European Consumer Policy after Maastricht

327 Pages·1994·10.511 MB·English

by  Hans-W. Micklitz, Stephen Weatherill (auth.), Norbert Reich, Geoffrey Woodroffe (eds.)

EUROPEAN CONSUMER POLICY
AFTER MAASTRICHT
Edited by
NORBERT REICH
ZERP (Centrefor European Legal Policy),
Bremen, Germany
and
GEOFFREY WOODROFFE
Brunel, The University ofWest London,
London, U.K.
Reprintedjrom Journal ofConsumer Policy 16 (3-4),1993 and 17 (1),1994
SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.
Library of Congress Cataloging-in-Publication Data
A c.I.P. Catalogue record for this book is available from the Library of Congress
ISBN 978-90-481-4381-8 ISBN 978-94-017-1484-6 (eBook)
DOI 10.1007/978-94-017-1484-6
Printed an acid-free paper
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© 1994 Springer Science+Business Media Dordrecht
Origina11y published by Kluwer Academic Publishers in 1994
Softcover reprint of the hardcover 1s t edition 1994
No part of the material protected by this copyright notice may be reproduced Of
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TABLE OF CONTENTS
Introductory Remarks v
Part I. Supranational Issues
Hans-W. Micklitz and Stephen Weatherilll Consumer Policy in the
European Community: Before and after Maastricht 3
Leigh Gibson I Subsidiarity: The Implications for Consumer Policy 41
BjiSrge Dahll Consumer Protection within the European Union 63
Lothar Maier I Institutional Consumer Representation in the European
Community 73
Monique Goyens I Where There's a Will. There's a Way! A Practioner's
View 93
Bob Schmitz I Advertising and Commercial Communications - Towards a
Coherent and Effective EC Policy 105
Hans-W. Micklitz I Cross-Border Consumer Conflicts - A French-German
Experience 129
Thomas Wilhelmsson I Control of Unfair Contract Terms and Social
Values: EC and Nordic Approaches 153
Ludwig Krämer I On the Interrelation between Consumer and Environmen-
tal Policies in the European Community 173
Part 11. National Perspectives
Hans Peter Lehofer I Minimum Implementation of Minimum Directives?
Consumer Protection in Austria in the Context of European
Integration 189
Agnes Chambraud, Patricia Foucher, and Anne Morin I The Importance of
Community Law for French Consumer Protection Legislation 209
Klaus Tonner I The European Influence on German Consumer Law 225
Elisa Alexandridou I Completion of the Internal Market and Consumer
Protection in Greece 237
Simonetta Cotterli, Paolo Martinello, and Carlo M. Verardi I Implementa-
tion of EEC Consumer Protection Directives in Italy 249
Manuel-Angel L6pez Siinchez I Implementation of EEC Consumer
Proteetion Directives in Spain 269
Kjersti Graver I The Internal Market and Consumer Protection in Norway 287
Isabel Mendes Cabec;adas I The Development of Portuguese Consumer
Law with Special Regard to Conflict Resolution 299
Per Eklund I The Effect of the EEA Agreement on Consumer Protection
Interests in Sweden 309
Bernd Stauder I Completion of the Internal Market and Consumer
Proteetion - The Specific Case of Switzerland 321
Introductory Remarks
This special issue, which has been generously supported by agrant from
the EC Commission, Consumer Policy Service, raises both "horizontal"
and "vertical issues" of consumer policy in the European Community and
associated countries. It has been prompted by three important
"constitutional" events in Europe: the completion of the Internal Market
on 31 December, 1992; the adoption of the Maastricht Treaty on Political
Union, and the conclusion of the Agreement on the European Economic
Area(EEA).
Due to the large number of contributions, it has become necessary to
divide the contents into two parts. Part lappears as a double issue, Nos.
3+4 ofVolume 16 (1993); whereas Part 11 appears as No. 1 ofVolume 17
(1994).
The "horizontal" papers in Part I are concerned both with analysing the
"acquis" of consumer policy in Europe and with new directions as well as
obstacles. The keynote paper by Micklitz and Weatherill gives an overall
analysis of the political and legal bases of consumer policy from both the
Internal Market and the Political Union perspectives. It is followed by two
papers on subsidiarity by Gibson and Dahl which take up and clarify a
somewhat confusing and irritating discussion in the EC. Lothar Maier is
concerned with the function and role of the Consumers' Consultative
Council in the EC of which he is the president; Monique Goyens with the
opportunities and, especially, the shortcomings of consumer interest
lobbying in the EC by her association, BEUC. The papers by Schmitz,
Micklitz, Wilhelmsson, and Krämer raise controversial and still un
resolved policy and legal issues which go beyond traditio~al consumer
policy via directives, e.g., in commercial marketing, cross-border litiga
tion, contract law matters, and conflicts between consumer and environ
mental poliey. These papers will, it is hoped, provoke comments and
rejoinders; the special issue editors will be happy to consider them for
publication if submitted in due time and form.
Part 11 is concerned with national perspectives. The individual country
reports relate to the EC and EEA countries and to Switzerland. They
document the diverse - sometimes protective, sometimes disturbing -
impact of EC law-making on national legislation, court practice, and
Journal ofConsumer Policy 16: v-vi,1993.
vi
enforcement. They demonstrate that law harmonization is a painstaking
process towards the goal of creating a European legal area with common
protective standards.
The Editors thank the EC Commission for having made this special
issue possible, as weIl as the contributors who have been willing to
cooperate under considerable time pressure in the preparation of this issue.
Norbert Reich Geoffrey Woodroffe
Part One
Supranational Issues
Hans-W. Mieklitz and Stephen Weatherill
Consumer Poliey in the European
Community: Before and After Maastrieht
ABSTRACT. The purpose of this paper is to ex amine the extent to which the Treaty on
European Union agreed at Maastricht will alter European Community consumer
proteetion law and policy. Two aspects of the Treaty have attracted most interest from
the consumer viewpoint: the potential forward impetus resulting from the inclusion in
the Treaty of a specific Title devoted to consumer protection and the potential reverse
impetus of the principle of subsidiarity. The paper surveys the broad scope of
Community consumer protection law and policy and analyses subsidiarity as a means
for sharpening the debate about responsibility for regulating the Community, not as a
basis for renationalisation of Comrnunity competence. The paper attempts 10 build
alongside the process of market integration a set of enforceable consumer rights to
market regulation. This, more than the new Title, could give real shape to the notion of
consumer rights, which in the earlier development of Community law has arisen only in
the context of the consumer as the passive beneficiary of free trade.
MARKET INTEGRATION AND THE CONSUMER
The Concealed Place of Consumer Policy in the Treaty of Rome
Although explicit reference to the consumer is largely absent from
the Treaty of Rome, the Treaty proceeds on the basis that the
I
consumer is the ultimate beneficiary of its economic objectives. The
transformation of relatively small-scale national markets into a large
single Community market will stimulate competition and induce
producers to achieve maximum efficiency in order to protect, and a
fortiori to expand, their market share. As a matter of economic theory,
this intensification of competition should serve the consumer by
increasing the available choice of goods and services, thereby inducing
improvements in their quality and reduction in their price.
The Treaty offers no catalogue of consumer rights or interests which
exists independently of the general notion that the consumer will
benefit from the process of market integration. In this sense
Community consumer law revolves around the application of the
substantive provisions of the Treaty which act as an instrument for the
achievement of the economically efficient integrated market.
Provisions such as Articles 30, 48, 52 and 59, which are designed
Journal of Consumer Policy 16: 285-321, 1993.
© 1993 Kluwer Academic Publishers. 3
286 Hans-W. Micklitz and Stephen Weatherill
to remove barriers to the free circulation of goods, persons and
services, and Articles 85, 86 and 90, the Treaty provisions which
regulate the competitive conduct of commercial firms, are indirectly
part of EC consumer law and policy.
Consumer Choice in the Court's Jurisprudence
On occasion, the Court has made explicit its view that one of the
functions of substantive Community law is to abolish national rules
which restrict consumer choice in favour of a freer market where
widened consumer choice may act as a spur to the development of
an efficient Community-wide market. The Court has declared that
the legislation of a Member State must not
crystallize given consumer habits so as to consolidate an advantage acquired by national
industries concerned to comply with them.
The Court has employed this phrase both in the context of fiscal
rules wh ich favour typical national products2 and technical rules which
exert a similar protectionist effect.3 In De Kikvorsch Groothandel4
the Court considered the compatibility with Article 30 of a Dutch
rule which required be er marketed in the Netherlands to be made
according to stipulated typical Dutch techniques. Such a rule impeded
the marketing in the Netherlands of imported beers made according
to different traditions. The Court insisted on the primacy of consumer
choice over State regulation as a determinant of market availability.
It declared that
no consideration relating to the protection of the national consumer militates in favour
of a rule preventing such consumers from trying a beer which is brewed according
to a different tradition in another Member State and the label of which c1early states
that it comes from outside the said part of the Community.
Consumer choice has also played a part in the interpretation of
the application of the Treaty competition rules. In Cooperatieve
vereniging Suiker Vnie VA and others v Commission5 arrangements
which led to the isolation of national markets from cross-border com
petition were condemned. The Court ruled such practices to be "to
the detriment of effective freedom of movement of the products in
the common market and of the freedom of consumers to choose their
suppliers."6
4
Before and After Maastricht 287
Consumer Rights in the Court's Jurisprudence
The expansion of consumer choice in the integrated market, under
pinned by the application of legal rules which restrain States from
obstructing trade, may be recast in terms of Consumer Rights. These
rights recognised under EC law arise indirectly in the sense that the
consumer has the right to benefit from the fruits of market integra
tion by buying goods and services from other Member States while
resident in his or her horne State and by receiving information about
goods and services available in other Member States. The cross-border
activity in such cases, and any necessary litigation based on substantive
EC trade law, is typically undertaken by the supplier of the goods
or services. Beyond the right to receive goods and services as the
passive beneficiary of market integration, the consumer also has the
right to participate more actively in the process of market integra
tion. In GB-INNO-BM v Confederation du Commerce Luxem
bourgeois7 the Court dec1ared that
Free movement of goods concerns not only traders but also individuals. It requires,
particularly in frontier areas, that consumers resident in one Member State may travel
freely to the territory of another Member State to shop under the same conditions as
the local population.
The Court determined in Luisi and Carbone v Ministero del Tesero8
that "tourists, persons receiving medical treatment and persons
travelling for the purpose of education or business" are to be regarded
as recipients of services who enjoy the right of free movement under
Artic1e 59. This seems to guarantee to the consumer as an economi
cally active migrant rights of entry, residence and non-discrimination.9
Moreover, the Court is prepared to draw an entitlement to attached
social benefits in favour of the recipient of services, even where
those benefits are not directly linked to the service being received.
In Cowan v Le Tresor PubliclO the Court ruled that the French author
ities had to make available compensation to a British tourist mugged
in Paris on the same terms as would apply to a French resident. The
decision is relevant to the Community law notion of consumer rights,
yet it locates that notion in a broader context.ll More generally, the
completion of the intern al market in accordance with Article 8a at
the end of 1992 has in principle established the right of the private
consumer to move freely across borders and to return horne with
whatever he or she pleases for his or her private consumption.
In this way, consumer rights may be drawn from the Treaty.
5