EN Official Journal of the European Union C 18/100

Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the enforcement of the consumer acquis’

COM(2009) 330 final

2011/C 18/18

Rapporteur: Mr PEGADO LIZ

On 2 July 2009 the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the enforcement of the consumer acquis

COM(2009) 330 final.

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 2 March 2010.

At its 462nd plenary session, held on 28 and 29 April 2010 (meeting of 29 April), the European Economic and Social Committee adopted the following opinion by 119 votes to 10 with three abstentions:

1. Conclusions and recommendations

1.1 The Committee welcomes the Commission’s initiative in which, for the first time, it sets out its concerns about the application of the Community acquis on consumer protection.

1.2 It would point out, however, that - from a strictly legal point of view - the application of Community legislation on consumer rights is not substantially different from the application of Community legislation in general. In this connection, it would refer to the various opinions issued on the matter.

1.3 Nevertheless, it recognises that - from a social point of view - the unfavourable position in which consumers find themselves in general in consumer affairs, and which, as is well-known, puts them in a weak position in a legal relationship that, by its very nature, is unbalanced, does warrant particular attention to the way that this legislation is applied in the different various national legal systems.

1.4 Also from an economic point of view, the clear difference in the way that this legislation is applied in the different Member States is likely to create distortions in the internal market and jeopardise the smooth operation of healthy, fair competition.

1.5 In spite of the progress referred to in points 2.1, 3.14, 4.2, 4.3, 4.4, 4.5 and 4.6, the EESC does regret the fact that here the Commission has wasted an opportunity to submit an informative, structured paper on the actual situation in the application of the Community acquis on consumer protection, to define strictly and precisely the nature and fundamental parameters of the application of the law and to make progress with a list of proposals for well-defined, feasible measures for improving the situation in the near future.

1.6 It is disappointed to see that the Commission has not even concluded that there are in fact serious shortcomings in the application of the Community acquis in this area, which it neither quantifies nor qualifies and the causes of which it neither lists nor analyses.

1.7 It is likewise disappointing that, on the contrary, the Commission has gone no further than stating that which has already been agreed, missing out on a political opportunity, issuing a series of unfounded opinions of no practical value and inexplicably not announcing any new initiatives, without even querying what financial resources would be necessary.

1.8 Even the positive developments in the guidelines already defined in previous strategy documents are missing a link and therefore they lack in consistency. It would have been valuable, in particular, to take into account the positive results from applying Regulation (EC) 2006/2004 (1) and its well-drafted implementation report, which it is essential to read at the same time in order to understand the Communication.

1.9 The Committee regrets the fact that the Commission has not taken advantage of this opportunity to take on board the frequently expressed request that recommendations on the principles applying to the bodies responsible for extra-judicial settlement of consumer litigation be turned into directives or regulations which are mandatory in nature.

1.10 The EESC thoroughly recommends that the Commission take another look at the enforcement of the consumer acquis in the near future, this time in the broader framework of an instrument based on wider research and consultation of all stakeholders, such as a White Paper, on the basis of which it can define a genuine Community-wide policy strategy for this area in greater depth.

2. Introduction

2.1 By drawing attention to the enforcement of the Community acquis on consumer protection, the Commission seems - for the first time - to place the matter of the effectiveness of legislation at the heart of its concerns, and this is to be welcomed. It demonstrates that, over and above ‘law in the books’, it is also interested in ‘law in action’, i.e. the way in which legal standards are accepted, interpreted and applied by those concerned, namely, public authorities - particularly the courts - businesses and the public in general.

2.2 For many years, this concern has been a key point made in various EESC opinions, which have repeatedly drawn attention to the importance thereof and put forward recommendations and suggestions for action (2) to be taken, including those contained in the following own-initiative opinions: ‘Consumer policy post-enlargement’ (3), ‘How to improve the implementation and enforcement of EU legislation’ (4) and ‘The proactive law approach: a further step towards better regulation at EU level’ (5).

2.3 Against this background, it is essential to distinguish between voluntary compliance with the law by the parties targeted by the rules - whose motivation and incentives may be highly diverse, sociologically speaking - and the imposition or enforced implementation of the law, in principle by the courts in their capacity as judicial power, but also by other administrative bodies with the power to enforce compliance or punish non-compliance.

2.4 From a social - as well as economic and legal - point of view, the different situations warrant different ethical assessments and have distinct behavioural components; this has to be taken into account when generally assessing compliance and implementation in any branch of law - in this case, Community legislation on consumer affairs.

2.5 The EESC agrees with the Commission that one of the objectives - albeit not the only one - of consumer policies will be ‘to create an environment in which consumers can purchase goods and services without having regard to national borders’. However, the EESC does not deem consumer policy to be subsidiary to completion of the single market; neither does it consider consumers to be mere instruments for the ‘operation of the single market’. Unlike the Commission, the EESC therefore considers that the directive on unfair commercial practices, if deemed to be a ‘good example’, has to be seen as a good example of ‘worse lawmaking’ (6), since it has given rise to chaotic implementation in most Member States. Rather, it regrets the fact that such an ‘example’ has been followed in recent directives on consumer credit and time-share and is still to be found in the directive on ‘consumers’ rights’.

2.6 It is with this in mind - placing the definition of consumers’ rights in the broader framework of citizens’ rights - that the EESC, like the Commission, feels that effective application of the consumer acquis is a priority for consumer policy, in so far as only by applying the law effectively can the underlying values be protected.

3. General comments

3.1 Contrary to what its title would indicate at first glance, the Communication focuses on 1) the end result of the application of Community law, more precisely the way in which public authorities comply with and enforce compliance with national rules flowing from the transposition or incorporation of Community law, and 2) the role that the Commission can play here.

3.2 In addition, this Communication should only be read in close conjunction with the well-written report published on the same day on ‘the application of Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws’ (7), which, although not sent to the EESC for an opinion, should be considered as the basis for the Communication; it is important to stress the positive impact of the implementation of this regulation in Member States.

3.3 Even considering the limited scope of the Communication, the EESC feels that, in order for it to be framed correctly, the Commission should provide concrete data on the transposition and application of the Community acquis in EU Member States; such as those contained in the Annual Reports on monitoring the application of Community law (8) and in separate communications referring to other directives (9).

3.4 Moreover, instead of simply listing the existing mechanisms, the Commission should have carried out an in-depth critical analysis of the way these mechanisms work and their outcome in the light of the information collated for the Consumer Markets Scoreboard (10), set out in the final report from the Health and Consumers DG entitled ‘Ex-post evaluation of the impact of the Consumer Policy Strategy 2002-2006 on national consumer policy’ of 22.12.2009 (11), following the guidelines set out in its own ‘Communication on better monitoring of the application of Community law’ (12). Besides, it is not even clear from its text whether the Commission considers there to be shortcomings in the application of the Community acquis requiring new measures and if so, which ones.

3.5 Quite the opposite, the Committee believes that there is widespread poor application of the Community acquis in the Member States, referred to extensively and caused, inter alia, by the following: a) the way in which many Community directives are drafted (13), out of line with the standards of ‘better lawmaking’ (14), particularly as regards ex-ante assessment studies; b) the over-hasty manner in which standards - badly designed and drafted from the outset - are transposed into national legislation; c) the incorrect or incomplete incorporation of Community rules into national legislation, where they are often deemed to be undesirable or to run contrary to national customs and interests; d) the lack of political will on the part of national authorities to comply and ensure compliance with rules which are not seen as ‘ fitting in’ with the body of national law and national traditions and the persistent tendency to add new, unnecessary regulatory mechanisms to Community rules or to choose some but not other parts of these rules (the well-known phenomena of ‘gold-plating’ and ‘cherry-picking’); e) the lack of basic preparation and specific training on the part of national authorities in order to understand and ensure application of the Community acquis, particularly in relation to consumer protection; f) the poor operation of some courts and lack of preparation on the part of some judges and other players in the judicial system (lawyers, court officials, etc), which often leads to erroneous application or lack of application of transposed laws, and very often to the application of ‘parallel’ rules under national legislation (15); g) the lack of broad administrative cooperation measures to involve civil society organisations, particularly consumer protection associations.

3.6 In this domain, the EESC has repeatedly drawn attention to the fact that discussions on the (non-) application of the Community acquis, should place emphasis on voluntary compliance with laws - spontaneous or induced.

3.7 This means above all that, in matters pertaining to its competences, the Commission will have to focus its efforts and initiatives on improved information and training for consumers and professionals and their motivation and incentives to comply with Community law transposed into national legislation.

3.8 Commission action should also target, as a priority, information and training for national public authorities, in particular those with direct responsibilities for the application of Community law in the Member States. Here, priority should be given to information and training for judges and other public prosecutors in general, whose responsibility it is ultimately to interpret and apply the law to specific cases which are the subject of dispute.

3.9 Unlike the Commission, the EESC does not however agree that mere information is enough to ‘empower’ consumers. On the contrary, the EESC has drawn attention to the need to provide consumers with proper resources and instruments to ensure that the law is applied effectively and their rights efficiently safeguarded.

3.10 In the light of the above, the role of self-regulation - and particularly co-regulation - takes on particular importance, as long as the parameters for the credibility of voluntarily accepted or negotiated systems between interested parties are guaranteed and safeguarded, in order to warrant the trust of all parties concerned.

3.11 Mediation, conciliation and arbitration systems, which complement the judicial system, should also receive special attention from the Commission, and their credibility and efficiency should be consolidated. Accordingly it is strange that the Commission has, once again, not taken on board the EESC’s frequent request that the Recommendations on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (16) be turned into generally binding directives or regulations. The situation becomes particularly serious when, in the absence of harmonisation, the different Member States’ legal traditions lead to quite different situations developing in the provision of alternative means of dispute settlement.

3.12 However, it is in the domain of civil procedural law that there is more of a gap in the Commission’s initiative; despite progress achieved by DG Justice initiatives (17) - especially as regards procedures which take into account the specific nature of the collective rights and interests of consumers - this gap has not been plugged by the Green and White Papers on non-compliance in anti-trust measures (18) after more than 20 years of ‘studies’ and ‘consultations’. Furthermore, with the recent Green paper on Consumer Collective Redress (19), there is even less prospect of securing the political will to forge ahead, as was clearly demonstrated in the recent EESC opinion (20).

3.13 For this reason, it was essential that the Commission, in its capacity as guardian of the Community’s legal order, attach particular importance to how it exercised its discretionary -but not arbitrary - powers (21) to deal with infringements under Article 211 of the Treaty, in particular ‘the necessary internal organisation measures to allow it to carry out its task effectively and impartially, in accordance with the Treaty’ (22), namely priority criteria, assessment mechanisms, examination of complaints, specific instruments to detect infringements unofficially, means to improve the action of national courts and other complementary instruments (SOLVIT, FIN-NET, ECC-NET, alternative and extra-judicial means).

3.14 In the same vein, although not a direct indicator of how legislation is being implemented, complaints submitted by consumers do constitute an important indicator of how those parties targeted by the legislation perceive it, as clearly demonstrated in the second Consumer Markets Scoreboard (23). For this reason, the EESC welcomes the Commission’s initiative, along the lines of the EESC’s previous recommendations, to start developing a harmonised method for dealing with consumer claims and complaints (24).

4. Specific comments

4.1 The EESC notes that, in the Communication, the Commission is reiterating existing priorities; it is not adding anything new to the 2005-2010 Priority Action programmes (25), doing no more than confirming that which is set out in the 2007-2013 EU Consumer Policy Strategy (26), without presenting any innovative measures. To that extent, the EESC can do no more than reiterate its comments made in previous opinions (27).

4.2 The EESC welcomes the fact that the Commission finally seems to be willing to use Article 153 of the Treaty for new initiatives to consolidate cooperation measures between Member States. However it does not identify which new initiatives it is envisaging other than the ones it has already launched and on which the EESC has commented, namely the directive on General Product Safety and the New Legislative Framework (NLF) (28) and the RAPEX system, particularly as regards the safety of toys (29); special mention should however be made of the weekly publication of the list of dangerous consumer products logged under RAPEX.

4.3 As regards the CPC network, the EESC fully subscribes to the well-drafted Commission report on this subject referred to above, the difficulties encountered and its conclusions, as well as the results of the second Consumer Market Scoreboard, particularly as far as ‘enforcement’ is concerned (30).

4.4 One aspect to consolidate would be the publicity given to measures carried out by the Commission and national authorities for monitoring compliance with transposed laws by public and private bodies targeted by the legislation so as to raise the profile of consumer protection policy, and as a way of deterring detrimental practices and giving consumers a greater feeling of safety.

4.5 The EESC welcomes the initiative setting out new ways to communicate market information to consumers, so that they can be better informed and thus make responsible decisions; it would be valuable for the Commission to specify the way in which this initiative is to be implemented. Moreover, the database on unfair commercial practices is eagerly awaited; it is only to be hoped that it will not suffer the same fate as CLAB (Unfair Contract Terms database).

4.6 As regards the proposed definition of ‘standard’ interpretations of Community legislation for ‘national implementing authorities’, the EESC welcomes the explanation provided by Commission representatives at study group meetings to the effect that this initiative is only directed at administrative authorities, not judicial ones, and does not throw into question the exclusive jurisdiction of the Court of Justice under the preliminary ruling procedure in order to set down interpretation of Community law.

4.7 In the area of international cooperation with third countries, the Communication does not present concrete data regarding what will have been done, nor does it identify the strategy proposed for the future, namely its extension to cover other international bodies and organisations dealing with regional economic integration. Thus, the EESC expresses its concern about efficient monitoring of compliance with the Community acquis on products from third countries, in terms of the low profile of such monitoring and how transparent its results are.

4.8 Lastly, the EESC expresses concern about the adequacy of the financial resources available to the Commission to carry out this action, given the reduced budget for consumer policy, a situation potentially made worse in the new functional structure of the Commission, because these subjects are divided up between two directorates-general.

Brussels, 29 April 2010. The President of the European Economic and Social Committee Mario SEPI

(1) OJ L 364 of 9.12.2004, p. 1.

(2) The opinion currently in the pipeline on the 25th Annual report from the Commission on monitoring the application of Community law (2007) COM(2008) 777 final, (INT/492) warrants particular attention.

(3) OJ C 221 of 8.9.2005, p. 153.

(4) OJ C 24 of 31.1.2006, p. 52.

(5) OJ C 175 of 28.7.2009, p. 26.

(6) As the EESC foresaw in its Opinion (OJ C 108 of 30.4.2004, p. 81).

(7) COM(2009) 336 final.

(8) Cf. 25th Annual Report from the Commission on monitoring the application of Community law (2007) COM(2008) 777 final, and SEC (2008) 2854 and 2855, and the EESC Opinion INT/492 in the pipeline.

(9) For example COM(2006) 514 final on Distance Contracts (EESC Opinion: OJ C 175 of 27.7.2007, p. 28); COM(2007)210 final on certain aspects of the sale of consumer goods and associated guarantees (EESC Opinion: OJ C 162 of 25.6.2008, p. 31); COM(2007) 303 final on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange (EESC Opinion: OJ C 44 of 16.2.2008, p. 27); COM(2008) 9 final on the safety of toys (EESC Opinion: OJ C 77 of 31.3.2009, p. 8).

(10) COM(2009) 25 final.

(11) Compiled by Van Dijk Management Consultants.

(12) COM(2002) 725 final.

(13) In the Own-Initiative Opinion (OJ C 24 of 31.1.2006, p. 52) the EESC ‘argues that better lawmaking and implementation and enforcement are closely linked: a good law is an enforceable and enforced law’.

(14) It is, to say the least, surprising that the inter-institutional agreement entitled ‘Better Lawmaking’, concluded between the EP, Council and Commission (OJ C 321 of 31.12.2003), is not even mentioned in the Commission Communication.

(15) One well-known example is the widespread lack of application of Directive 85/374/EEC (OJ L 210 of 7.8.1985) amended by Directive 1999/34/EC (OJ L 141 of 4.6.1999) on producer liability, neglected in favour of the corresponding national legislation, as was clearly noted at the conference organised by the Centre de Droit de la Consommation (Centre for Consumer Law) in Louvain-la-Neuve on 23-24.3.1995 on ‘Council Directive 85/374/EEC concerning liability for defective products: ten years on’.

(16) Recommendations of 30.3.1998 and of 4.4.2001 to be found in OJ L 115 of 17.4.1998 and OJ L 109 of 19.4.2001 respectively.

(17) To be highlighted in this connection are: Regulation (EC) No 861/2007 establishing a European Small Claims Procedure, OJ L 199 of 31.7.2007, p. 1); COM(2006) 618 final on Improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts; and COM(2008)128 final on the transparency of debtors’ assets; these are, however, mainly aimed at facilitating the collection of payments by businesses, and not for the benefit of consumers (Cf Opinions OJ C 10 of 15.1.2008, p. 2 and OJ C 175 of 28.7.2009, p. 73).

(18) COM(2005) 672 final and COM (2008) 165 final; see Opinions in OJ C 324 of 30.12.2006, p. 1 and OJ C 228 of 22.9.2009, p. 40.

(19) COM(2008) 794 final.

(20) EESC Opinion 586/2009 (INT/473) of 5.11.2009; on this subject also see the Own-initiative Opinion (OJ C 162 of 25.6.2008, p. 1) on ‘Defining the collective actions system and its role in the context of Community consumer law’.

(21) Cf. For all of these, see the Judgment dated 01.6.1994, Commission/Germany, C-317/92 and the Judgment dated 10.5.1995, Commission/Germany, C-422/92.

(22) COM(2002) 725 final.

(23) COM(2009) 25 final and mainly SEC (2009) 76, part 1.

(24) COM(2009) 346 final (CESE 97/2010).

(25) Namely the need to carry out a more in-depth analysis of each market, establishing common methodologies for processing data for the purposes of comparison and creating indicators on the implementation of legislation.

(26) COM(2007) 99 final.

(27) OJ C 95, of 23.4.2003 and OJ C 162 of 25.6.2008, p. 20.

(28) Regulation EC 765/2008 and Decision EC 762/2008, EESC Opinion in OJ C 120 16.5.2008, p. 1.

(29) COM(2008) 9 final, EESC opinion in OJ C 77 of 31.3.2009, p. 8.

(30) SEC(2009) 76 final, Part 3.