Opinion of the Economic and Social Committee on the 'Proposal for a European Parliament and Council Directive on injunctions for the protection of consumers' interests`() (97/C 30/27)

On 28 March 1996 the Council decided, in pursuance of Article 100a of the Treaty establishing the European Community, to ask the Economic and Social Committee for an Opinion on the above-mentioned proposal.

The Section for Protection of the Environment, Public Health and Consumer Affairs, which was instructed to prepare the Committee's work on the matter, drew up its Opinion on 16 July 1996 (Rapporteur: Mr Ramaekers).

At its 338th Plenary Session held on 25 and 26 September 1996 (meeting of 25 September 1996), the Committee adopted, by 93 votes to four, with ten abstentions, the Opinion set out below.

1. Introduction

1.1. The proposal translates into action the goals set out in the Commission's Green Paper on access of consumers to justice and meets the ESC's wishes.

In its Opinion () on the Green Paper (), the ESC expressed regret that 'the Commission has not now used this opportunity to submit concrete proposals for action within the scope of its specific powers, particularly for exploring the potential offered by Article 129a of the Treaty of Rome`.

1.2. The proposal under review, put forward by the Commission as a 'priority action` seeks to coordinate national provisions in respect of injunctions designed to block a range of illegal commercial practices and provides for mutual recognition of the entities qualified to bring such action. It should be stressed that the proposal allows professional organisations to bring injunction proceedings.

1.3. Although at the present time most national legal systems make provision for injunctions, the effectiveness of such measures is jeopardized whenever the illegal practice concerned originates in a different country from that in which its effects are felt.

1.4. The Directive's scope is confined to practices governed by national laws which have been harmonized under EU Directives.

1.5. The principle of mutual recognition implies that a 'qualified entity` (i.e. a person having an interest in bringing an action) in country A may either apply directly to a court in country B or initiate injunction proceedings via a qualified entity in country B.

1.6. The draft Directive sets out minimum provisions. More favourable national provisions may be maintained.

1.7. The legal basis is Article 100a.

2. General Observations

2.1. The ESC welcomes the proposal which accords with the wishes it expressed in its Opinion on the Green Paper on access of consumers to justice:

'The Committee considers that the Commission should rapidly submit legislative proposals on the following:

a) definition of common principles and procedures for uniform proceedings for settling transfrontier consumer disputes and actions for an injunction;

b) definition of basic rules for the standardization of collective or joint actions relating to consumer conflicts at Community level.`

2.2. The proposal may help to boost consumer confidence in the internal market by establishing appropriate machinery for combatting cross-frontier illegal trade practices.

2.3. A right is not effective unless it can be exercised. The proposal under review is thus part of the process of securing recognition of basic civil rights, since the right to initiate legal proceedings constitutes one of these fundamental rights.

2.4. As stated in point 2.1 above, the ESC called upon the Commission to take wider-ranging measures than those contained in the proposal under review. This proposal may be regarded only as a first step towards improving consumers' access to justice.

The main aim of the proposal is to enable the courts to order the cessation of acts which constitute an infringement. Consideration should be given to the case for liability actions, which would be an effective complement to injunctions.

The ESC does, however, take note of the proposals set out in the Commission's communication on an action plan on the access of consumers to justice and the settlement of consumer disputes in the internal market (COM(96) 13 final), on which it wishes to be consulted.

2.5. The Committee has a number of observations and criticisms in respect of the proposal. These observations are set out below.

3. Specific comments

3.1. Legal basis

The legal basis is Article 100a, i.e. measures taken in pursuance of the establishment of the internal market.

Assuming that the aim of the proposal seeks to strengthen consumer protection, Article 129a would also appear to constitute an appropriate legal basis.

3.2. Article 1

Injunction proceedings may be brought only in respect of infringements of the Directives listed in the Appendix.

This field of application is very limited as many Directives which are not listed in the Appendix are concerned - either in whole or in part - with consumer protection, e.g. the Directive on product safety and the Directives on banking and insurance.

The ESC urges that the right to bring an action be applicable in respect of infringements of any provision of EU legislation transposed into national law where (a) such a provision is designed, either directly or indirectly, to protect the consumer, and (b) the infringement of such a provision may be effectively redressed by issuing an injunction. It will be up to the national and, where appropriate, Community courts to decide whether the disputed standard protects consumers or not.

3.3. Article 4

Member States are entitled to restrict the application of the principle of mutual recognition since they have the power to require a qualified entity from a country A to take court proceedings via a qualified entity from country B. This restriction is open to criticism. The principle of mutual recognition would be vitiated if the requirement to use an intermediary were to be enforced. Furthermore, the requirement to act via an intermediary will substantially extend the amount of time required to bring injunction proceedings and this is the very problem which the Commission is seeking to tackle.

3.4. Article 5

The Member States may make provision for the qualified entity to issue a prior notification. Assuming that such a measure will not have the effect of a delaying tactic but will make it possible to put an end rapidly to the alleged infringement, the Committee endorses the measure.

3.5. Article 6

The Committee expresses the wish that the Commission also present the report on the application of the Directive to the ESC.

Brussels, 25 September 1996.

The President of the Economic and Social Committee

Carlos FERRER

() OJ No C 107, 13. 4. 1996, p. 3.

() OJ No C 295, 22. 10. 1994.

() COM(93) 576 final, 18. 5. 1994.