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CONSUMER PROTECTION IN THE EU

CONSUMER PROTECTION IN THE EU. Marko Baretić, Ph.D Civil Law Department Faculty of Law in Zagreb. OUTLINE OF THE COURSE. Introduction to the Consumer Protection Development Main sources Main principles Basic features Market regulation Product safety Regulation of trade practices

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CONSUMER PROTECTION IN THE EU

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  1. CONSUMER PROTECTION IN THE EU Marko Baretić, Ph.D Civil Law Department Faculty of Law in Zagreb

  2. OUTLINE OF THE COURSE • Introduction to the Consumer Protection • Development • Main sources • Main principles • Basic features • Market regulation • Product safety • Regulation of trade practices • Contract Law issues • General part (unfair contract terms, specific techniques of conclusion of contract,warranties and associated guaranties) • Specific contracts (consumer credit, touristic products) • Tort Law issues • Liability for defective products • Procedural Law • Protection of collective interests of consumers • Alternative disputes resolution systems

  3. CONSUMER PROTECTION IN THE EU 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

  4. CONSTITUTIONAL BASIS OF THE CONSUMER PROTECTION The Treaty on establishing the European Economic Community (Rome Treaty) Incidental reference to consumers in the context of agricultural policy and competition policy

  5. CONSTITUTIONAL BASIS OF THE CONSUMER PROTECTION Single European Act (1987) No major changes Inclusion of the Article 100a – new, simplified decision making process

  6. CONSTITUTIONAL BASIS OF THE CONSUMER PROTECTION 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

  7. AMSTERDAM TREATY Renumberation of the Treaty Article 129a becomes Article 153 No substantial changes Explicit mentioning of the “horizontal” nature of consumer protection policy

  8. NICE TREATY No changes in comparison to the Amsterdam Treaty

  9. 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 Article 169 TFEU (ex Article 153 of the Treaty on Establishing the EC)

  10. 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.

  11. 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.

  12. CHARACTERISTICS OF THE CONSUMER PROTECTION POLICY 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 Concept of minimum protection (minimum harmonisation)

  13. DEVELOPMENT OF THE CONSUMER PROTECTION LAW Indirect development (harmonization of national laws) “soft law” initiatives “negative law”

  14. INDIRECT POLICY 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

  15. SOFT LAW Development through resolutions – non-binding rules Although non-binding, the importance of the resolutions follows from the fact: they express political position of the institutions of the EU the CJEU often invokes resolutions as if they were binding instruments

  16. SOFT LAW Council Resolution on preliminary programme for a consumer protection and information policy (1975) Basic consumer rights enumerated: 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 (the right to be heard)

  17. SOFT LAW 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

  18. NEGATIVE LAW 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 Development through the court practice

  19. NEGATIVE LAW • 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) • Removal of national measures aimed at protection of (domestic) consumers • C-120/78 Rewe Zentrale v. Bundesmonopolverwaltung für Branntwein (Casis de Dijon) (minimum alcohol requirement) • Case 407/85 Drei Glocken v. USL Centro-Sud (Italian pasta)

  20. PRESENT STATE OF PLAY Over 90 directives dealing with consumer protection issues Since the CP represent a horizontal policy – many directives in other areas cover also CP issues Strong influence on legal orders of the MS

  21. PRESENT STATE OF PLAY 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) indirect harmonisation of the private law systems of the MS

  22. CONSUMER ACQUIS 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

  23. CONSUMER ACQUIS Directive 2006/114/EC concerning misleading and comparative advertising Directive 2005/29/EC on unfair commercial practices

  24. CONSUMER ACQUIS 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

  25. CONSUMER ACQUIS 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

  26. 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 The question of viability of public/private law division

  27. 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!!!!!!!!

  28. CONSUMER CONTRACT Business to Consumer (B2C) Business to Business (B2B) Consumer to Consumer (C2C)

  29. 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 Vertical/horisontal approach Significantly changed legal orders of the MS’s

  30. CHARACTERISTICS OF THE CONSUMER PROTECTION LAW 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

  31. INFORMATION DUTY Information paradigm – “well informed consumer shall be able to protect himself efficiently” Both in pre-contractual and post-contractual stage

  32. WITHDRAWAL RIGHT Right provided by Door-to-door Directive Distance Sale Directive Distance Marketing of Financial Services Directive Timeshare Directive Consumer Credit Directive Consumer Rights Directive

  33. COLLECTIVE CONSUMER PROTECTION 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

  34. LEGAL NATURE OF CONSUMER PROTECTION RULES Not ius strictum in a classical sense Rather (semi)strict rules Possible to contract out these rules – but only in the interest of a consumer Departure from the party autonomy principle

  35. WIDE RANGE OF ESSENTIAL ELEMENTS IN CONSUMER CONTRACT Many directives provide wide range of essential elements in consumer contracts The problem of rational choice of essential elements

  36. SPECIAL PIL RULES The consumer can not be deprived of the protection provided for by law by virtue of choice of law This rule does not entirely excludes the possibility of contracting in choice of law clauses

  37. BURDEN OF PROOF Burden of proof as to the existence/non-existence of certain facts shifted to the trader This rule contained within: Distance Sale Directive Distance Marketing of Financial Services Directive Unfair Commercial Practices Directive

  38. ALTERNATIVE DISPUTE SETLEMENT European Union supports and promotes alternative dispute settlement systems Good examples: Mediation Ombutsmans in Nordic countries Office of Fair Trading in the UK

  39. CHALLANGES TO THE CONSUMER PROTECTION LAW Unsystematic approach Inconsistency “Black box” argument Non-harmonised legal orders of the MS’s Obsolescence of the consumer acquis Complexity of the consumer acquis

  40. UNSISTEMATIC APPROACH “Pointilistic” approach in making consumer protection regulation Consumer protection acquis not based on common principles

  41. INCONSISTANCY Inconsistency on two levels: Within the same directive between various directives

  42. INCONSISTENCY Different approaches/different terminology in the same directive Simultaneous use of the term “indemnity” and “compensation” in the same directive

  43. INCONSISTENCY 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)

  44. INCONSISTENCY 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)

  45. INCONSISTENCY 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) Problem of computation through “working days” (distance contracts) and “calendar days” (timeshare).

  46. INCONSISTENCY • In specific situations two EU instruments can be applicable which produce conflicting results. • Example: Doorstep Selling Directive and Timeshare Directive

  47. INCONSISTENCY The use of abstract legal terms such as “contract”, “damage”, “fulfilment/non-fulfilment” 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

  48. INCONSISTENCY Inconsistency as a consequence of multiple language approach Example of Unfair Terms Directive Pre-formulated contracts Contrat d’ adhésion Contrato di adesione

  49. “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 Creating the rules of the directives, EU bodies often introduce unknown (foreign) terms and institutes in national legal systems

  50. NON-HARMONISED LEGAL OREDERS OF THE MS’s 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

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