Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws (“the regulation on consumer protection cooperation”)’ (COM(2003) 443 final – 2003/0162 (COD))
Date: 2004-01-29
Institutions: European Economic and Social Committee
Subjects: EU law - national law, approximation of laws, competition law, consumer protection, legal cooperation, single market

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the
European Parliament and of the Council on cooperation between national authorities responsible
for the enforcement of consumer protection laws (“the regulation on consumer protection coop-
eration”)’

(COM(2003) 443 final – 2003/0162 (COD))

(2004/C 108/18)

On 1 August 2003 the Council decided to consult the European Economic and Social Committee, under
Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

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 16 December 2003. The rapporteur was Mr
Hernández Bataller.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 29 January), the European Economic
and Social Committee adopted the following opinion with 68 votes in favour and four abstentions.

1. Introduction

2. The Proposal for a Regulation

The Green Paper on European Union Consumer Protec-
1.1
tion (1) argued that there was a need for a legal framework for
cooperation between public authorities responsible for the
enforcement of consumer protection laws.

The overall goals of the regulation are to ensure the
2.1
smooth functioning of the internal market and the effective
protection of consumers participating in this market.

In the Follow-up Communication to the Green Paper (2),
1.2
the Commission undertook to present a proposal for such a
legal instrument.

2.1.1
achieve these goals:

The proposed regulation has two specific objectives to

The

recent

Internal Market Strategy 2003-2006 (3)
1.3
argued that better enforcement was needed to ensure consumer
confidence in the internal market and identified this proposal
as a priority action.

Each Member State has developed an enforcement
1.4
system adapted to its own laws and institutions. These systems
have come into being in order to tackle purely domestic infrin-
gements and are not fully adapted to the challenges of the
internal market. Domestic authorities lack the power to investi-
gate infringements outside their jurisdiction.

1.5
The result is a system of enforcement in the internal
market that has not adapted sufficiently to meet the demands
of this market and is not, at present, able to meet the challenge
posed by the unfair practices of economic operators seeking to
exploit the potential of the Internet in particular.

1.6
The Commission therefore believes that consistent and
effective enforcement of the various national consumer protec-
tion laws is essential to the good functioning of the internal
market, the elimination of distortions of competition and the
protection of consumers.

(1) COM(2001) 531 final.
(2) COM(2002) 289 final.
(3) COM(2003) 238 final

— to provide for cooperation between enforcement authorities
in dealing with intra-Community infringements that disrupt
the internal market. This objective is designed to ensure
that enforcement authorities can cooperate efficiently and
effectively with their counterparts in other Member States;

— to contribute to improving the quality and consistency of
enforcement of consumer protection laws and to the moni-
toring of the protection of consumer economic interests.
This objective recognises that the EU can contribute to
through common
raising the standard of enforcement
projects and the exchange of best practice on a wide range
of information, education and representation activities. It
also acknowledges the EU's contribution to monitoring the
functioning of the internal market.

2.2
These goals and objectives have determined the choice
of legal basis and instrument. The Commission has opted for
Article 95 of the Treaty as a legal basis.

2.3
The scope of the regulation is limited to intra-Com-
munity infringements of EU legislation that protects consumers'
interests. The scope of the regulation will be enlarged when the
proposed framework directive prohibiting unfair commercial
practices enters into force.

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2.4
Competent authorities are at the heart of the proposed
regulation and must be designated by the Member States. The
proposal also provides for the designation by each Member
State of a single liaison office to ensure proper co-ordination
between the competent authorities nominated in each Member
State.

countries under bilateral agreements.

2.4.1
Competent authorities are defined as public authorities
with specific consumer protection enforcement responsibilities.
The proposal also ensures that only those authorities with a
minimum of common investigation and enforcement powers
can be designated as competent authorities.

2.6
The Community's role is limited to supporting measures
which raise the standard of enforcement generally and improve
the ability of consumers to enforce their rights, encouraging
the exchange of best practice and co-ordinating national efforts
so as to avoid duplication and a waste of resources.

2.4.2
The proposal does not in any way change or diminish
the role played by consumer organisations in enforcing legisla-
tion, in particular with regard to bringing cross-border injunc-
tions.

2.4.3
The proposed regulation puts in place a network of
competent authorities and a framework for mutual assistance
that complements those which exist already in each Member
State or which exist on a sectoral basis at Community level.
The proposed network is designed to provide an enforcement
solution to give priority treatment to the most serious cases of
dishonest cross-border practices, especially those that seek to
exploit the freedoms of the internal market to harm consu-
mers.

The competent authorities will be appointed by the Member
States to ensure that account is taken of constitutional provi-
sions governing consumer protection enforcement. Member
States that do not already have competent public authorities in
this area do not necessarily need to set up new public authori-
ties, as the limited responsibilities of the proposed regulation
can be carried out by existing public authorities.

The effectiveness of

2.5
the enforcement network estab-
lished in the proposal depends upon the reciprocal rights and
obligations of mutual assistance.

2.7
The proposal provides for the submission of statistics on
all complaints, the establishment of an up-to-date database for
consultation by the authorities, the coordination of enforce-
ment activities and administrative cooperation.

The proposal also provides for an Advisory Committee
2.8
to be set up to assist the Commission in implementing the
practical procedures for the operation of the regulation. This
Committee will be composed, in particular, of representatives
of the competent authorities.

The basis of mutual assistance is free and confidential
2.5.1
information exchange between competent authorities. The
proposal puts in place a system of exchange on request and,
just as importantly, spontaneous exchange.

3. General comments

2.5.2
If the information exchanged confirms the existence of
an intra-Community infringement, the proposal requires that
competent authorities act to bring about cessation of the infrin-
gement without delay.

2.5.3
The general principle is that competent authorities can
act against traders within their jurisdiction regardless of the
location of the consumers involved.

2.5.4
tion to be exchanged with competent authorities of

The proposal also sets out the possibility for informa-
third

3.1
The Committee shares the objectives and goals of the
Commission proposal. To this end, in previous opinions (4) it
urged the Commission to meet its commitment to prioritise the
effective enforcement of existing legislation and co-operation
between enforcement bodies, as a first step in improving
current
In any
levels of cross-border consumer protection.
event, the proposal does not exclude the possibility of bringing
civil actions to ensure enforcement.

(4) EESC Opinion 344/2002 on the Green Paper on European Union
Consumer Protection. OJ C 125 of 27.5.2002 and EESC Opinion
on the Communication from the Commission to the European
Parliament,
the European Economic and Social
Committee and the Committee of the Regions on consumer policy
strategy 2002-2006. OJ C 95 of 23.4.2003.

the Council,

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According to the actual proposal,

3.2
the legal basis is
Article 95 of the EC Treaty. However, this article only estab-
lishes provisions for the harmonisation of legislation relating to
the establishing and functioning of the internal market. Given
the objective laid down in the Commission proposal, namely to
establish an effective system for improving the protection of
consumers' economic interests, the EESC regrets that Article
153 is not mentioned as a legal basis in the actual proposal
and calls on the Commission to consider how more use could
be made of this article.

3.2.1
The EESC agrees with the Commission on the need to
set up at least one competent authority in each Member State,
and that
the
this authority should be a public one,
following reasons:

for

— only public authorities can be given the investigation
powers needed to prevent cross-border infringements being
committed,

— public authorities are the best placed to guarantee confiden-
tiality and ensure that such investigations are carried out
properly,

— public authorities are the only authorities that can guar-

antee protection for all consumers, and

— this will facilitate information exchange and help put an

end to cross-border infringements.

3.2.2
more active role and take part in coordination meetings.

In the EESC's view, the Commission should play a

As

3.2.3
the proposal does not provide any specific
measures on resolving disagreements that may arise between
Member States when providing assistance,
the Commission
should act as mediator and provide the administrative solutions
needed to facilitate this assistance. This is particularly important
given that the proposal will be implemented after enlargement,
which is expected to exacerbate problems relating to compli-
ance with Article 10 of the EC Treaty since administrative
the new countries are not sufficiently
cultures in most of
familiar with such practices.

The proposal is unclear regarding the conditions for
3.2.4
reimbursement of costs or
losses incurred as a result of
measures held to be unfounded by a court as far as the
substance of the intra-Community infringement is concerned. It
needs to specify that such court decisions must be final judg-

ments and not therefore open to appeal. What happens if the
requested Member State considers it to be inadmissible to bring
an appeal but the applicant Member State thinks otherwise?
The proposal does not seem to provide for such a situation,
which is not merely hypothetical.

3.2.5
As regards requests for mutual assistance, a request
may be refused if it would impose a disproportionate adminis-
trative burden in relation to the scale of the intra-Community
infringement,
in terms of the potential consumer detriment.
This would seem to suggest that ‘de minimis’ infringements of
consumer protection could be committed in other Member
States without any penalty whatsoever being imposed. The
EESC fears that such situations could arise as, exceptional cases
aside, consumer complaints are usually for
relatively low
amounts.

3.2.6
The proposal stipulates that a request for mutual assis-
tance may be refused if the request is not well founded. This
solution is excessively rigid; in such cases, consideration should
be given to allowing the request to be modified by a given
deadline, before it is refused altogether.

3.2.7
to appeal
comply with a request for assistance to be unfounded.

Nor does the proposal grant a Member State the right
it considers another Member State's refusal to

if

3.3
In the interests of transparency and without prejudice to
the deletion of confidential data, the database of statistics on
consumer complaints should be accessible to the public, in par-
ticular to the most representative employers' associations and
to consumers' associations that are qualified to bring cross-
border injunctions (5), and to universities and research centres.

3.4
The EESC welcomes the proposed enforcement coordi-
nation. However, it believes that before officials are exchanged,
they should be given appropriate training on the legislation in
the ‘host’ Member State to avoid, as far as possible, problems
relating to civil liability.

3.5
the
As regards administrative cooperation measures,
proposal stipulates that these will be coordinated between the
Commission and the Member States, but fails to take account
of the relevant role that could be played by civil society in
carrying out such activities, in particular employers' and consu-
mers' associations.

(5) Article 3 of Directive 98/27/EC of the European Parliament and of
the Council of 19.5.1998 on injunctions for the protection of
consumers' interests. OJ L 166 of 11.6.1998.

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3.6
The Standing Committee envisaged in the proposal will
examine and evaluate how the arrangements for cooperation
are working. However, it will have no competence whatsoever
as regards assistance.

3.7
The proposal stipulates that every two years following
its entry into force, the Member States must report to the
Commission on the application of this regulation. However, the
EESC regrets that there is no obligation on the Commission to
submit a regular report on the application of the regulation at
Community level, with data from all the Member States. Such a
report should be sent to the European Parliament and the
EESC.

3.8
The definition of the scope of the regulation in Article
3(a) is incorrect in referring to the exhaustive list of Directives
found in Annex I. The aforementioned indent (a) should simply
provide a number of examples and therefore be worded as
follows: ‘in particular the Directives listed in Annex 1’.

Another less satisfactory alternative would be to add at least
the following omitted Directives to Annex 1:

— Indication of prices of products offered to consumers (98/6/

EC)

— Labelling, presentation and advertising (79/112/EEC and

2000/13/EC)

— General product safety (92/59/EEC)

— Safety of toys (93/68/EEC)

— Liability for defective products (1999/34/EC)

— Protection of individuals with regard to the processing of

personal data (95/46/EC and 2002/58/EC).

3.9
It would seem unnecessary for consumers to be harmed
in at least three Member States for activities to be coordinated.
Article 9(2) should not
therefore state ‘in more than two
Member States’ but ‘in at least two Member States’ or ‘in two or
more Member States’.

Articles 6, 7, 8, 9, 10, 14, 15, 16 and 17 all refer to
3.10
Article 19(2). This article should therefore stipulate the proce-
dure to be adopted and not merely refer to Articles 3 and 7 of
Decision 1999/468/EC, which is in this way transposed into
the national legislation of the Member States.

Moreover, the procedures laid down in this Decision are too
bureaucratic to be applied in connection with this Regulation,
which should lay down its own more easily implemented
mechanisms.

Brussels, 29 January 2004

The President

of the European Economic and Social
Committee

Roger BRIESCH