# C_2009317EN.01005401.xml

| 23.12.2009 | EN | Official Journal of the European Union | C 317/54 |
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23.12.2009

EN

Official Journal of the European Union

C 317/54

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455TH PLENARY SESSION HELD ON 15 AND 16 JULY 2009

TH PLENARY SESSION HELD ON 15 AND 16 JULY 2009

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on consumer rights’

COM(2008) 614 — 2008/0196 (COD)

(2009/C 317/09)

Rapporteur: Mr Hernández BATALLER

Mr Hernández BATALLER

Co-rapporteur: Mr MULEWICZ

Mr MULEWICZ

On 6 November 2008, the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the

Proposal for a Directive of the European Parliament and of the Council on consumer rights

Proposal for a Directive of the European Parliament and of the Council on consumer rights

COM(2008) 614 final — 2008/0196 (COD).

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 22 June 2009. The rapporteur was Mr Hernández Bataller and the co-rapporteur was Mr Mulewicz.

At its 455th plenary session, held on 15 and 16 July (meeting of 16 July), the European Economic and Social Committee adopted the following opinion by 68 votes, with none against and one abstention.

1.   Conclusions

1.1   The EESC recommends that the Commission proposal on consumer rights be reworded in the terms set out in this opinion and should thus deal only with horizontal harmonisation on distance and off-premises sales, rather than attempting to achieve full harmonisation because these are the areas most affected by cross-border trade.

The sections of the proposal for a Directive on unfair terms and on the sale of goods and associated guarantees should be removed, as these sections deal with issues that cannot be dealt with appropriately through full harmonisation with Community law at its current stage of development.

1.2.1   The proposal breaks no new ground on a number of relevant aspects such as after-sales assistance and spare parts, or the direct liability of the producer and the distribution networks.

The EESC believes that establishing ‘common’ definitions would provide a greater level of legal certainty to commercial players and consumers. The Commission should therefore iron out the inconsistencies which currently exist in this area of the proposal.

1.3.1   The EESC calls on the Commission, for the sake of legal certainty, to ensure that its proposal clarifies whether or not the definitions it provides are to be fully harmonised or whether the Member States will have some discretion to elaborate on these concepts.

1.3.2   European consumers should not be seen solely in terms of the internal market or be viewed as rational market players, aware and well-informed, taking decisions purely on the basis of competition, with consumer protection amounting simply to providing more and better information.

1.4   The EESC wishes to note that the serious shortcomings in dispute settlement and compensation for damages are a key factor ‘if not the most important’ factor in the lack of progress on cross-border trade. The Commission proposal, however, omits this concern, which is reflected in the Eurobarometer.

2.   Introduction

2.1   This proposal originated in a process of wide-ranging discussion at the Community level on the possibilities of unifying legislation in the field of contracts on the basis of a ‘common frame of reference’ for contracts, on which the Commission has adopted a Communication on European Contract Law (1). Discussions have also taken place in the field of consumer protection policy, with regard to reviewing the consumer acquis covering both horizontal (2) and vertical (3) aspects, with regard to the existing consumer protection directives on contractual matters.

1

acquis

2

3

2.2   In its opinion on the review of the consumer acquis
   (4), the EESC stated that ‘Consumer policy is not only an integral part of the EU internal market strategy but is also an important and affirming element of citizenship’. Furthermore, as regards Community-level harmonisation, the author of this opinion considers that the guiding principle should be to adopt the highest and most effective level of protection that currently exists in the different Member States.

acquis

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3.   Gist of the proposal

3.1   The direct predecessor of the Commission proposal is the Commission Green Paper on the Review of the Consumer Acquis, COM(2006) 744 final, of 8 February 2007, the grounds for and objectives of which were to simplify and complete the existing legal framework. The Green Paper covers eight directives on consumer protection (5). The responses to the Green Paper are analysed in the detailed report requested by the European Commission and it should be pointed out that half of all the contributions received come from the commercial sector (150), with the other half being divided amongst consumer organisations (53), legal and other professionals (33), public authorities (39) academic bodies (32) (6).

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3.2   The proposal contains fifty articles divided into seven chapters concerning: 1) subject matter, definitions and scope (Articles 1 to 4); II) consumer information (Articles 5 to 7); III) consumer information and withdrawal right for distance and off-premises contracts (Articles 8 to 20); IV) other consumer rights specific to sales contracts (Articles 21 to 29); V) consumer rights concerning contract terms (Articles 30 to 39); VI) general provisions (Articles 40 to 46) and final provisions (Articles 47 to 50). The document also contains five annexes, two of which concern terms in contracts.

3.3   The Commission would like the following Community directives to be fully repealed (see Article 47): (i) Directive 85/577/EEC, of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises; (ii) Directive 1993/13/EEC on unfair terms in consumer contracts; (iii) Directive 1997/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts and (iv) Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees.

4.   General comments

Full harmonisation: The reception given to the Commission proposal varies considerably amongst the different stakeholders in organised civil society:

Full harmonisation

4.1.1   Employers’ associations support the proposal because it will, in their view, help to improve the workings of the internal market and could make it more competitive by reducing the reluctance to carry out cross-border transactions as well as the administrative burden and compliance costs for traders. This could be of particular relevance to SMEs.

4.1.2   Consumer organisations consider that the proposal affects previously acquired rights that form part of the Community acquis, which makes any reduction of consumer rights unacceptable. The general view is that the proposal would lead to a reduction in consumer rights, because the effects of full harmonisation would be excessive and disproportionate to the proposal’s stated aims and would hamper future developments.

acquis

4.1.3   In order to rise above the differing positions adopted, the Committee proposes:

| a) | limiting the proposal’s scope exclusively to off-premises sales and distance sales, because it is in these areas of cross-border transactions that the proposal aims to overcome barriers and where full harmonisation would appear to be most logical. Total harmonisation would be excluded for unfair terms and sales guarantees. |
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a)

limiting the proposal’s scope exclusively to off-premises sales and distance sales, because it is in these areas of cross-border transactions that the proposal aims to overcome barriers and where full harmonisation would appear to be most logical. Total harmonisation would be excluded for unfair terms and sales guarantees.

| b) | that the proposal establish common definitions and that existing inconsistencies should be ironed out. |
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b)

that the proposal establish common definitions and that existing inconsistencies should be ironed out.

| c) | introducing other changes as suggested in this opinion. |
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c)

introducing other changes as suggested in this opinion.

4.2   The proposal’s lack of internal coherence

4.2.1   Given the expectation arising from the many discussions, documents and studies produced in the last twenty-plus years on European contract law, well before or in tandem with the Green Paper and also against the backdrop of the parallel Common Frame of Reference project (7), the EESC considers that the Commission proposal falls short of what is expected and desirable.

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4.2.2   Firstly, the aim of revising the acquis identifies eight directives, whereas the Commission proposal for revision and incorporation confines itself to four of these. Secondly, the work carried out under the CFR sought to eliminate inconsistencies and consolidate the rules of what is known as European contract law into an optional instrument that would be a useful tool for professionals, consumers, those that implement the law and legislators.

acquis

4.2.3   Against this backdrop, whilst there are some positive aspects to the practical content now being proposed, this does little more than bring together in a single text rules from four directives, under a set of common definitions, and is ultimately lacking in innovation and structure and fails to take account of the concerns for consolidation, clarification and refinement required by the high level of consumer protection that the EU must provide. Moreover, by leaving essential aspects of the legal provisions of the amended directives to Member States’ legislation and by deciding to use a ‘directive’ rather than a ‘regulation’, the proposal is not even in line with the proposed aim of full harmonisation. It does not achieve this aim to any satisfactory degree and instead creates further uncertainties and differences in the Member States’ systems.

4.2.4   The EESC plays an active role in the field of consumer protection, regularly delivering opinions, at its own initiative, in which it states its views and it is on the basis of the texts it has adopted that the EESC is now considering the proposal presented by the Commission.

4.2.5   The completion of a single market for businesses and consumers is an aim shared by the EESC, which acknowledges that there are transaction costs arising from implementing the consumer protection rules in each Member State, which could form a barrier to a more varied range of goods and products on the internal market - something that would benefit consumers. Experience shows, however, that other, more significant obstacles do exist. These are detailed by Eurobarometer (8) and include the lack of confidence in e-commerce.

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4.3   Cross-border barriers

The Commission appears to consider the main barrier to the completion of the internal market and especially to cross-border sales to be traders’ costs and reservations on the supply side and where demand is concerned, the lack of consumer confidence. It identifies the causes of the problems detected as fragmentation and the differences in laws resulting from minimum harmonisation.

4.3.1.1   Although the directives on minimum harmonisation have been the most frequently used tool in Community consumer law, the example of Directive 2005/29/EC on Unfair Commercial Practices shows that full harmonisation is a regulatory option that could be detrimental to the consumers’ rights acquired to date, which it would be flouting, in clear breach of Article 153 of the Treaty (9).

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4.4   Community-level competences

4.4.1   The EESC wishes to point out that Community consumer protection policies and policies aimed at protecting competition have completely different origins.

4.4.2   Whereas the Treaty of Rome stated that the Community had exclusive competence in the field of competition policy, it did not include consumer protection as a distinct policy objective. In fact, although a number of measures had been adopted (10), the framework for this Community policy was a Council Resolution such as the European Economic Community's preliminary programme for consumer protection and information policy, which dates back no further than 14 April 1975.

exclusive competence

competition policy

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4.4.3   The adoption of a Community consumer protection policy is, therefore, the result of a number of systematic steps by consumer organisations, which compelled their own Member States to adopt this type of protection policy, which the EU ultimately also recognised.

4.4.4   This explains why, in the field of consumer protection, the Community is now torn between the duty to ensure a high level of protection for consumers and a shared and subsidiary competence of the Member States
   (11).

shared and subsidiary competence of the Member States

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4.4.5   Consumer protection policies have been adopted by the Member States, providing higher levels of protection and upholding measures already in place, and with a view to intervention and ensuring social concord.

4.4.6   European consumers should not, therefore, be seen solely in terms of the internal market or be viewed as rational market players, aware and well-informed, taking decisions purely on the basis of competition, with consumer protection amounting simply to providing more and better information.

4.4.7   As the EESC has stated on previous occasions, any proposal seeking to achieve maximum harmonisation in the field of consumer protection should focus on highly practical aspects and go hand in hand with special precautions in order to comply with the high level of consumer protection guaranteed by the Treaty, whilst observing the principle of subsidiarity. Otherwise, the consequence would be to delay and hamper the development of consumer rights in each Member State.

4.5   Legal base

4.5.1   The EESC also questions the legal base proposed for the directive: Article 95 and not Article 153.

4.5.2   The Committee has repeatedly stated its support for using Article 153 of the Treaty as the legal base for legislative proposals for consumer protection instead of Article 95 TEC, which concerns the internal market. In all of its recent proposals, however, the Commission uses Article 95 TEC, deeming it appropriate because of the internal market focus of the proposal for a directive.

5.   Specific comments

5.1   Broadly speaking, the proposal is quite complex, making an excessive use of referrals, (see, for example, Art. 3(2) and (4), Art. 6(9)(a), Art. 10, Art. 21(1) and (3), Art. 28, Art. 32(2), Art. 35) which make it harder to read and understand and is frequently written in vague or uncertain expressions that would make the proposal difficult to transpose. It should be added that its classification is not always easy to understand (see Art. 45 on unsolicited supply in Chapter VI – General Provisions). If the these opacities remain in the Directive, a clause must be included in it and in national rules to the effect that in the event of disputes arising due to ambiguities, the text should be interpreted in favour of the consumer as the weaker party.

5.2   Furthermore, the proposal fails to address laws on procedures and penalties which, because they are a logical consequence of maximum harmonisation, are still being referred to the Member States (See recital (58) and Art. 42). This aspect is likely to create significant inconsistencies in harmonisation. By way of example, see the cases of: (i) information requirements (Article 5) in which the task of setting consequences for non-compliance is referred to Member States but in a strange wording — ‘in the field of contract law’ —, leaving it unclear as to whether imposing administrative or criminal penalties would be considered to breach a directive; (ii) the consequences of classifying a contractual term as unfair when the text merely states that these are not binding on the consumer, since Member States are free to use any concept of national contract law that complies with the stated aims (see recital 54 and Article 37), the right of withdrawal system.

5.3   The contrasting rules covering the right of withdrawal in the different national legal systems. The legal nature of this right, which appears to exclude the concept of pacta sunt servanda from the law of obligations, differs from one Member State to another, ranging from unilateral withdrawal to settlement and termination of the contract, which have different legal implications. The Commission should consider this matter and its proposal should include a coherent system to cover this aspect of contracts.

pacta sunt servanda

5.4   Definitions and scope

In the EESC's view, the Commission proposal should clarify whether or not its definitions would allow the Member States to make their own, complementary contributions to the legislation.

5.4.1   ‘Consumer’ (Art. 2(1) – whilst the definition proposed tallies with the definition given in most Community texts, it fails to state a position on the possibility of extending the concept to cases where the natural person has mixed uses (12), a concept recognised in many Member States (13), or to certain collective legal persons. This rigid definition of a consumer, interpreted in line with ECJ case-law and Directive 2005/29/EC on Unfair Commercial Practices, in conjunction with the rules of Article 4, which prohibits more stringent provisions to ensure a different level of consumer protection, hampers the protection of vulnerable consumers, a category that contracts covered by the proposal could affect. It should be pointed out that Directive 2005/29/EC itself recognises (Article 5(3)) the existence of vulnerable consumers, who should also be exempted here.

‘Consumer’

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5.4.2   ‘Trader’ (Article 2(2)) The Commission proposal does not clarify the position of not-for-profit organisations or public bodies exceeding the bounds of their public-service remit (iure imperium).

Trader

5.4.3   ‘Goods’ and ‘products’ (Article 2(4) and (12) – the adoption of two different definitions for goods and products (the latter matching the definition given in Directive 2005/29/EC) is confusing and difficult to understand. This applies in particular to the case of electricity, which will become either a good or a service depending on whether it gives rise to contractual or extra-contractual liability; this clearly does not help improve the consistency of Community legislation. The fact that electricity has been left out of the Directive is inconsistent, as the Directive does apply to items which store electricity such as batteries, as is the case in many Member States.

‘Goods’ and ‘products’

5.4.4   ‘Distance contracts’ (Article 2(6)). This definition is broader than the definition set out in the current Directive on distance sales. And this causes difficulties. For the new definition to apply, distance communication must be used exclusively ‘for the conclusion of the contract’, which means that many more contracts than before will fall into the distance contract category. Here are two examples. First example: consumer X goes into a shop and talks about the possibility of buying something, goes home and then telephones the shop to confirm he will make the purchase. It is not clear why it is necessary to broaden the definition to include this example. Second example: a salesman visits consumer Y's house and during the salesman's visit, consumer Y makes him an offer on his products. This offer is made verbally or by filling in an order form. Later, the salesman confirms that he accepts consumer Y's offer by telephone or email. In the second example, the contract seems to be both a distance contract and an off-premises contract: which is it? Does consumer Y have 14 days to change his mind from the date the order form was signed (the withdrawal period for off-premises contracts) or 14 days from the day on which he acquires material possession of the goods (the withdrawal period for distance contracts)? The definitions ‘distance contract’ and ‘off-premises contract’ should not overlap.

‘Distance contracts’

5.4.5   ‘Business premises’ (Article 2(9)). This is another definition whose real scope is hard to discern. When interpreted in line with recital 15, this point raises the following question: would sales on board aircraft or ships be considered to be sales on or off business premises?

‘Business premises’

5.4.6   Commercial guarantee. The proposal appropriates the term ‘commercial guarantee’ (see Article 2(18)) from the Green Paper on guarantees for consumer goods and after-sales services, but now does not distinguish it from the legal guarantee, which is only covered by Directive 99/44/EC (see Article 1(2)(e)). This replacement is likely to confuse consumers as to the true effectiveness of one type of guarantee or another. It should be made clear that a commercial guarantee requires the trader to fulfil his obligations voluntarily, whereas a ’legal guarantee' is binding in nature.

Commercial guarantee

5.4.7   Intermediary. Both the definition of intermediary (Article 2(19)) and the special information requirements that apply (Article 7) are difficult to understand. Indeed, this is either a professional activity and thus subject to the directive or it is not, and there is thus no need for regulation. The EESC therefore suggests clarification.

Intermediary

5.4.8   Consumer information. (Article 5). The general information requirements that apply before a contract is concluded clearly allow for the possibility that information will not be provided (1. Prior to the conclusion of any sales or service contract, the trader shall provide the consumer with the following information, ‘if not already apparent from the context’). In the EESC's view, the wording gives rise to a number of doubts and creates considerable uncertainty and consequently cannot support it.

Consumer information

‘if not already apparent from the context’

5.4.9   Nor, in terms of international private law, is it clear whether the applicable legislation would be the ‘Rome I’ Regulation (as suggested in Article 5(3) or, where a breach of the duty of disclosure is deemed to have taken place, Article 12 of the ‘Rome II’ Regulation (Recital 30 of the ‘Rome II’ Regulation).

5.4.10   The provision set out in Article 6(2) of the proposal on determining the consequences of the duty to provide information in accordance with the applicable national law does not appear reasonable, might result in divergent solutions and should thus be harmonised.

5.4.11   Auctions. It should be made clear that compulsory auctions held by public authorities would always fall outside the proposal’s scope, which does, however, include the concepts of ‘auction’ and ‘public auction’, but only where these are held voluntarily by the trader.

Auctions

5.5   Distance and off-premises contracts

Directive 85/577/EEC, one of the first European legislative initiatives in the field of consumer protection, reveals a lower level of distortion in the national transposition of legislation, mainly involving the use of options to exclude certain types of contract (below a certain value or for certain types of goods) or involving extending protection to consumers as made possible by the minimum harmonisation clause (see Article 8). As a consequence, the maximum harmonisation which is generally provided for is not problematic and has proven to be balanced and positive. Directive 85/577/CEE only applies when the trader's visit to the consumer's home or workplace is unsolicited. The proposal to broaden the scope of this Directive to include solicited visits is acceptable, as long as the number of exceptions set out in Article 19(2) is increased. The following should be added to the list of contracts where the right of withdrawal will not apply (as for distance contracts for example):

| a) | services where performance has begun, with the consumer's prior express consent, before the end of the withdrawal period, and |
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a)

services where performance has begun, with the consumer's prior express consent, before the end of the withdrawal period, and

| b) | the supply of goods made to the consumer's specifications or clearly personalised or which are liable to deteriorate or expire rapidly. |
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b)

the supply of goods made to the consumer's specifications or clearly personalised or which are liable to deteriorate or expire rapidly.

5.5.1.1   If the first of these exceptions is not included in Article 19(2), the service providers could ask consumers who would like the work done quickly (kitchen improvements or a haircut at home for example) to wait at least fourteen days. If the second exception is not included, a trader who makes tailored products (kitchen units or a suit for example) could refuse to begin the contracted work until at least 14 days have passed. Otherwise the consumer could withdraw from the contract, leaving the trader with goods he is unable to sell.

5.5.2   With regard to distance contracts, although a comparative study (14) found no major discrepancies in the transposition of Directive 1997/7/EC, it should also be noted that the Member States have used the options and the minimum harmonisation clause to establish schemes that are more favourable to consumers. Providing for consumer protection options for distance selling involving non-Member States would be a positive development.

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5.5.3   It is, however, possible to discern potential barriers in the internal market linked to the different lists of exemptions or the different information requirements imposed on traders.

5.5.4   The EESC accepts that there is room for improvement as regards the range of exceptions regarding application of the rules, such as the inclusion of lower value goods (15) or services or goods or services likely to be included on the grounds of health, hygiene or safety. This applies in particular to food safety (see Article 20(1)(d)), where referral to Article 2 of Regulation (EC) 178/2002 must be expressly included (16). As regards the exception for lower value goods (and services), there is scope to considerably increase the amount of EUR 60 (in Directive 85/577/CEE).

range of exceptions

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5.5.5   With regard to the right of withdrawal from such contracts, which the proposal standardises as a single time limit of 14 days, the EESC welcomes the way in which these time limits are calculated. Nevertheless, as stated above, the concept underpinning this right and its effects should be harmonised.

right of withdrawal

5.5.6   The EESC also wonders how appropriate it is to establish the rule of consumer liability set out in Article 17(2) (under which the consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertain the nature and functioning of the goods) because it considers that this will create uncertainty and potential problems of proof for consumers.

consumer liability

5.5.7   Without prejudice to the much-needed improvement to the rules now being proposed, the EESC (17) would welcome the proposed maximum harmonisation being limited to these two directives alone, regulating sales methods and thus giving them greater potential to be cross-border in nature.

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6.   Unfair terms in contracts concluded with consumers

This issue, which is currently governed by Directive 1993/13/EEC, is concentrated in Chapter V and Annexes II and III. However the EESC considers – in line with studies carried out by the Commission – that this issue should not be dealt with in the current proposal and should be removed, as full harmonisation of this issue will most certainly give rise to problems in the national legal systems of the different Member States, given the current state of Community law.

However, if the Commission does not withdraw in their entirety the rules on unfair terms in consumer contracts, the EESC would like to make the following observations:

6.1.1.1   As is widely known, this is a core aspect of contract law which, prior to the directive's adoption, was in part regulated by the Member States.

6.1.1.2   The comparative study of its transposition shows that the vast majority of Member States have made use of the minimum harmonisation clause (Article 8), and now have rules that are more favourable to consumers than those provided for in the directive. Further, the current state of affairs makes this an issue for which full harmonisation would not be advisable (14).

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6.1.1.3   It is to be hoped, therefore, that the proposal that has been presented, which calls for the directive currently in force to be definitively repealed, is also transposed to the highest levels but also clarifies the various points of ambiguity that have divided doctrine and case-law.

6.1.1.4   This applies, of course, to the relationship between the principle of good faith and the criterion of imbalance in performance, set out in Article 3(1) of the current directive and retained almost unchanged in Article 32(1) of the proposal concerning the consequences of breaching the transparency requirements now regulated by Article 31.

6.1.1.5   With regard to scope, it is worth noting the introduction of one particular restriction that would be damaging to consumers. Indeed, whereas the proposal under consideration addresses only the terms contained in written contracts (‘drafted in advance’ as stated in Article 30(1), obliging Member States to ‘refrain from imposing any presentational requirements as to the way the contract terms are expressed or made available to the consumer’, the current directive also applies to verbal contracts (see the effect of Article 5 of Directive 93/13/CEE), as also applies in some Member States.

‘drafted in advance’

‘refrain from imposing any presentational requirements as to the way the contract terms are expressed or made available to the consumer’

6.1.1.6   The EESC considers that upholding the present system in addition to setting up a committee and a system for registering terms deemed unfair by the national authorities would be a sufficient step forwards for information on unfair terms, and would be extremely useful to traders, given the reduction in compliance costs, to those implementing the law and to consumers.

6.1.1.7   The issue of unfair terms in contracts is horizontally applicable to all contracts concluded with consumers and also often to those concluded between traders. The EESC considers that the Commission proposal will on this point have a highly significant and detrimental impact on contract law in general and on consumer protection in particular, in all Member States.

7.   Certain aspects of the sale of consumer goods and associated guarantees

7.1   The EESC believes that it is inappropriate to include this issue in the Directive and suggests that it is withdrawn from the proposal as it does not add any value or provide a greater level of protection for consumers.

7.2   Directive 1999/44/EC enabled Member States to adopt or maintain in force measures offering consumers greater protection, which has led to divergent national legislation.

7.3   This case demonstrates the lack of any kind of significant trend in transposition (18) because all Member States, without exception, already had regulation in place applicable to the aspects of sales contracts and the sale of consumer goods regulated by the directive.

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7.4   With regard to the passing of risk (Article 23), the proposal aims to settle disputes relating to the concept of delivery, and the trader is thus liable to the consumer from the time the risk passes to the consumer (Article 25), which could represent an improvement and a clarification.

7.5   The EESC considers that setting a universal time limit for the delivery of goods would be inconsistent, except for certain types of sale (distance and off-premises sales), because Article 22 of the proposal, which states that the trader shall deliver the goods within thirty days from the day of the conclusion of the contract, is disproportionate.

7.6   Nevertheless, by removing Member States’ option to set a time limit for the presumption of conformity with the provisions of the current directive and now setting a single time limit of 6 months, the proposal reduces consumers’ rights, by placing on them the burden of proving the existence of defects appearing at a later date.

7.7   Similarly, as regards the time limit and the burden of proof concerning non-conformity when adopting the proposal for a directive as a rule the requirement to submit a complaint will in practice shorten the time limit for submitting a complaint in all Member States that have not opted for this mechanism, as inferred in Article 28(4) and (5).

8.   Procedural shortcomings

8.1   The proposal contains a set of procedural rules, such as the burden of proof and the entitlement to bring proceedings, which should be more clearly defined in order to ensure coherent procedural arrangements. What is needed is regulation for the possibility of adopting precautionary measures, providing both for suspensive action and compensation or the publication of rulings.

8.2   With regard to collective actions, the reader is referred to the EESC's recent statements on the matter (19).

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Brussels, 16 July 2009.

The President of the European Economic and Social Committee

Mario SEPI

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(1)  OJ C 241, 7.10.2002.

1

(2)  OJ C 256, 27.10.2007.

2

(3)  OJ C 175, 27.7.2007 and OJ C 44, 16.2.2008.

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(4)  Idem footnote No 2.

4

(5)  The review process was described in the Communication entitled European Contract Law and the revision of the acquis: the way forward COM(2004) 651 final, OJ C 14, 20.1.2005.

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acquis

(6)  Preparatory Impact Assessment on the review of the consumer acquis/GP analytical report of 6.11.2007, produced by GHK/CIVIC Consulting/Bureau Van Dijk, available on the European Commission website.

6

(7)  See COM(2007) 447 final, of 25.7.2007: Second Progress Report on The Common Frame of Reference; see also the European Parliament resolution of 3 September 2008 on the Common Frame of Reference in the field of European contract law. Council Resolution 2863, 18 April 2008, p. 18.

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(8)  See Special EB No 298 (Consumer Protection in the Internal Market – 2008); Flash EB No 224 (Business attitudes towards cross –border sales and consumer protection – 2008); Flash EB No 250 – Confidence in the Information Society, from May 2009, as well as the Report on cross-border e-commerce in the EU SEC (2009)283 final from 5.03.2009.

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(9)  As demonstrated in the ECJ ruling of 23 April 2009 (Joined Cases C-261/07 and C-299/07).

9

(10)  See the examples of the creation of a consumer protection service, which only became independent from other subject areas in 1989, or the Consumers’ Consultative Committee.

10

(11)  A shared competence in the European Constitution and in Article 169 of the Lisbon Treaty. See OJ C 115/51, 9.05.2008.

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(12)  ‘A consumer means any natural person who is acting primarily for purposes which are not related to his or her trade, business or profession’. In Draft Common Group of Reference (DCFR) Outline Edition December 2008.

12

(13)  For example, Austria, Belgium, Denmark, Greece, Finland, Sweden, Spain and Portugal have broadened the concept of the consumer.

13

(14)  Cf. EC Consumer Law Compendium – Comparative Analysis edited by Prof. Hans Schulte-Nolke in co-operation with Dr. Christian Twingg-Flesner and Dr. Martin Ebers dated February 2008, prepared for the European Commission under Service Contract No 17.020100/04/389299: ‘Annotated Compendium including a comparative analysis of the Community consumer aquis’

14

o

(15)  Cf. Art. 3(1) of Directive 85/577/EC, an option taken by 18 Member States.

15

(16)  Regulation (EC) No 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1).

16

(17)  OJ C 175, 27.7.2007 and OJ C 162, 25.6.2008

17

(18)  Cf. EC Consumer Law Compendium – Comparative Analysis edited by Prof. Hans Schulte-Nolke in co-operation with Dr. Christian Twingg-Flesner and Dr. Martin Ebers dated February 2008, prepared for the European Commission under Service Contract No 17.020100/04/389299: ‘Annotated Compendium including a comparative analysis of the Community consumer aquis’

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(19)  OJ C 162, 25.6.2008.

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