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CONSUMER PROTECTION IN THE EU

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CONSUMER
PROTECTION IN THE
EU
Marko Baretić, Ph.D
Civil Law Department
Faculty of Law in Zagreb
OUTLINE OF THE COURSE
пЃµ
Introduction to the Consumer Protection
•
•
•
•
пЃµ
Development
Main sources
Main principles
Basic features
Market regulation
• Product safety
• Regulation of trade practices
пЃµ
Contract Law issues
• General part (unfair contract terms, specific techniques of conclusion
of contract, warranties and associated guaranties)
• Specific contracts (consumer credit, touristic products)
пЃµ
Tort Law issues
• Liability for defective products
пЃµ
Procedural Law
• Protection of collective interests of consumers
• Alternative disputes resolution systems
CONSUMER PROTECTION IN THE
EU
пЃµ
Consumer protection policy develops
systematically over the last 30 years
• comprises of numerous measures aimed
at enhancing the position of consumer
at the single European market
• Consumer protection law – one of the
most important elements of the
Consumer protection policy
CONSTITUTIONAL BASIS OF THE
CONSUMER PROTECTION
пЃµ
The Treaty on establishing the
European Economic Community
(Rome Treaty)
• Incidental reference to consumers in the
context of agricultural policy and
competition policy
CONSTITUTIONAL BASIS OF THE
CONSUMER PROTECTION
пЃµ
Single European Act (1987)
• No major changes
• Inclusion of the Article 100a – new,
simplified decision making process
CONSTITUTIONAL BASIS OF THE
CONSUMER PROTECTION
пЃµ
Treaty on the European Union (1993)
• Separate heading of the Treaty (XI) and
separate article (129a) on consumer
protection
• Consumer protection becomes an official
policy of the EU
AMSTERDAM TREATY
Renumberation of the Treaty
пЃµ Article 129a becomes Article 153
пЃµ No substantial changes
пЃµ Explicit mentioning of the
“horizontal” nature of consumer
protection policy
пЃµ
NICE TREATY
пЃµ
No changes in comparison to the
Amsterdam Treaty
LISBON TREATY
Treaty on European Union and the
Treaty on the Functioning of the
European Union
 Article 12 TFEU– consumer
protection requirements shall be
taken into account in defining and
implementing other Union policies
and activities
пЃµ Article 169 TFEU (ex Article 153 of
the Treaty on Establishing the EC)
пЃµ
Article 169 TFEU
1. In order to promote the interests of consumers
and to ensure a high level of consumer
protection, the Union shall contribute to
protecting the health, safety and economic
interests of consumers, as well as to promoting
their right to information, education and to
organise themselves in order to safeguard their
interests.
2. The Union shall contribute to the attainment of
the objectives referred to in paragraph 1
through:
(a) measures adopted pursuant to Article 114 in the
context of the completion of the internal market;
(b) measures which support, supplement and monitor the
policy pursued by the Member States.
Article 169 TFEU
3. The European Parliament and the Council, acting
in accordance with the ordinary legislative
procedure and after consulting the Economic and
Social Committee, shall adopt the measures
referred to in paragraph 2(b).
4. Measures adopted pursuant to paragraph 3 shall
not prevent any Member State from maintaining
or introducing more stringent protective
measures. Such measures must be compatible
with the Treaties. The Commission shall be
notified of them.
CHARACTERISTICS OF THE
CONSUMER PROTECTION POLICY
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Aimed at protection of basic consumer rights:
health, economic interests, information,
education, representation.
Development within the completion of the
internal market (indirect policy)
An area of shared competence between the EU
and the MS’s
• The importance of the principle of subsidiarity and
proportionality
пЃµ
Concept of minimum protection (minimum
harmonisation)
DEVELOPMENT OF THE
CONSUMER PROTECTION LAW
Indirect development (harmonization
of national laws)
 “soft law” initiatives
 “negative law”
пЃµ
INDIRECT POLICY
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Development of the consumer protection
law on the basis of Article 100 of the
Rome Treaty through the “the
approximation of the provisions laid down
by law, regulation or administrative action
in Member States which have as their
object the establishing and functioning of
the internal market”
Mid 70es of the 20th century
After the completion of the transitional
period and establishing of the internal
market, the interest shifts to social issues,
like consumer protection
SOFT LAW
Development through resolutions –
non-binding rules
пЃµ Although non-binding, the
importance of the resolutions follows
from the fact:
пЃµ
• they express political position of the
institutions of the EU
• the CJEU often invokes resolutions as if
they were binding instruments
SOFT LAW
пЃµ
пЃµ
Council Resolution on preliminary
programme for a consumer protection and
information policy (1975)
Basic consumer rights enumerated:
•
•
•
•
•
the right
the right
the right
the right
the right
heard)
to
to
of
to
of
protection of health and safety
protection of economic interests
redress
information and education
representation (the right to be
SOFT LAW
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First resolution followed by the Resolutions
of 1981, 1986, 1989, 1992
First Action Plan launched in 1990 and
followed by AP’s 1991, 1993, 1998
Commission’s Consumer Policy Strategy
for 2002-2006 followed by Council’s
Resolution of 2002
Commission’s EC Consumer Policy
Strategy 2007-2013
NEGATIVE LAW
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Negative law – law that forbids action
hostile to cross-boarder trade
Removal of trade barriers (market
integration) as a form of indirect
consumer policy
Impact on consumers two folded
• Removal of national measures (legislation) if
detrimental to consumer’s choice
• Removal of national measures (legislation)
aimed at protection of (domestic) consumer if
they impede cross-boarder trade
пЃµ
Development through the court practice
NEGATIVE LAW
пЃµ
Removal of national measures detrimental to
consumer’s choice
• C 170/78 Commission v. United Kingdom (British
system of taxing alcoholic beverages)
• C 178/84 Commission v. Germany (German rules on
beer-making techniques)
пЃµ
Removal of national measures aimed at
protection of (domestic) consumers
• C-120/78 Rewe Zentrale v. Bundesmonopolverwaltung
fГјr Branntwein (Casis de Dijon) (minimum alcohol
requirement)
• Case 407/85 Drei Glocken v. USL Centro-Sud (Italian
pasta)
PRESENT STATE OF PLAY
Over 90 directives dealing with
consumer protection issues
пЃµ Since the CP represent a horizontal
policy – many directives in other
areas cover also CP issues
пЃµ Strong influence on legal orders of
the MS
пЃµ
PRESENT STATE OF PLAY
пЃµ
Directives in the field of consumer
protection regulate:
• technical standards aimed at protection
of consumers
• market conditions (especially
advertising)
• private law issues (especially contract
law)
пЃµ
indirect harmonisation of the private law
systems of the MS
CONSUMER ACQUIS
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Directive 2001/95/EEC on general product
safety
Directive 89/109/EEC on the approximation of
the laws of the Member States relating to
materials and articles intended to come into
contact with foodstuffs
Directive 2000/13/EC on the approximation of
the laws of the Member States relating to the
labelling, presentation and advertising of
foodstuff
Directive 98/6/EC on consumer protection in
the indication of the prices of products offered
to consumers
CONSUMER ACQUIS
Directive 2006/114/EC
concerning misleading and
comparative advertising
пЃµ Directive 2005/29/EC on unfair
commercial practices
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CONSUMER ACQUIS
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Directive 85/577/EEC to protect the consumer
in respect of contracts negotiated away from
business premises
Directive 97/7/EC on the protection of
consumers in respect of distance contracts
Directive 2002/65/EC concerning the distance
marketing of consumer financial services
Directive 2011/83/EU on consumer rights
Directive 93/13/EEC on unfair terms in consumer
contracts
Directive 1999/44/EC on certain aspects of the
sale of consumer goods and associated
guaranties
CONSUMER ACQUIS
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Directive 87/102/EEC for the approximation of the laws,
regulations and administrative provisions of the Member
States concerning consumer credit (amended by Directive
90/88/EC and Directive 98/7/EC)
Directive 2008/48/EC on credit agreements for consumers
Directive 90/314/EEC on package travel, package holidays
and package tours
Directive 2008/122/EC on the protection of consumers in
respect of certain aspects of timeshare, long-term holiday
product, resale and exchange contracts
Directive 85/374/EEC on the approximation of the laws,
regulations and administrative provisions of the Member
States concerning liability for defective products (amended
by the Directive 1999/34/EC).
Directive 98/27/EC on injunctions for the protection of
consumers’ interests
PRIVATE LAW ASPECTS OF
CONSUMER PROTECTION
Through the directives in the field of
consumer protection, EU has
influenced both public law and
private law orders of the MS’s
пЃµ The question of viability of
public/private law division
пЃµ
CONSUMER/TRADER
Consumer -any natural person who
acts on the market or concludes the
contract for the purposes which are
outside his business, trade or
profession !!!!!!!!!
 Trader – any natural or legal person
who acts on the market or concludes
the contract for the purposes relating
to his business, trade or
profession!!!!!!!!
пЃµ
CONSUMER CONTRACT
Business to Consumer (B2C)
пЃµ Business to Business (B2B)
пЃµ Consumer to Consumer (C2C)
пЃµ
CHARASTERISTICS OF THE
CONSUMER PROTECTION LAW
Not “European law”, but rather
“harmonised” law of the MS’s
 Regulation based on “rationae
personae” principle, rather than on
“rationae materiae” principle
пЃµ Vertical/horisontal approach
пЃµ Significantly changed legal orders of
the MS’s
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CHARACTERISTICS OF THE
CONSUMER PROTECTION LAW
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Information duty
Right to withdraw
Protection of collective interests of consumers
(Semi)strict nature of the consumer protection
rules
Wide range of essential elements of consumer
contract
Special PIL rules
Burden of proof
Concept of minimal protection
Alternative dispute settlement systems
INFORMATION DUTY
Information paradigm – “well
informed consumer shall be able to
protect himself efficiently”
пЃµ Both in pre-contractual and postcontractual stage
пЃµ
WITHDRAWAL RIGHT
пЃµ
Right provided by
• Door-to-door Directive
• Distance Sale Directive
• Distance Marketing of Financial Services
Directive
• Timeshare Directive
• Consumer Credit Directive
• Consumer Rights Directive
COLLECTIVE CONSUMER
PROTECTION
пЃµ
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Initially recognised only in few directives
Today Injunctions Directive extends this
type of protection to overall consumer
acquis
Protection of diffuse, collective interests of
the entire consumer population
Collectivistic v. individualistic protection
Preventive protection
Dilemma: court v. administrative
protection
LEGAL NATURE OF CONSUMER
PROTECTION RULES
Not ius strictum in a classical sense
пЃµ Rather (semi)strict rules
 Possible to contract out these rules –
but only in the interest of a
consumer
пЃµ Departure from the party autonomy
principle
пЃµ
WIDE RANGE OF ESSENTIAL
ELEMENTS IN CONSUMER
CONTRACT
Many directives provide wide range
of essential elements in consumer
contracts
пЃµ The problem of rational choice of
essential elements
пЃµ
SPECIAL PIL RULES
The consumer can not be deprived of
the protection provided for by law by
virtue of choice of law
пЃµ This rule does not entirely excludes
the possibility of contracting in
choice of law clauses
пЃµ
BURDEN OF PROOF
пЃµ
пЃµ
Burden of proof as to the existence/nonexistence of certain facts shifted to the
trader
This rule contained within:
• Distance Sale Directive
• Distance Marketing of Financial Services
Directive
• Unfair Commercial Practices Directive
ALTERNATIVE DISPUTE
SETLEMENT
European Union supports and
promotes alternative dispute
settlement systems
пЃµ Good examples:
пЃµ
• Mediation
• Ombutsmans in Nordic countries
• Office of Fair Trading in the UK
CHALLANGES TO THE CONSUMER
PROTECTION LAW
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Unsystematic approach
Inconsistency
“Black box” argument
Non-harmonised legal orders of the MS’s
Obsolescence of the consumer acquis
Complexity of the consumer acquis
UNSISTEMATIC APPROACH
“Pointilistic” approach in making
consumer protection regulation
пЃµ Consumer protection acquis not
based on common principles
пЃµ
INCONSISTANCY
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Inconsistency on two levels:
• Within the same directive
• between various directives
INCONSISTENCY
Different approaches/different
terminology in the same directive
пЃµ Simultaneous use of the term
“indemnity” and “compensation” in
the same directive
пЃµ
INCONSISTENCY
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пЃµ
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Example: the definition of “consumer”
consumer means any natural person who, in
contracts covered by this Directive, is acting for
purposes which are outside his trade,
business or profession (Unfair Terms in
Consumer Contracts Directive)
consumer means a natural person who, in
transactions covered by this Directive, is acting
for purposes which can be regarded as
outside his trade or profession (Door to door
Directive)
consumer is a person who agrees to take travel
package (Package Travel Directive)
INCONSISTENCY
пЃµ
пЃµ
пЃµ
пЃµ
Example of the definition of “trader”
Terms used: trader, seller, supplier
supplier means any natural or legal person who,
in contracts covered by this Directive, is acting
in his commercial or professional capacity
(Distance sale Directive)
seller or supplier means any natural or legal
person who, in contracts covered by this
Directive, is acting for purposes relating to
his trade, business or profession, whether
publicly owned or privately owned (Unfair Terms
Directive)
INCONSISTENCY
пЃµ
пЃµ
Different solutions for identical situations
Example: withdrawal period:
• 7 days (Door-to-door Directive)
• 10 day (Timeshare Directive)
• 14 days (Distance Marketing of Financial
Services Directive)
пЃµ
Problem of computation through “working
days” (distance contracts) and “calendar
days” (timeshare).
INCONSISTENCY
In specific situations two EU
instruments can be applicable which
produce conflicting results.
пЃµ Example: Doorstep Selling Directive
and Timeshare Directive
пЃµ
INCONSISTENCY
пЃµ
пЃµ
The use of abstract legal terms such as
“contract”, “damage”, “fulfilment/nonfulfilment” which are not defined at all
Certain terms defined in one directive, but
not in others
• Example: definition of damage in the Defective Products
Directive
• The same term not defined in Package Travel Directive
• The question of admissibility of analogy
INCONSISTENCY
Inconsistency as a consequence of
multiple language approach
пЃµ Example of Unfair Terms Directive
пЃµ
• Pre-formulated contracts
• Contrat d’ adhésion
• Contrato di adesione
“BLACK BOX” ARGUMENT
The CJ EU, interpreting certain
directives, disregards particularities
of the national legal systems of the
MS’s and thus prejudice settled
principles of the national legal
systems
пЃµ Creating the rules of the directives,
EU bodies often introduce unknown
(foreign) terms and institutes in
national legal systems
пЃµ
NON-HARMONISED LEGAL
OREDERS OF THE MS’s
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пЃµ
пЃµ
Terms and institutes from the Directives
differently interpreted from country to
country
Minimum harmonisation system
problem
When implementing a directive,
national legislators maintain the
existing national legislation in parallel
OBSOLESCENCE OF THE
CONSUMER ACQUIS
Directives in the field of consumer
protection mainly from the eighties
of the 20th century
пЃµ No longer corresponding to the
demands of modern market (digital
technologies, innovative marketing
techniques)
пЃµ The need for amending the existing
regulation
пЃµ
COMPLEXITY OF THE EXISTING
CONSUMER ACQUIS
Text of certain directives extremely
complicated and complex, and thus
unintelligible
пЃµ Example of the Unfair Commercial
Practices Directive
пЃµ
UNFAIR COMMERCIAL
PRACTICE DIRECTIVE
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Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or
in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the
information is factually correct, in relation to one or more of the following elements, and in either case causes or is
likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories,
after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness
for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its
use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales
process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status,
approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards
and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the
European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and
associated guarantees [8], or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features
and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would
not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade
marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken
to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified,
and
(ii) the trader indicates in a commercial practice that he is bound by the code.
PRESENT/FUTURE
Communication from the Commission
to the European Parliament and the
Council – A More Coherent European
Contract Law – An Action Plan
(2003)
пЃµ Green Paper on the Review of the
Consumer Acquis (2006-2007)
пЃµ
PRESENT/FUTURE
Necessity of creating a new
consumer acquis with the purpose of
пЃµ Simplification of the regulation
пЃµ Completion of the regulation
пЃµ Harmonisation of the regulation
пЃµ Modernisation of the regulation
пЃµ
POSSIBLE DEVELOPMENT
STRATEGIES
пЃµ
Three basic strategies proposed:
• Vertical approach – revision of the
existing directives
• Horizontal approach – creation of one of
few umbrella instruments regulating
common features of the consumer
acquis
• Mixed, horizontal-vertical approach
VERTICAL APPROACH
пЃµ
пЃµ
пЃµ
Amendment of each directive with the aim
of their modernisation and harmonisation
with the current market demands
Elimination of inconsistencies within
particular directive and among different
directives
Shortcomings:
• basic terms would still be defined within
particular directives
• volume (number) of directives would not
diminish
HORIZONTAL APPROACH
пЃµ
пЃµ
пЃµ
Regulation of common elements of the
consumer acquis-a, such as terms
consumer, professional, withdrawal
period, etc. would be extracted from the
existing directives and provided for within
unique “instrument” in an systematic
fashion
Second part of horizontal “instrument”
would regulate sales contract, as most
common consumer contract
The application of a horizontal approach
begun with Unfair Commercial Practices
Directive
HORIZONTAL APPROACH
пЃµ
“Instrument” selection
• directive
• regulation
• recommendation
• “common frame of reference”
MIXED APPROACH
Dominant horizontal approach
пЃµ Vertical approach as an exception, in
certain segments of the market
пЃµ
LEVEL OF HARMONISATION
Unsatisfactory results of the existing
minimum harmonisation system
пЃµ Suggested:
пЃµ
• maximum harmonisation system
• combination of minimum harmonisation
system and mutual recognition clause
NEW DIRECTIVES
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пЃµ
пЃµ
пЃµ
пЃµ
Directive 2005/29/EC on unfair
commercial practice
Directive 2008/48/EC on credit
agreements for consumers
Directive 2008/122/EC on the protection
of consumers in respect of certain aspects
of timeshare, long-term holiday product,
resale and exchange contracts
Directive 2011/83/EU on consumer rights
Draft Regulation on a Common European
Sales Law
COMMON FRAME OF
REFERENCE
пЃµ
пЃµ
пЃµ
Step forward in creation of European contract law
Public “document” containing common principles,
basic rules and terminology in the field of
European contract law
Purpose threefold:
• Utilisation from the Commission in the process of the
revision of the existing acquis-a and creation of a new
measures
• Utilisation from the national legislators and courts in
order to achieve a higher degree of convergence
• Basis for possible optional instrument
COMMON FRAME OF
REFERENCE
пЃµ
Drafting on the basis of:
• rules from the existing national legal orders of
the MS’s which are common to all or majority
of MS’s or which represent best solutions in
certain situation
• findings of the national courts
• rules from the existing acquis and international
instruments such as UN Convention on
international sale of goods
INFLUENCE ON PRIVATE
LAW ORDERS OF THE MS’s
пЃµ
пЃµ
пЃµ
пЃµ
Admissibility of creation of the European
Civil Code
1989 Resolution of the European
Parliament on the activities for
harmonisation of the private laws of the
Member States
2001 Resolution of the European
Parliament on approximation of the civil
and commercial laws of the Member
States
2001 Council Report on the need for
convergence of the civil law orders of the
MS’s
EUROPEAN CONTRACT LAW
пЃµ
пЃµ
Desirable result of the efforts of the EU bodies
Based on
• the common frame of reference
• existing acquis
пЃµ
New optional instrument
• Draft Regulation on a Common European Sales Law
POSIBBLE OBSTACLES
Claim that national civil law orders
are part of the national identity
пЃµ Claim that there are no common
principles to support new European
civil law
пЃµ
POSSIBLE PATHS IN
CREATING EUROPEAN CIVIL
CODE
Institutional path most unlikely
пЃµ Suggested:
пЃµ
• Crawling codification
• Competition between national legal
systems
• Harmonisation of IPL’s
• Creation of the European Contract
Law
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