.
In-person Event: UK Employment Law Update 2024
19 March, 16.00 GMT, London
As 2024 unfolds, we have already witnessed political, economic, and societal changes that are influencing the employment law agenda in the UK. To stay informed, join our London Employment Team for an insightful overview of key developments. These include the importance of post-termination restrictions and key considerations when undertaking internal investigations, along with emerging hot topics such as exploring neurodiversity in the workplace and holiday pay.
While this event primarily caters to in-house counsel and HR professionals, it is also relevant to anyone responsible for people-related matters within their organisation.
