----

Opinion of the European Economic and Social Committee on the Legal framework for consumer policy

(2006/C 185/13)

On 10 February 2005, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on the Legal framework for consumer policy.

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 28 March 2006. The rapporteur was Mr Pegado Liz.

At its 426th plenary session, held on 20 and 21 April 2006 (meeting of 20 April), the European Economic and Social Committee adopted the following opinion by 45 votes to 26, with two abstentions.

1.   Summary

2.   Introduction — purpose of the own-initiative opinion

3.   The issue at hand: a legal basis for consumer policy

4.   Is Article 153 an acceptable legal basis for Community policy for European consumers?

5.   Objectives, principles and yardsticks for establishing a legal basis for consumer policy

6.   Conclusion: proposal for a new legal basis

In the light of the above observations, the following proposal is made:

‘Article 153

1.   Community consumer policy shall ensure the pursuit of the following objectives:

2.   Community consumer protection policy shall aim at the highest level of protection. It shall be based on the following principles:

3.   Consumer protection requirements shall be taken into account in defining and implementing other Community policies.

4.   In formulating its consumer protection activities, the Community shall take account of:

Article 153a

1.   The Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, adopt such measures as are necessary to attain the objectives referred to in Article 153(1); these measures shall be subject to regular review in order to ensure that they continue to guarantee a high level of consumer protection.

2.   Harmonisation measures adopted pursuant to paragraph 1 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty and the Commission shall be notified of them.

3.   The Commission shall, within six months of the notification referred to in paragraph 3, decide whether to reject the national provision on the grounds that, among other things, it constitutes an obstacle to the functioning of the internal market. In the absence of a decision within this period, the provision shall be deemed to have been approved unless the complexity of the matter requires that the deadline be extended for a further period of up to one year, in which case the Member State shall be notified of that fact within the first six-month period.

4.   The Commission, in close cooperation with the Member States, shall ensure the effective application of the measures taken to promote consumers' rights and interests. In particular, the Member States shall be required to take the necessary steps to:

5.   Measures taken under this article and under Article 153 shall be considered as being addressed, within the meaning of Treaty Article 230, to the consumer associations duly recognised under Member States' national law or by the European Commission.’

Brussels, 20 April 2006.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

----

(1)  As is noted by the EESC in, inter alia, its opinion on Consumer policy post-enlargement of the European Union (OJ C 221, 8.9.2005), and also acknowledged by the European Parliament in its report on the promotion and protection of consumer interests in the new Member States (rapporteur: Dam Kristensen, EP 359.904/02-00). Moreover, better account could be taken of this aspect by the additional development of approaches for self-regulation, co-regulation and alternative dispute-settlement arrangements.

(2)  This is very evident in the new Directive 2005/29/EC of 11 May 2005 (OJ L 149, 11.6.2005) on unfair commercial practices, the Community action programme in the field of health and consumer protection 2007-2013 (COM(2005) 115 final) and the withdrawn proposal for a Regulation on sales promotion in the internal market (COM(2005) 462 final, 27.9.2005).

(3)  The following persons attended the hearing held on 14 October 2005: Mr Carlos Almaraz (UNICE), Professor Thierry Bourgoignie (University of Quebec in Montreal ), Ms Nuria Rodríguez (The European Consumers' Organisation), Mr Denis Labatut and Ms Kalliopi Spyridaki (UGAL - Union of Groups of Independent Retailers of Europe), Mr Jon-Andreas Lange (Forbrukerradet – The Consumer Council of Norway), Mr William Vidonja (CEA), Mr Patrick von Braunmühl (Verbraucherzentrale Bundesverband – vzbv) and Mr Hubert J.J. van Breemen (VNO NVW).

In addition, written responses to a questionnaire that was sent out to several dozen lawyers and academics across Europe were received from the following: Professor Thierry Bourgoignie (University of Quebec in Montreal), Professeur Jean Calais-Auloy (Faculté de Droit et des Sciences Economiques de Montpellier), Mr Stephen Crampton (Which?), Professor Mário Frota (APDC – Associação Portuguesa de Direito do Consumo), Ms Cornelia Kutterer (The European Consumers' Organisation), Mr Jon-Andreas Lange (Forbrukerradet – The Consumer Council of Norway), Ms René-Claude Mäder (CLCV – Consommation, Logement et Cadre de Vie), Professor Stephen Weatherill (ECLG), Professor Hans Micklitz (Institut für Europäisches Wirtschafts-und Verbraucherrecht e.V.Universität Bamberg), Ms Gaëlle Patetta (UFC–Que Choisir?), Professor Norbert Reich (Universität Bremen Fachbereich Rechtswissenschaften), UNICE and EuroCommerce.

(4)  In addition to this article, consumer policy is underpinned by various other provisions of the Treaty on European Union, not least the preamble under which the Member States commit themselves ‘to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market’ and ‘to establish a citizenship common to nationals of their countries’. Consumer policy is also underpinned by Articles 2 and 6 of the same Treaty, and by Articles 2; 3(1)(t); 17(2); 33(1)(e); 34(2) II; 75(3) II; 81(3); and 87(2)(a) of the Treaty establishing the European Community as amended by the Treaty of Nice.

(5)  Court of Justice (CJ), 5 October 2000, Case C-376/98, Federal Republic of Germany v Parliament and Council, ECR-I/8149, particularly nos 76 to 89.

(6)  On these questions see CJ, 20 October 1977, Case 29/77, Roquette Frères, ECR 1835.

(7)  Case C-376/98, Germany v Parliament and Council, ECR-I/8498.

----

APPENDIX I

to the opinion of the European Economic and Social Committee

The following amendments were rejected by the plenary session but received at least one-quarter of the votes cast:

Point 1.3

Delete the entire point.

Reason

Point 1.3 contains a strong statement saying that ‘it soon became apparent that the Maastricht Treaty, Article 129a of the Treaty was an inadequate basis for developing a fully-fledged policy in this field.’ This serious criticism is not supported by any evidence.

Outcome of the vote

For: 23

Against: 39

Abstentions: 5.

Point 1.4

Delete the entire point.

Reason

Point 1.4 contains a strong statement saying that ‘the non-application of this legal basis over the years highlighted its inadequacies as a suitable and effective legal basis for promoting a genuine policy for the protection of consumer interests at Community level.’ This serious criticism is not supported by any evidence.

Outcome of the vote

For: 23

Against: 39

Abstentions: 5.

Point 1.5

Delete the entire point.

Reason

Point 1.5 contains a strong statement saying that ‘the changes introduced by the new Article 153 of the Amsterdam Treaty did not address these shortcomings. Nor did the texts proposed with a view to the adoption of the European Constitution’. This serious criticism is not supported by any evidence.

Outcome of the vote

For: 23

Against: 39

Abstentions: 5.

Point 4.6.1

Delete the entire point.

Reason

This point making consumer policy a competence for the EU would make it impossible to have better rules for consumers in the Member States.

Outcome of the vote

For: 26

Against: 35

Abstentions: 8.

Point 4.6.7

Delete the entire point.

Reason

It is not appropriate to give consumer associations direct access to the Court of Justice, as any interest group could then make a similar demand on behalf of its members. Granting such a right could give rise to unacceptable situations (class actions in the USA being a case in point).

Outcome of the vote

For: 30

Against: 38

Abstentions: 4.

Point 5.4.1

Delete as follows:

Reason

It is not appropriate to give consumer associations direct access to the Court of Justice, as any interest group could then make a similar demand on behalf of its members. Granting such a right could give rise to unacceptable situations (class actions in the USA being a case in point).

Outcome of the vote

For: 30

Against: 40

Abstentions: 3.

Point 5.4.4

Delete the last sentence as follows:

Reason

It is not appropriate to give consumer associations direct access to the Court of Justice, as any interest group could then make a similar demand on behalf of its members. Granting such a right could give rise to unacceptable situations (class actions in the USA being a case in point).

Outcome of the vote

For: 27

Against: 42

Abstentions: 4.

Point 5.4.6

Delete the entire point.

Reason

It is not appropriate to give consumer associations direct access to the Court of Justice, as any interest group could then make a similar demand on behalf of its members. Granting such a right could give rise to unacceptable situations (class actions in the USA being a case in point).

Outcome of the vote

For: 26

Against: 44

Abstentions: 2.

Point 6

Delete the entire point.

Reason

Point 6. contains an ambitious proposal for a new legal basis for consumer protection policy. As it was demonstrated on previous points 1.3, 1.4, 1.5, the text of the opinion is missing sufficient amount of evidence that such changes are necessary or needed. Instead of initiating an extensive amendment of the current legal basis for consumer protection policy the opinion should be much more strengthened in focusing on real arguments why the new legal basis should be the priority when it will come to the next revision of the Treaty text.

Outcome of the vote

For: 23

Against: 39

Abstentions: 5.

Article 153

Delete the last indent of Article 153(4) as follows:

‘effective redress in cases of infringement of consumers' rights or interests, including through recognition of collective actions.’

Reason

It is not appropriate to give consumer associations direct access to the Court of Justice, as any interest group could then make a similar demand on behalf of its members. Granting such a right could give rise to unacceptable situations (class actions in the USA being a case in point).

Outcome of the vote

For: 27

Against: 44

Abstentions: 2.

Article 153a

Delete point 4.

Reason

The text would make consumers policy subordinate to the rules of the internal market. This is not according to the contents of the rest of the opinion.

Outcome of the vote

For: 27

Against: 34

Abstentions: 14.

----

APPENDIX II

to the opinion of the European Economic and Social Committee

The following passage from the section opinion was rejected in favour of an amendment adopted by the assembly, but received at least a quarter of the votes cast:

Point 6, Article 153a

Outcome of the vote

31 votes in favour of deleting this point

24 against

14 abstentions.

----