History and Future of European Consumer Policy
- History of European Consumer Policy
- Competences for Consumer Legislation
- Consequences of Member States' failure to implement directives
- Recent Developments in European Contract and Consumer Law
One of the general aims of the Treaties of Rome
was the constant improvement of the living and working conditions of the people. However, the
Treaty Establishing the European Economic Community of 25 March 1957 made only five incidental references to consumers
(Art. 39, 40, 85(3), 86, 92(2), which correspond to Art. 33(3), 34, 81, 82, 87 of the Nice Treaty). There was a general presumption
that the consumer would stand to benefit from a deregulated, integrated and more efficient common market.
In the 1970s and 1980s the political atmosphere slowly became conducive to consumer-related measures, starting with the
Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community for a consumer protection and information policy (OJ 1975 C 92/1),
which provides for five basic rights:
- the right to protection of health and safety,
- the right to protection of economic interests,
- the right of redress,
- the right to information and education,
- the right of representation (right to be heard).
In 1985, the first consumer protection directives, the Directives on Product Liability and
Doorstep Selling were enacted.
Finally, a specific competence for consumer protection was introduced in the Maastricht Treaty
(Title XI, Art. 129a = Title XIV, Art. 153 of the Nice Treaty).
In 1995, a Consumer Policy Directorate was established within the European Commission. Today, it is the
Health and Consumer Protection Directorate General ('DG SANCO');
The Directorate has two Commissioners: Meglena Kuneva (Bulgaria) is the European Commissioner for Consumers, whereas Commissioner Markos Kyprianou (Cyprus) is responsible for Health.
II. Competences for Consumer Legislation
Initially, the consumer directives were based upon Art. 100 of the EEC Treaty, which corresponds to Art. 94 of the Nice Treaty and required unanimity amongst the Member States.
Later on, such initiatives were based upon (what is now) Art. 95 EC, and this practice continued after a specific competence
for consumer legislation was introduced in the Maastricht Treaty (currently Art. 153 EC). However, Art. 95 EC requires that the measures taken
have as their object the establishment and functioning of the internal market. As the ECJ clarified in the case
Tobacco Advertising,
'the measures referred to in Article 100a(1) [Art. 95(1)] of the Treaty are intended to improve the conditions for the establishment and functioning of the internal market.
To construe that article as meaning that it vests in the Community legislature a general power to regulate the internal market would not only be contrary to the express
wording of [Art. 3(1)(c), 14 EC], but would also be incompatible with the principle embodied in [Art. 5 EC] that the powers of the Community are limited to those specifically conferred to it'
Thus, any measure based upon Art. 95 EC must actually contribute to the functioning of the internal market, and it is certainly insufficient
to simply assert such an effect in the directive's recitals. There is some debate whether minimum harmonization measures can possibly
contribute to the functioning of the internal market, as they fail to completely harmonize the law of the Member States. However, the Court's decision in María Victoria Gonzáles v Medicina Asturiana
(para. 27) would seem to imply that maximum harmonization is not necessarily required in order to comply with Art. 95(1) EC.
As for Art. 153 EC, its paragraph 5 explicitly allows Member States to provide for more stringent protective measures than Community law.
III. Consequences of Member States' failure to implement directives
A Member State's failure to implement a consumer protection directive allows the Commission to institute proceedings under Art. 226 EC which
may eventually lead to a fine imposed by the ECJ under Art. 228 EC.
Further, the European Court of Justice held in
Francovich that a citizen
may claim compensation if he or she suffered a loss as a result of a Member State's failure to implement a rule of law intended to confer rights on individuals, inter alia, the claimant. The Court argued:
'The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened
if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State
can be held responsible.'
Finally, following case law of the European Court of Justice (cf. i.e.
Ratti), a directive may have direct effect, provided that the stipulated time period
for its implementation has expired and the directive's provision is sufficiently clear, precise and unconditional
- a notion which is somewhat surprising in view of Art. 249 EC. The Court concedes that directives are only vertically directly effective, not horizontally.
This means that a party may invoke its rights flowing from a directive against the Member State who has failed to properly implement the directive,
but not against another private party. A good example of the Court's refusal to allow for a horizontal effect with respect to consumer directives is the case
Paola Faccini Dori,
in which the Court argued that giving directives a horizontal effect 'would be to recognize a power in the Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations.'
Nonetheless, the Court has repeatedly stressed that the courts of the Member States are under an obligation to interpret national law in every way possible to achieve the results envisaged by a Directive, cf. the Court's reasoning in the decision Dori:
‘It must also be borne in mind that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under [Article 10] of the Treaty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. [W]hen applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of [Article 249] of the Treaty.’
IV. Recent Developments in European Contract and Consumer Law
In 2001, the Commission published a Communication on european contract law,
discussing possible venues on future regulation of European contract law:
- To leave the solution of any identified problems to the market (= to do nothing)
- To promote the development of non-binding common contract law principles
- To review and improve existing EC legislation in the area of contract law to make it more coherent or to adapt it to cover situations not foreseen at the time of adoption.
- To adopt a new instrument at EC level (development of a European Contract Code as optional or binding instrument).
In 2003, the follow-up communication A more coherent European contract law - an action plan
was published, which suggested the following measures:
- to increase the coherence of the EC acquis in the area of contract law
- to promote the elaboration of EU-wide general contract terms (= Development of a Common Frame of Reference
- to examine further whether an optional instrument (= a code) would be helpful
In 2004, the Commission published European Contract Law and the revision of the acquis: the way forward
- improving the quality of the acquis with the help the Common Frame of Reference (yet to be elaborated); for the Second Progress Report on the CFR
click here.
A Draft Common Frame of Reference prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group) is available in print.
- promoting EU-wide standard terms and conditions
The Commission has since
The Commission's Consumer Policy Strategy for the years 2007 to 2013 is termed
Empowering consumers, enhancing their welfare, effectively protecting them.
For an overview of the academic groups and initiatives working on proposals for a European Civil Code or a revision of the acquis communautaire click
here.
Reading suggestion: Reiner Schulze, The Acquis Communautaire and the Development of European Contract Law
>
|
