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European Consumer Policy after Maastricht PDF

327 Pages·1994·10.511 MB·English
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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 All Rights Reserved © 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 utiIized in any fOfm Of by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. 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

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