Opinion of the European Economic and Social Committee on Consumer policy post-enlargement
Date: 2005-02-10
Institutions: European Economic and Social Committee
Subjects: consumer movement, consumer policy, consumer protection, drafting of EU law, enlargement of the Union, financing, mutual recognition principle, precautionary principle, principle of subsidiarity

8.9.2005

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Opinion of the European Economic and Social Committee on Consumer policy post-enlargement

(2005/C 221/24)

On 17 July 2003, the European Economic and Social Committee decided, under Rule 29(2) of the Rules of
Procedure, to draw up an opinion on Consumer policy post enlargement.

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 8 September 2004. The rapporteur was Mr
Pegado Liz.

At its 414th plenary session of 9 and 10 February 2005 (meeting of 10 February), the European Economic
and Social Committee adopted the following opinion by 95 votes with 2 abstentions.

1. Introduction — Grounds

The enlargement of the EU, when ten new Member States will be joining the EU at the same time,

1.1
does not just raise problems of a quantitative nature.

A global analysis of the impact of accession on the European Union's structure and the way it operates
was one of the main concerns of the European Convention and is behind a whole series of initiatives set
out in the draft constitution.

Enlargement also calls for a sectoral policy discussion about the impact on the various sectors which will
be affected. (1)

1.2
As far as EU consumer policy and law in particular are concerned, however, until now there has
not been any systematic, in-depth discussion about the qualitative consequences of enlargement, nor about
the possible changes and adjustments entailed in adapting consumer policy and law to the new market of
around 500 million consumers.

1.2.1
However, during the meeting promoted by the EESC in Thessalonki on 14 and 15 March 2003, it
was stressed that enlargement could involve major changes to the guidelines underlying consumer policy,
with implications even for the Treaty and also for the concrete methods used to define new consumer
protection measures in such a way as to apply them effectively with sufficient harmonisation throughout
Europe where differences between Member States' domestic legislation will inevitably grow.

Indeed, this is a matter of a real

‘qualitative leap’ — a new way of defending, protecting and
1.3
promoting consumers' interests, ensuring that consumers are consulted and involved, safeguarding their
representation at all levels of political decision-making, in a new landscape with diverse characteristics,
distinct consumer practices and habits, different cultural traditions, and different laws and codes of
conduct.

(1) The EESC has had the opportunity to discuss all these issues in a series of opinions, of which the following should be

highlighted:
— The future of cohesion policy in the context of enlargement and the transition to a learning society (CES 848/2002), for

which the rapporteur was Mr Malosse, OJ C 241 of 7.10.2002.

— Economic and social

consequences of enlargement

in the candidate countries,

for which the rapporteurs were

Mr Dimitriadis and Mrs Belabed, OJ C 85 of 8.4.2003.

— The impact of enlargement on EMU, for which the rapporteur was Mr Vever, OJ C 61 of 14.3.2003.
— The impact of the enlargement of the European Union on the single market, for which the rapporteur was Mrs Belabed,

OJ C 85 of 8.4.2003.

— Transport/Enlargement, for which the rapporteur was Mr Kielman, OJ C 61 of 14.3.2003.
— Financial assistance for Pre-accession, for which the rapporteur was Mr Walker, OJ C 61 of 14.3.2003.
— EU enlargement: the challenge faced by candidate countries of fulfilling the economic criteria for accession, for which the

rapporteur was Mr Vever, OJ C 193 of 10.7.2001.

— Eastward enlargement of the European Union and the forestry sector, for which the rapporteur was Mr Kallio, OJ C 149

of 21.6.2002.

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1.4
The aim of this own-initiative opinion was therefore to encourage as detailed discussion as possible
about the effects of enlargement on consumer policy and consumer law, which could lead to proposals
being put forward on consumer policy guidelines for the period after the new Member States' full integra-
tion, or possible changes to the Community acquis for protecting, defending and promoting consumers'
interests and involving consumers, or even new legislative initiatives which might be considered necessary.

2. Method adopted and preparatory work

In order to prepare this opinion, it seemed necessary to obtain as clear an understanding as possible

2.1
of the difficulties the new countries have encountered in implementing Community legislation.

To this end, two questionnaires were sent out to a variety of high profile speakers with responsibil-
2.2
ities in this area, both from public administration bodies and from consumer organisations and certain
professional bodies more directly involved in consumer relations. In addition, a hearing on this subject was
held on 2 December 2003, attended by a large number of participants.

2.3
Based on the hearing's results and an analysis of the replies to the questionnaire, and taking into
account the outcome of bilateral contacts pursued during the work, this opinion is able to provide a basis
for conclusions and recommendations about possible changes to post-enlargement consumer policy guide-
lines.

3. A definition of ‘representative consumer organisation’ as a basis for the promotion of consu-

mers' interests and consumer participation

It is generally agreed that the primary objective of any consumer policy in tune with the reality of
3.1
life today in an enlarged single market must be increasingly to promote consumers as ‘market partners’
and therefore to foster and create the means and mechanisms that allow them to be involved in defining
policy guidelines affecting them. (1)

3.2 While it is true that not only local, regional and national government organisations in the various
Member States, but also the different departments of the various Community institutions and bodies, play
an important role in achieving this objective, there is a general sense that it is up to consumers themselves
to decide — of their own accord and as part of their right to establish and join associations and federations
— how best to organise themselves so that their interests are defended and represented and so that they
themselves are involved in debating and defining the policy guidelines which affect them at various poli-
tical and legislative decision-making levels.

3.3
The fundamental principle in this area must therefore be full recognition of the capacity and
autonomy of consumers to organise and manage themselves so that they can establish and join associations
and federations at local, regional, national, Community and international level, thereby ensuring that their
interests are properly represented and that they themselves are involved in all bodies where decisions
affecting them are taken.

It is clearly up to the legislator, whether at national or Community level, to ensure that this requirement is
met.

(1) See point 14 of Council Resolution of 2 December 2002 on Community consumer policy strategy 2002-2006 (OJ C 11

of 17. 1.2003, p. 1) which reads as follows:‘CALLS UPON THE COMMISSION AND THE MEMBER STATES:
[…] 14.to support representative consumer organisations so that they can independently promote consumers' interests at Com-
munity as well as national level and enable them to exert influence, enter, for example, into a balanced dialogue with business
and participate in Community policy making. The development of capacity-building projects in order to strengthen consumer
organisations where appropriate as well as education tools on specific aspects of cross-border transactions would be key to this
end’.

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3.4
There have nonetheless been calls from many quarters calling for identical parameters to be defined
at Community level to ensure that all consumer organisations respect, of their own accord, the funda-
mental principles of democratic organisation and methods, which in turn ensure that consumers in general
are properly and independently represented.

3.4.1
A number of Community instruments already set out criteria defining the parameters for gauging
the representativeness of consumer organisations and associations so that they can be compared across the
EU (1). These criteria were, however, considered to be insufficient.

3.4.2
To this end, the EU has also defined a number of criteria for recognising representative consumer
organisations, such as those laid down in Directive 98/27/EC of 19 May 1998 on injunctions for the
protection of consumers' interests (2).

3.4.2.1
However, these criteria entail an ‘administrative’ decision by the Member States and cannot
therefore be used as the basis for a uniform definition of what is meant by a representative consumer asso-
ciation or organisation, which is identical and comparable in the various Member States and throughout
the area covered by the single market.

(1) See, in particular, Article 7 (2) and (3) of Decision No 20/2004/EC of 8 December 2003 establishing a general frame-
work for financing Community actions in support of consumer policy for the years 2004 to 2007 (OJ L 5 of
9.1.2004, p. 1) which state the following:

‘2. The financial contributions for action 16 may be awarded to European consumer organisations which:

— (a) are non-governmental, non-profit making, independent of industry, commercial and business or other conflicting
interests, and have as their primary objectives and activities the promotion and protection of the health, safety and
economic interests of consumers in the Community;

— (b) have been mandated to represent the interests of consumers at Community level by national consumer organisations
in at least half of the Member States that are representative, in accordance with national rules or practice, of consu-
mers and are active at regional or national level, and

— (c) have provided to the Commission satisfactory accounts of their membership, internal rules and sources of funding.

3. The financial contributions for action 17 may be awarded to European consumer organisations which:

— (a) are non-governmental, non-profit-making, independent of industry, commercial and business or other conflicting
interests, and have as their primary objectives and activities to represent consumer interests in the standardisation
process at Community level, and

— (b) have been mandated in at least two thirds of the Member States to represent the interests of consumers at Com-

munity level:
— by bodies representative,
Member States, or

in accordance with national rules or practice, of national consumer organisations in the

— in the absence of such bodies, by national consumer organisations in the Member States that are representative, in

accordance with national rules or practice, of consumers and are active at national level.’

— (See too the EESC opinion on this by Mr Hernández Bataller (INT/180) of 17.7.2003, OJ C 234 of

30.9.2003.)

(2) See OJ L 166 p. 51 which reads as follows:

‘Article 3
Entities qualified to bring an action
For the purposes of this Directive, a 'qualified entity´ means any body or organisation which, being properly constituted according
to the law of a Member State, has a legitimate interest in ensuring that the provisions referred to in Article 1 are complied with,
in particular:
(a) one or more independent public bodies, specifically responsible for protecting the interests referred to in Article 1, in Member

(b) organisations whose purpose is to protect the interests referred to in Article 1, in accordance with the criteria laid down by

States in which such bodies exist and/or

their national law.’

Or its current ‘codified version’ which states the following:

‘Article 3
Entities qualified to bring an action
For the purposes of this Directive, a “qualified entity” means any body or organisation which, being properly constituted according
to the law of a Member State, has a legitimate interest in ensuring that the provisions referred to in Article 1 are complied with,
in particular:
(a) one or more independent public bodies, specifically responsible for protecting the interests referred to in Article 1, in Member

States in which such bodies exist; and/or

(b) organisations whose purpose is to protect the interests referred to in Article 1, in accordance with the criteria laid down by

their national law.’

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Several characteristics have been identified in an attempt to define a uniform concept of what ‘repre-

3.5
sentative consumer association’ means, namely:

(a) it must have legal personality and a right to bring an action before a court;

(b) it must be non-profit making;

(c) its main statutory objective must be to defend and represent the interests of consumers in general
interest associations) or to protect and represent its members and consumers or users of

(general
specific goods and services (specific interest associations);

(d) its governing bodies must have been freely elected through a secret ballot of all its members;

(e) it must be financially autonomous; and

(f) it must be independent vis-à-vis political and economic interests, business and business organisations

(operating on the supply side of the market).

3.5.1
should be placed on the same footing as consumer associations (1).

It has also been suggested that cooperative organisations, in particular consumer cooperatives,

In addition, the possibility has been raised of requiring representative associations to be officially
3.5.2
recognised by an authorised public body in the Member States; it has also been suggested, however, that
support for consumer organisations should be based on their technical qualifications and on the results of
their work and not solely on their accreditation by national authorities.

3.6
Owing to the delicate nature of this matter, the Committee, recognising it as being important,
believes that the Commission should discuss it in depth and then publish its findings in a Communication.

3.7
In order to ensure that organisations representing consumers' general and specific interests properly
exercise the consumer's right to representation at Community level in particular, a number of shortcomings
or gaps in existing systems have also been identified.

3.7.1
mentioned representative consumer associations and organisations (2).

One aspect warranting special mention is the training needs of managers and trainers in the afore-

3.7.2
In addition to generic information programmes targeting consumers in general, consumer associa-
tions and organisations must also be given tailor-made, advance information which they can then pass on
to their members or to consumers in general in their respective countries or regions.

3.7.3
Consumer associations themselves must be better represented in the various Community bodies,
either directly or through their umbrella organisations. The EESC does, nonetheless, welcome the Commis-
sion's recent initiatives to restructure the Consumer Committee (3) and appoint a Consumer Liaison Officer
within DG Competition (4) and hopes that this example will be followed in other policy areas affecting
consumers (5).

(1) On the importance of the cooperative sector, see the Commission Communication on the promotion of co-operative
societies in Europe - COM(2004) 18 final of 23 February 2004 – which again puts forward the idea of a statute for
European cooperative associations (Opinion by Mr Hoffelt).

(2) The EESC therefore welcomes the Commission's very recent initiative (DG SANCO) to ask BEUC to organise training
courses on financial and human resources management, public relations and lobbying, and consumer law in the
course of this year.

(3) Decision of 9 October 2003 on setting up a European Consumer Consultative Group (OJ L 258 of 10.10.2003).
(4) It was announced in December 2002 that this post would be created with a view to ensuring a permanent dialogue
with European consumers; it was filled by Mr Juan Riviere y Marti on his appointment by Commissioner Mario
Monti on 9 December 2003 (IP/03/1679 of 9.12.03).

(5) Of particular importance is the recent Commission Decision setting up Scientific Committees in the field of consumer

safety, public health and the environment (OJ L 66 of 4.3.2004).

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3.7.4
order to step up and improve dialogue, information and cooperation between consumer organisations.

It would also be a good idea to start organising regular European consumer forums again, in

4. Financing consumer organisations and associations

One of the main priorities for proper consumer representation is to ensure that representative

4.1
bodies are properly financed, at both organisational and operational level (1).

Regardless of the national arrangements in force in each country, a number of consumer representa-
4.2
tives feel that only with significant Community support and incentives will representative consumer asso-
ciations have the resources necessary to play their essential role of defending, promoting and representing
consumers at regional, national, Community and international level (2).

4.3
The general point has also been made that, because consumer associations rely on funding gener-
ated by members' subscriptions and their own initiatives, they can find it difficult on their own to avoid
bankruptcy and thereby safeguard their autonomy and independence vis-à-vis political and economic inter-
ests (3).

In order to safeguard these principles, any financial support received must, as a rule, be put towards
action, programmes, projects and initiatives for training technical staff and providing consumer education
and towards covering the cost of class actions for defending consumers' general
interests, rather than
funding the everyday management of these bodies.

4.4
The current Community support framework for consumer organisations and associations is laid
down in Decision 20/2004/EC of 8 December 2003 establishing a general framework for financing Com-
munity actions in support of consumer policy for the years 2004 to 2007 (4), which must be viewed in
conjunction with the Review of the rolling programme of actions of the Consumer Policy Strategy 2002-
2006 of 15 September 2003 (5).

5. Maximum harmonisation in line with the highest level of consumer protection

Article 153 clearly identifies the concept of minimum harmonisation and a high level of consumer

5.1
protection as a fundamental principle of Community consumer policy (6).

(1) 72 % of the respondents to the questionnaire said that consumer associations did receive state support, but deemed

this to be inadequate.

(2) In August 2003, in a particularly timely statement, BEUC called on governments in the new Member States to
provide consumer associations with adequate financial support and raised the possibility of using the PHARE
programme to this end.

(3) 75 % of the respondents said that consumer protection associations did not benefit from tax relief.
(4) OJ L 5 of 9.1.2004, p. 1, cf. EESC Opinion - Rapporteur: Mr Hernández Bataller - OJ C 234 of 30.9.2003.
(5) SEC(2003) 1387 of 27.11.2003.
(6) See Article 153(1) and (5), the latter of which states that measures which support, supplement and monitor the
policy pursued by the Member States, and which have been adopted by the Council in accordance with Article 251
and after consulting the Economic and Social Committee, ‘shall not prevent any Member State from maintaining or intro-
ducing more stringent protective measures’, providing such measures are of course compatible with the Treaty, in particu-
lar the subsidiarity and proportionality principles.

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In keeping with this approach, which incidentally is not new (1) and has not been changed in the
5.2
draft Constitution either, most of the consumer protection directives that have been adopted include a
‘minimal clause’, worded more or less as follows:

‘This Directive shall not prevent Member States from adopting or maintaining provisions which are more favour-
able or more stringent as regards consumer protection in the field in question, without prejudice to their obliga-
tions under the Treaty’ (2).

However, it would seem, at least from the Green Paper on European Union Consumer Protection (3)
5.3
the Communication from the Commission on Consumer Policy Strategy 2002-
and, more recently,
2006 (4), that full harmonisation is now the preferred method of approximating legislation in areas
affecting consumer protection.

This is the line taken, in particular, in the recently proposed Directives on credit for consumers (5)
5.3.1
and unfair commercial practices (6). Together with the excessive importance attached to the principle of
mutual recognition (7), this would seem to be a general, as opposed to a merely one-off, approach which is
justified either by the nature of the issues concerned or by the need to complete key aspects of the internal
market.

5.3.2 Whenever measures intended exclusively or primarily to ensure the smooth operation of the
internal market are concerned, the EESC acknowledges the advantage of adopting legislation to ensure the
highest possible degree of harmonisation of the rules governing legal transactions between companies or
between companies and consumers. This is particularly important given that the EU will soon number 25
Member States.

5.3.2.1
To achieve this objective, the EESC therefore believes that, wherever possible, and taking into
account the nature of the subject in hand, the EU needs to adopt regulations (or, to use the new nomencla-
ture of the draft European Constitution, ‘European laws’ (8)) or otherwise directives (or ‘European frame-
work laws’) which target full harmonisation, as this is the best way of safeguarding the certainty and
security of secondary law.

5.3.3
The EESC nonetheless holds the view that the sine qua non of seeking such harmonisation is that
consumer protection must be provided at the highest level in line with technological developments, scien-
tific knowledge and the cultural models of the time.

5.4
In all other situations where the primary objective of promoting these interests is not to ensure the
completion or smooth operation of the internal market but rather to secure consumer protection, the
EESC believes that the best way of safeguarding these interests is to uphold the principle of minimum
harmonisation. The idea would be to ensure a high level of protection while at the same time allowing the
Member States to maintain or adopt more stringent consumer protection measures in accordance with the
Treaty and in strict application of Article 153(5).

(1) The same provision was laid down in Article 129-A as amended by the Maastricht Treaty.
(2) Cf., for example, Directives 90/314/EEC (package holidays), Article 8; 94/47/EC (timeshare), Article 11; 93/13/EEC
(unfair terms), Article 8; 97/7/EC (distance contracts), Article 14; 85/577/EEC (contracts negotiated away from busi-
ness premises); 84/450/EEC (misleading advertising), Article 7; and 87/102/EEC (consumer credit), Article 15. We
should mention here the important study carried out at the Commission's request by the Centre for Consumer Law
and coordinated by Monique Goyens. The rapporteur of this opinion had the opportunity to take part in this study,
along with eminent legal specialists such as Profs. Klaus Tonner, Lopez-Sanchez, Susanne Storm, Jérome Frank, Alex-
andros Voutsas, William Fagan, Paolo Martinello, Andrée Colomer, A. Tavassy and Geraint Howells (SPC/02/93/CM,
July 1994). The final report quite rightly drew a distinction between the various forms of harmonisation: minimum,
complete, partial, full and optional.
(3) COM(2001) 531 final of 2.10.2001.
(4) COM(2002) 208 final of 7.5.2002.
(5) COM(2002) 443 final of 11.9.2002.
(6) COM(2003) 356 final of 18.6.2003.
(7) Incorporated into the Treaty when the Single European Act came into force.
(8) Cf. Article 32 of the draft Constitution.

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5.5 With another ten countries joining the EU, the EESC recommends that the Commission review its
recent approach of adopting a general preference for maximum harmonisation and instead confine this to
situations relating to the completion or operation of the internal market. It also calls on the Commission
always to ensure that, in such cases, consumer protection is guaranteed at the highest level in keeping with
advances in scientific knowledge, technological developments and socio-cultural models in the area in ques-
tion.

‘Scientific knowledge’ refers to the knowledge-basis for consumer policy decision makers. It includes

5.6
the approved results of

a) the theory of consumption

b) empirical research of consumer behaviour and organisations development

c) assessment of measures and projects programmed by the Commission etc.

Apparent deficits in the availability of a knowledge-basis should be eliminated by setting up a workable
research capacity.

5.7 Wherever possible, and technical and legal developments permitting, the EESC also recommends
using regulations (or ‘European laws’ under the new nomenclature), as this is the most appropriate instru-
ment for effectively securing approximation of legislation and for ensuring legal certainty and security
when applied to legal transactions (1).

6. The subsidiarity, mutual recognition and precautionary principles — interpretation and applica-

tion geared to consumer protection

A number of basic principles in the Treaty are also fundamental elements of secondary law and
6.1
must always be invoked when defining the nature, essential attributes, suitability and scope of regulatory
measures in the various sectors and when developing EU policies.

Consumer law is no exception.

The most important of these are the subsidiarity principle (2), the principle of mutual recognition

6.2
and the precautionary principle.

(1) Good examples of this include recent regulations on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters (Reg. (EC) No. 44/2001 of 22.12.2000); on the service in the Member States of judi-
cial and extrajudicial documents in civil or commercial matters (Reg. (EC) No. 1348/2000 of 29.5.2000); on jurisdic-
tion and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsi-
bility for children of both spouses (Reg. (EC) No. 1347/2000 of 29.5.2000); on insolvency proceedings (Reg. (EC) No
1346/2000 of 29.5.2000); concerning sales promotions in the Internal Market
(COM(2002) 585 final of
25.10.2002); on cooperation between national authorities responsible for the enforcement of consumer protection
laws (COM(2003) 443 final of 18.7.2003); on materials and articles intended to come into contact with food
(COM(2003) 689 final of 17.11.2003).

(2) See Article 5(II) of the EC Treaty, which states the following:

‘In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of
subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States
and can therefore, by reason of the scale or effects of the proposed action, by better achieved by the Community.’
There are, however, a number of differences in the wording of Article 9(3) of the draft Constitution, which ought to
be examined in depth.
The draft Constitution reads as follows:
‘Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and
insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at
regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.’
The most important contributions to the discussion about this principle are as follows:
Subsidiarity: The challenge of change, proceedings of the Jacques Delors Colloquium, published by the European Institute
of Public Administration, Maastricht, 1991 (EIPA 11/04); The principle of subsidiarity, Jean-Louis Clergerie, Ellipses,
1997; the study, thought to be unpublished, by Prof. G. Vandersanden, Considérations sur le principe de subsidiarité, Jan.
1992; Il principio di sussidiarietà nella prospectiva dell'attuazione del Trattato sull' Unione europea by Gian Pietro Orsello,
Rome, 1993; and the Mégret Commentary of the Treaty, Vol. 1, 2nd ed., Addendum, Ch. III, pp. 421 et seq.

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6.3 Without going into an in-depth analysis of the scope of the subsidiarity principle as it applies to
consumer protection legislation, when considered in conjunction with Article 153, its current wording
gives rise to what some people have termed ‘dual subsidiarity’ (1).

6.3.1
Indeed, in addition to the test of ‘primary’ or general subsidiarity set out in TEC Article 3b, the
legislator wanted to subject the measures referred to in Article 153(3)(b) to an even more stringent test of
is, even after they have passed the subsidiarity test, such Community
‘secondary’ subsidiarity. That
measures will only be admissible if and insofar as they ‘supplement’ or ‘support’ Member States' initiatives
in the areas mentioned.

6.3.2
In other words, the Member States must always have taken steps to either adopt or propose
measures at national level before the Community can introduce measures to ‘supplement’ or ‘support’ such
steps where it is appropriate to do so.

6.3.3
In short, the Community does not therefore have the power to take action even in the areas expli-
citly outlined above and even if, according to the subsidiarity principle laid down in Article 3b, such action
is justified, unless it is supplementing or supporting specific measures taken by Member States.

6.4
It is therefore essential — in all circumstances and particularly when applying the subsidiarity prin-
ciple — that consumers' representatives bring home to the Community institutions that their interpretation
of this principle must not hold up the adoption of much-needed and appropriate consumer protection
measures.

Likewise as regards the principle of mutual recognition (2) the Committee has already expressed its
6.5
views in some depth in its November 2000 own-initiative opinion (3) following the key Commission
Communication on Mutual recognition in the context of the follow-up to the action plan for the single market (4).

6.6
In turn, the Commission has published programmes of measures for implementing the principle of
mutual recognition in a number of specific sectors, in particular, decisions in criminal matters and in civil
and commercial matters (5).

6.7
As far as measures affecting consumers are concerned, there has been a growing trend towards
extending such measures to other areas of legislation, particularly when full harmonisation is also being
sought.

It must be pointed out that, while application of the principle of mutual recognition is in general
6.8
warranted, there are areas where doing so means that consumers are subject to different Member States'
laws. This generates confusion and is a major disincentive to cross-border trade (6).

6.9
The EESC would therefore draw the Commission's attention to the need for the principle of mutual
recognition to be applied with care and in such a way that is in tune with the reality of the sector
concerned, whenever it is used to approximate legislation.

(1) It must, therefore, be stated that the Commission's initial

interpretation, presented at the Edinburgh European
Council of 11 and 12 December 1992 was that the study, in line with the aforementioned principle, would result in
the withdrawal of an entire series of proposals in the pipeline and would put the revision of many others on hold.
(2) This principle was fully integrated into Article 100-b when the Single European Act came into force, definitively

incorporating the Cassis de Dijon verdict.

(3) Mutual Recognition in the Single Market – Rapporteur: Mr Lagerholm, OJ C 116 of 20.4.2001
(4) COM(1999) 299 final of 16.6.1999
(5) OJ C 12 of 15.3.2001.
(6) This refers in particular to financial products sold through mail order.

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6.10
On the other hand, the EESC feels that the precautionary principle, incorporated into Community
law when the Maastricht Treaty came into force and only applies to environmental policy, must be consid-
ered as a legal principle common to all EU policies, in particular consumer protection policy. This would
have significant practical consequences, particularly for systematic and objective risks assessment and in
terms of reversing the burden of proof in favour of consumers as a general rule in civil liability law (1).

7. A genuinely horizontal approach to consumer policy

7.1
As referred to above, the idea of a horizontal approach to, and the mainstreaming of, consumer
policy was included in the EC Treaty when the Amsterdam Treaty came into force; it had already been
mentioned in various Commission programming documents (2) and nowadays has gained considerable
ground in the Commission's policy guidelines, in addition to warranting mention as a fundamental right in
the draft Constitution (3).

Indeed, the Commission's ‘Consumer Policy Strategy 2002-2006’ (4) states that:

‘As well as specific
7.2
consumer protection rules, consumers are also affected by other important EU policies such as the internal market,
environment and sustainable development, transport, financial services, competition, agriculture, external trade and
more. Consumer policy as such cannot be developed in isolation without taking into account other areas that have an
impact on consumers. Systematic integration of consumer concerns into all relevant EU policy areas is essential’ (5).

In reality, however, this principle has not been put into practice systematically in the measures for
7.3
implementing and developing the various Community policies, and neither has the above-mentioned
strategy document attached priority to this objective, contrary to the proposals put forward by the EESC in
its opinion on the Commission's Communication (6).

7.4
It thus calls for transparent mechanisms to be devised and credible practices put in place to guar-
antee that consumers' interests are always taken into account and a high level of consumer protection
ensured when measures are adopted in any area falling within the EU's sphere of responsibility (7).

(1) Cf. EESC Opinion on the Use of the precautionary principle - Rapporteur: Mr Bedossa - OJ C 268 of 19.9.2000, p. 6.
(2) Cf. EEC's Preliminary Programme for a consumer protection and information policy of 14 April 1975, which states:
‘All these [consumers] rights should be given greater substance by action under specific Community policies such as the economic,
common agricultural, social, environment, transport and energy policies as well as by the approximation of laws, all of which
affect the consumer's position’ (OJ C 92 of 25.4.1975). The idea was subsequently to be developed in the Communica-
tion to the Council dated 4 July 1985 and entitled a ‘New impetus’, where, for the first time, it was quite rightly
considered that, for the creation of the European Economic Community, the completion of the single market was a
means and not an end (COM(85) 314 final). This led to the Council Resolution of 23.6.1986.
The European Parliament also, in its March 1992 Resolution on the consumer protection and public health requirements to
be taken into account in the completion of the internal market, called on the Commission to take more and more account
of consumer protection requirements in all policy areas (DOC. PE 152150).
However, it fell to the EESC, on the eve of the Amsterdam European Council, in its Opinion on the Single market and
consumer protection (CES 1309/95 of 22 November 1995 – Rapporteur: Mr Ceballo Herrero OJ C 39 of 12.2.1996),
to set out clearly a whole series of recommendations on the implementation of a horizontal approach to consumer
policy and to call for a general reference to this to be enshrined in the revised Treaty.

(3) Art III-38 and Art-III-5.
(4) COM(2002) 208 final of 7.5.2002.
(5) Ibidem page 7.
(6) EESC Opinion 276/2003 of 26 February 2003 – Rapporteur: Mrs Ann Davison - OJ C 95 of 23.4.2003.
(7) In Opinion CES 1309/95 referred to previously, the EESC recommended in this connection that:

‘— consumer interests should be taken into account in all EU trade policy decisions, in accordance with objective

and published criteria;

— the consultation of consumer organizations should be made mandatory under Treaty Articles 85 and 86 before
exemptions are granted in respect of agreements between undertakings and before such agreements are author-
ized, above all in cases involving mergers, since both practices hinder the orderly operation of the market;

— directives should be adopted on unfair competition and unfair advertising and measures taken to avoid social

and environmental dumping, also in the interests of consumers;

— the right to consumer safeguards against discriminatory or aggressive sales practices in this sector should be

harmonized;

— cooperation policy should be strengthened in the field of safety standards approval and sanctions against dealing

in products or services presenting health or safety hazards.’ (Point 3.2.4)

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7.5
To this end, the EESC suggests in particular that the Commission weigh up the need to boost the
human and material resources of DG SANCO and redefine the way that its methods and procedures tie in
with the other directorates-general.

7.5.1
The other Community institutions — from the Council to the European Parliament, Committee of
the Regions and the EESC itself — should likewise rework their approach so as to do more to ensure that
consumer protection is properly taken into consideration in all Community policies.

8. Simplification and codification of consumer law

8.1
Given the increasing proliferation and complexity of new legislation and regulations in the area of
consumer law, it would be advisable — if not imperative — to continue to improve lawmaking and
simplify legislation.

The Commission has expressed growing concern about these aspects of the Community legislative

8.2
process (1).

The Committee meanwhile has not only voiced the same concerns as the Commission (2), but since

8.3
2000 has also made ‘simplification’ an ongoing focus of its Single Market Observatory.

8.4
The EESC therefore welcomes the inter-institutional agreement reached between the EP, the Council
and the Commission in this area (3) and moreover refers back to the comments it made in the aforemen-
tioned opinions and, in particular, in its recently adopted opinion on the Commission's latest Communica-
tion on this subject (4).

This subject is particularly important where consumer law is concerned,

insofar as the latter
8.5
primarily affects private individuals; particular attention must therefore be given to further simplifying
consumer law so that it is easier to understand and apply (5).

At the same time, efforts should be made to step up codification, as already begun by the Commis-

8.6
sion, albeit on a small scale where several directives are concerned.

Given that the term ‘codification’ has many possible meanings, there does not seem to be any value
8.7
in drawing up an actual, dedicated European Consumer's Code (6); instead, we should continue with the
concerted approach to reworking Community law along the lines of major themes, harmonising the provi-
sions enshrined in the various legislative initiatives and organising them according to subject area.

(1) Of particular significance since 1992 are its Better lawmaking documents, in particular the one for 2002 (COM(2002)
715 final of 11.12.2002) and its Communications of 5 December 2001 on Simplifying and improving the regulatory
environment (COM(2001) 726 final, of 5 June 2002 on European governance: Better lawmaking (COM(2002) 275-278
final) and of 11 February 2003 on Updating and simplifying the Community acquis (COM(2003) 71 final) and, in par-
ticular, its recently published legislative and work programme for 2004 (COM(2003) 645 final of 29.10.2003) which
makes the simplification and codification of Community legislation a priority for 2004 (Annex 5).

(2) Cf. the EESC Opinions for which the rapporteurs were Mr Vever (OJ C 14 of 16.1.2001), Mr Walker (OJ C 48 of
21.2.2002 and OJ C 125 of 27.5.2002), Mr Simpson (OJ C 133 of 6.6.2003) and Mr Retureau (INT 187 of 17
March 2004 – CESE 500/2004; OJ C 112 of 30.4.2004).

(3) OJ C 321 of 31.12.2003. Cf. the particularly important EP report of 25.9.2003 (A5-0313/2003) by Monica Frassoni

MEP.

(4) COM(2003) 71 final for which the rapporteur was Mr Retureau (CESE 500/2004; OJ C 112 of 30.4.2004).
(5) When asked how much progress has been made in transposing the Community acquis, 65 % of the respondents to
the questionnaire said that the reform of the legal framework has been fully completed, while 35 % said that the
transposition process has not been completed.

(6) The idea of the ‘codification’ of Community consumer law and the various meanings of the term ‘codification’ were
discussed at length at the Colloquium held in Lyon on 12 and 13 December 1997, the minutes of which were
published by Bruylant (1998) under the title Vers un Code Européen de la Consommation. These were discussed again at
the Colloquium held in Bologne-sur-Mer on 14 and 15 January 2000, the minutes of which were published by Docu-
mentation Française (Paris 2002). This subject was also discussed by various authors in the work by Dominique
Fenouillet and Françoise Labarthe entitled Faut-il recodifier le droit de la consommation? (ECONOMICA, 2002).

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One widely acknowledged way of reducing the legislative burden would be to make greater use of

8.8
self- and co-regulation mechanisms.

8.8.1 Without wishing to anticipate the EESC opinion currently being drafted on this subject, the point
can however already be made that, where consumer law in particular is concerned and in an as yet uncon-
solidated market where there is an acknowledged lack of information, it will only be possible to develop
alternative self- and co-regulation systems where there is a legal framework with well-defined scope, para-
meters and criteria. The EESC has moreover already stated this in its opinion on unfair commercial prac-
tices (1).

9. Consumer information and education

For a long time now, the EESC has been demonstrating the decisive role of proper consumer infor-

9.1
mation and education in promoting, protecting and defending consumers' interests.

9.2 Where consumer information in particular is concerned, the EESC has pointed out that it is not
enough to provide specific information about each service or product, however detailed such information
may be; rather, there is a need for general information on consumers' rights which in turn must serve as a
basis for tailor-made information on the goods and services concerned (2).

9.3 Where consumer education is concerned, a recent EESC own-initiative opinion not only extolled
the virtues of the ‘educated consumer’, but also detailed the content and techniques of consumer education
and the role of the various players (European Union, Member States, consumer associations, professionals,
etc.) in education processes (3).

9.4
In any moves to rework consumer policy — a necessary consequence of enlargement — consumer
information and education should play an even greater role in ensuring that consumers' interests are
promoted and protected effectively, while still leaving it up to the Member States and consumer associa-
tions to define the guidelines and criteria for bringing such information and education into line with the
specific circumstances and features of each national, regional or local market.

9.4.1
have a role to play in this important task.

It is not only schools, consumer associations, businesses, professionals, and Member States who

It is the responsibility of the European Union not only to coordinate initiatives, but also to encourage and
promote measures designed to improve the quality of information and the level of education of consu-
mers (4).

9.4.2
the development of joint information and education campaigns and programmes.

Such measures must not be limited to providing adequate financial support, but must also include

9.4.3
They should also include not only consumers but also professionals, providers of goods and
services and even regulators and bodies responsible for implementing the law, with particular emphasis on
members of the legal profession (judges, lawyers, public prosecutors, etc.).

(1) EESC Opinion 105/2004 for which the rapporteur was Mr Hernández Bataller (OJ C 108 of 30.4.2004).
(2) In this connection, see in general the EESC's opinions on the ‘Single Market and Consumer Protection’, for which the
Rapporteur was Mr Ceballo Herrero (OJ C 39 of 12.2.1996) and on the ‘Green Paper on European Union Consumer
Protection’ for which the Rapporteur was Ms Davison (OJ C 125 of 27.5.2002) and in particular the opinions on
proposals for directives on misleading and comparative advertising, doorstep sales, consumer credit, package travel,
unfair terms, time share, distance sales of goods in general and services in particular, producer responsibility, guaran-
tees, electronic commerce, product safety and unfair commercial practices.

(3) EESC Opinion of 26 March 2003, for which the rapporteur was Mr Hernández Bataller (OJ C 133 of 6.6.2003). The
Dutch Committee for Consumer Affairs' November 2000 report on this subject is also of interest in this connection.

(4) As stated by the Council in its Resolution of 9 June 1986 (OJ C 184 of 23.7.1986).

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10. Administrative cooperation on the application of consumer protection laws

10.1
One fundamentally important element will be the outcome of the recent proposal for a regulation
on cooperation between national authorities responsible for the enforcement of consumer protection laws
(COM(2003) 443 final of 18.7.2003), on which the Committee has already issued an opinion (1).

10.2
For the system for monitoring infringements of Community legislation to be ever more effective
and for national implementation to guarantee effective application, the various limitations revealed in this
proposal will have to be tackled.

An aspect worth altering immediately is the proposal's scope, which the EESC considered far too limited.

11. Some ideas for effectively and adequately protecting, defending and promoting consumers'

interests in the enlarged single market

The EESC is well aware that no changes to legislation will produce immediate effects or instanta-
11.1
neous results. Therefore — in addition to its concern to stress the need to consolidate and promote proper
application of existing laws — in this discussion on the various areas which could be dealt with in greater
depth or improved upon, the EESC is also keen to emphasise the gradual, concerted nature of possible
developments to pursue, so as not to upset the essential balance between the main interests concerned, but
not forgetting that on most occasions consumers are at a disadvantage in the consumption process.

11.2
It is with this in mind that the EESC lists below a number of areas requiring thought, with a view
to improving the current legislative framework governing legal transactions which directly affect consu-
mers.

11.2.1
that a supplier's responsibility for defective services is regulated.

One such area concerns the safety of services for consumers, and, associated with this, the way

In 1992, the proposal for a directive on this subject was shelved (2). In response to a call from
11.2.2
the Council and the Parliament to ‘identify the needs, possibilities and priorities for Community action on the
safety of services’ (3), the Commission has decided to start up discussions on this issue again with its Report of
6 June 2003 (4), and more recently with its Proposal for a Directive on services in the internal market (5);
this decision has been greeted with renewed hope.

(1) Opinion, adopted on 28 January 2004 - Rapporteur: Mr Hernández Bataller (OJ C 108 of 30.4.2004). The Commis-
sion had already pointed to the need for better monitoring of the application of Community law in its Communica-
tion of 11 December 2002 (COM(2002) 725 final).

(2) At the Edinburgh Council meeting on 11 and 12 December 1992, it was decided to withdraw a whole series of
proposed directives which were in the pipeline in order to apply the subsidiarity principle; this included the text in
question. (SN/456/92 Appendix C to the Presidency's conclusions)

(3) Directive 2001/95/EC, Article 20.
(4) COM(2003) 313 final of 6.6.2003.
(5) COM(2004) 2 final of 13.1.2004. See EESC Opinion for which the rapporteurs were Mr Metzler and Mr Ehnmark.

See also Council Resolution of 1 December 2003, published in OJ C 299 of 10.12.2003.

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11.2.3
There is nevertheless concern that the Commission's approach to this matter, based on an erro-
neous interpretation of the subsidiarity and complementarity principles in relation to national policies,
might mean that timely, effective measures are not taken (1).

Another area where there is a major gap in Community legislation concerns the definition of the
11.2.4
scope of key services of general interest and the standard principles which should govern them, in
terms of the continuity and universal nature of services, price accessibility, right of access and freedom of
choice, etc. (2)

Following on from its opinions on this subject (3), the Committee feels that EU enlargement
11.2.4.1
requires precise guidelines to be drawn up with a view to the privatisation of certain key public services
and the identification — as a matter of urgency — of core services of general interest, which will have to
include air and rail transport, electricity, gas and postal and telecommunications services. (4)

11.2.4.2
In the absence of quality indicators precise enough to allow a comparative assessment of these
services, the Commission's promised communication on a method for the horizontal assessment of services
of general interest is eagerly awaited. (5)

11.2.5
applying to non-contractual obligations.

One other shortcoming noted to date concerns Community-wide standardization of the law

The Commission initiative to move forward with a proposal for a Regulation (6) on this subject
11.2.5.1
therefore warrants special mention; together with the comments and suggestions made by the EESC in its
opinion (7), this proposal represents a key component of legislative harmonization throughout the enlarged
EU in an area vital for securing adequate consumer protection.

As far as the right to information is concerned, in particular as regards foodstuffs (8), in addition
11.3
to the fact that the labelling should be made increasingly clear for consumers, other modern methods
free telephone lines, consumer
should likewise be used to improve consumer information (internet,
support services, etc) without forgetting, wherever necessary and possible, a reference to the product's
origin (9).

(1) This comment is made without any intention of anticipating the EESC Opinion on this topic (CESE 137/2005).
(2) Cf. Green paper on Services of General Interest (COM(2003) 270 final of 21.5.2003) and the Commission Communica-

tion entitled ‘Services of General Interest in Europe’ (COM(96) 443 final of 11.9.1996).

(3) Opinion CESE 1607/2003 of 10.12.2003 (OJ C 80 of 30.3.2004) - Rapporteur: Mr Hernández Bataller and Opinion
CES 605/1997 of 29.5.1997 (OJ C 287 22.9.1997) - Rapporteur: Mr Van Dijk. Also see the EESC's sectoral opinions
on certain key services, in particular Opinion CES 1269/1996 of 31.10.1996 (OJ C 66 of 3.3.1997) on energy and
Opinion CES 229/2001 of 1.3.2001 (OJ C 139 of 11.5.2001) on electronic communications services – Rapporteur
in both cases: Mr Hernández Bataller.

(4) In a recent decision in Portugal, telephone services were surprisingly not included as part of key public services (Law

5/2004 of 10.2.2004)

(5) This Communication appears in document COM(2004) 374 final of 22/7/2003) (Rome II)
(6) Regulation on the law applicable to non-contractual obligations (COM(2003) 427 final of 22.7.2003) (‘Rome II’).
(7) Opinion CESE 841/2004 – Rapporteur: Mr Von Fürstenwerth (OJ C 241 of 28.9.2004).
(8) European Parliament and Council Directive 2000/13/EC of 20 March 2000, OJ L 109 of 6.5.2000.
(9) The directive stipulates that identification of a product's origin is only mandatory when omitting it might mislead
consumers; this gives rise to considerable doubt and from the point of view of legal certainty is not clear enough.

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11.4
As regards health protection and safety, an increasingly effective operation of the RAPEX
system (1) depends on the capacity of the Member States to respond. The EESC therefore reiterates that
there is a need to invest in the quality of the system for monitoring the Community market through
projects which help shape and develop Member States' market control mechanisms, particularly in the
accession countries, providing back-up for both consumer representative bodies and the relevant public
bodies (2).

11.4.1
services and make public the results of inspections carried out at national level.

In turn, consumer organisations must provide reliable information on the safest goods and

11.5
reworking:

On the protection of economic interests of consumers, various aspects warrant attention and

As far as producer liability (3) is concerned, the current arrangements are out of balance, to the
11.5.1
detriment of the consumer, as regards the burden of proof imposed on the consumer on the one hand,
and the grounds for exemption from producer liability on the other.

There are thus solid grounds for continuing with the current work on Directive 85/374/CEE of
11.5.1.1
25 July along the lines recommended inter alia in the Green Paper on Liability for Defective Products (4),
which a succession of studies commissioned by the Commission have taken into account (5).

11.5.2
Certain misgivings have been expressed about steps restricting consumer protection on doorstep
sales (6) to express requests from consumers, because of the difficulty in supplying proof and because it is
sometimes unclear what rules should apply. The EESC feels that this problem should be revisited so as to
work out a basis for protecting the consumer against fraudulent behaviour, in addition to which the whole
directive should be reviewed in the light of current unfair, aggressive practices and the Community texts
referring thereto.

As regards distance contracts (7), it would be important, as a matter of urgency, to reach a deci-
11.5.3
sion on placing the burden of proof on the supplier as regards compliance with requirements on the exis-
tence of prior information, written confirmation and consumer consent (8). Moreover, it would be appro-
priate to analyse the suitability of information requirements in distance contracts covering new technolo-
gies.

(1) System for the rapid exchange of information.
(2) Along the same lines: EESC Opinion on the Proposal for a Directive of the European Parliament and of the Council on
General Product Safety (OJ C 367 of 20.12.2000). When questioned about mechanisms to monitor the market, 65 %
of respondents considered them to be adequate while 37 % considered them to be relatively ineffective.

(3) Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the
Member States concerning liability for defective products amended by Directive 99/34/EC of the Parliament and the
Council of 10 May 1999, which expanded the scope of the directive to include the electricity market.

(4) COM(1999) 396 final of 28.7.1999.
(5) Particular reference is made here to the Lovells Report (MARKT/2001/II/D), Contract No ETD/2001/B5-3001/D/76;

the present rapporteur was also involved in the preparation of the afore-mentioned report.

(6) Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from

business premises, OJ L 372 of 31.12.1985.

(7) European Parliament and Council Directive 97/7/EC of 20 May 1997 on the protection of consumers in respect of distance

contracts, OJ L 144 of 4.6.1997.

(8) Ibidem Article 11, para 3a)

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11.5.4
The EESC has concerns about the application of the right of withdrawal, deeming it to be
important to standardise time-limits in the various legal texts concerned and to draw up clear rules for
exercising this right, particularly as far as the distance marketing of financial services (1) and consumer
credit (2) is concerned. The EESC feels it has to point out that there is a need to simplify these arrangements
which are complex and lack transparency (3).

On the protection of consumers against unfair terms in consumer contracts (4), it would be
11.5.5
valuable for the Commission to carry out a systematic, up-to-date survey of general contractual terms
which have expressly been declared as unfair, either in Member States' domestic case-law, or in the case-
law of the Court of Justice, with a view to passing this information on to consumer and professional orga-
nisations (5).

11.5.5.1
On the other hand, since it has been recognised that the regulatory framework is outmoded,
the EESC calls on the Commission to complete its review work quickly, in the wake of its Report on the
implementation of the Directive (6) and the numerous meetings it has organised in this connection.

As for the matter of consumer credit (7), the EESC has already had the opportunity to issue its
11.5.6
views on the recent Commission proposal (8) on this subject; it feels it appropriate to reaffirm here the
need to combat extortionate money-lending practices and to balance out the rights and obligations of
consumers and credit providers. Disparities between national legislation in this sphere and the different
levels of consumer protection — which could get worse when the new Member States join the EU —
could damage confidence on the financial services market and create distortions in competition.

A matter which urgently needs to be dealt with at Community level, as underlined by the EESC
11.5.7
on several occasions, is household over-indebtedness; this has been worsening recently and there are
fears that it will spiral upwards with the likely rise in interest rates (9).

11.5.8
The EESC also considers that it is vital to further develop legislation on the security of elec-
tronic payments (10); it welcomes the Commission's recent initiative to launch a debate on the establish-
ment of a single area for payments in the single market (11).

(1) European Parliament and Council Directive 2002/65/EC of 23 September concerning the distance marketing of

consumer financial services OJ L 271 of 9.10.2002.

(2) Proposal for a Directive of the European Parliament and of the Council on the harmonisation of the laws, regulations
and administrative provisions of the Member States concerning credit for consumers COM(2002) 443 final of 11.9.2002.
(3) 89 % of respondents said that this right was enshrined in law, but 30 % felt that these mechanisms were not properly

applied.

(4) Directive 93/13/EEC of 5 April, OJ L 95 of 21.4.1993, p. 29.
(5) As far as is known, the CLAB database is no longer being updated and is difficult to access. 52 % of respondents
deemed consumer protection against unfair clauses to be adequate, while only 19 % deemed it to be inadequate.
(6) COM(2000) 248 final of 6.7.2000; Cf. EESC Opinion - Rapporteur: Mr Ataíde Ferreira – OJ C 116 of 20.4.2001.
(7) Directive 87/102/EEC, OJ L 42 of 12.2.1987 and Directive 98/7/EC, OJ L 101 of 1.4.1998.
(8) EESC Opinion on the Proposal for a Directive of the European Parliament and of the Council on the harmonisation of the
laws, regulations and administrative provisions of the Member States concerning credit for consumers of 17 July 2003 (OJ C
234 of 30.9.2004), where the EESC points out that it does not accept that the proposal should, like Directive
87/102/EEC, maintain that the development of the single market is still the main concern, and that consumer protec-
tion is only of importance in so far as it might encourage the free movement of credit supply, not constituting an
end in itself but just a means to develop single market.

(9) To be highlighted in this connection are the still topical EESC Information Report and Own-initiative Opinion on
this issue (24.4.2002 - Rapporteur: Mr Ataíde Ferreira, OJ C 149 of 21.6.2002) and the various meetings organised
in this connection by the Commission and national organisations.

(10) Commission Recommendation 87/598/EEC on a European Code of Conduct relating to electronic payment (OJ L 365 of

24.12.1987) is not enough to protect consumers' interests in this area.

(11) Communication from the Commission to the Council and the European Parliament concerning a New Legal Frame-
work for Payments in the Internal Market (COM(2003) 718 final); the EESC is to draft an opinion on this subject, for
which the Rapporteur will be Mr Ravoet (30 June 2004).

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11.5.8.1
However, a comprehensive approach to electronic trade is still lacking; such an approach is
necessary to gain consumers' confidence, as was made clear at the conference held in Dublin on the occa-
sion of the 2004 European Consumer Day.

11.5.8.1.1
In addition, work carried out to date to set up systems for accrediting professionals in this
sphere has not even led to any self-regulation measures being adopted to enable consumers to identify reli-
able websites.

Thus, recent Commission initiatives to promote more secure internet use (1) and on the
11.5.8.1.2
protection of minors and human dignity and the right of reply in relation to the competitiveness of the
European audiovisual and information services industry are to be welcomed, despite their limitations (2).

11.5.8.2 Moreover, there is no world-wide legal framework similar to the one introduced in the EU
with the Brussels I Regulation, which is essential for the secure development of international electronic
transactions; for this reason, a convention on matters pertaining to jurisdiction and the implementation of
verdicts in matters civil and commercial is a key objective to pursue at the Hague conference.

11.5.9
One area of crucial importance is the standardisation of contract law, launched by the Commis-
sion and supported by the EESC (3); this should be pursued and further developed, focusing on the standar-
disation of specific types of contracts which are of particular interest to consumers (4).

The recently published Directive on certain aspects of the sale of consumer goods and asso-
11.5.10
ciated guarantees (5) deals with aspects relating to guarantees involved in the sale of goods. The EESC's criti-
cisms directed at that proposal, as set out in its opinion on the subject (6), still hold true, especially as
regards the links between commercial and legal guarantees, and the procedures for putting these into prac-
tice.

11.5.10.1
It will now be necessary not only to rethink the extension of the Directive's scope to cover
after-sales services (7), but in particular for the Commission to monitor closely how this is being transposed
into Member States' legislation, because of the complexity of the arrangements and the fact that it will be
difficult to tie these in with national laws.

11.5.11
wake of the Green Paper on Consumer Protection (8) was, precisely, unfair commercial practices.

One area where it was very much hoped that the Commission would adopt a position in the

Nevertheless, in its opinion on this subject (9), the EESC has already had the opportunity to
11.5.11.1
express its disappointment and a certain apprehension as regards the path and guidelines set out in the
Directive concerned.

(1) Cf. COM(2004) 91 final of 12.3.2004 and the EESC Opinion currently in the pipeline, for which the rapporteurs are

Mr Retureau and Ms Davison.

(2) Cf. COM(2004) 341 final and EESC Opinion currently in the pipeline, for which the rapporteur is the same as for

the present opinion.

(3) Cf. Commission Communication on European Contract Law (COM(2001) 398 final of 11.7.2001) and the relevant

EESC Opinion – Rapporteur: Mr Retureau – OJ C 241 of 7.1.2002.

(4) Cf. EESC Own-initiative opinion currently being prepared on the European insurance contract (INT/202) – Rapporteur:

the same as for the present opinion.

(5) Directive 1999/44/EC of 25.5.1999, OJ L 171 of 7.7.1999.
(6) ESC Opinion 743/94 of 1 June 1994 – Rapporteur: Mr J. Proumens (OJ C 295 of 22.10.1994)
(7) As provided for in the Commission's excellent Green Paper (COM(1993) 509 final of 15.11.1993); the Directive

concerned did not adhere to the spirit of that Green Paper.

(8) COM(2001) 531 final; cf. EESC Opinion 344/2002 - Rapporteur: Mrs Davison - OJ C 125 of 27.5.2002.
(9) EESC Opinion of 28.1.2004 – Rapporteur: Mr Hernández Bataller (OJ C 108 of 30.4.2004).

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11.5.11.2
representatives and in particular in the new Member States.

This issue will therefore have to be monitored closely in the future, especially by consumers'

11.5.12
In the same vein, the EESC has already expressed its dissatisfaction regarding the draft regu-
lation on Sales Promotions (1) and it reiterates here that it is apprehensive about the final form of this
regulation and the way it will tie in with the proposal on unfair commercial practices, fearing that together
these two instruments, instead of helping promote consumers' interests further, will in the end entail a step
backwards from current consumer protection levels.

11.6
Lastly, as regards access to justice, the EESC deems it necessary to strengthen the protection of
not only collective, general and similar individual interests (2) — by revising the Directive on injunctions
for the protection of consumers' interests (3) as a matter of urgency, extending its scope so as to turn it
into genuine ‘class action’ aimed at promoting damage compensation in addition to merely putting a stop
to unlawful or unfair practices — but also the legitimate interests of individual consumers in a conflict
situation, especially as regards access to speedy justice, ideally free of charge (4). In this connection the
EESC would reiterate that it advocates the use of not only alternative means of conflict settlement (alter-
native dispute resolution — ADR) (5), but also arbitration procedures, and considers it to be a matter of
priority importance to give national authorities operational and technical support for setting up and imple-
menting ADR and arbitration procedures in the various Member States (6).

11.6.1
The EESC also advocates adopting binding legislation which, without prejudice to the subsidiarity
and proportionality principles, secures the objectives set out by the Commission in its Recommendations
on this matter (7). These concern in particular the principles of consumer freedom and of the impartiality
and transparency of the process, making binding rules out of what are at present mere recommendations
which have not been effectively applied in practice on a widespread basis.

In this connection, the EESC welcomes the Commission's recent initiatives in judicial cooperation;
11.7
it would highlight the recent regulations on insolvency proceedings (8) and the law applicable to court juris-
diction (Brussels Convention) (9), as well as the proposed Regulation on the law applicable to non-contrac-
tual obligations (Rome II) (10), the Green Paper on the conversion of the Rome Convention of 1980 on the
law applicable to contractual obligations into a Community instrument (Rome I) (11), and the Regulation
establishing a general framework for Community activities to facilitate the implementation of a European
judicial area in civil matters (12). It urges the Commission to continue steps to set up a single judicial area
as a keystone of structural support for completion of the single market, increasingly important in an
enlarged EU.

(1) In its Opinion (OJ C 221 of 17.9.2002) – Rapporteur: Mr Dimitriadis – on the Commission's proposal for a regu-

lation on this subject (COM(2001) 546 final of 2.10.2001).

(2) 71 % of respondents said there were mechanisms to enable consumers to gain access to justice, while only 29 % said
there were no specific mechanisms for doing so; when asked how effective they were, 58 % deemed them to be
adequate, while 35 % deemed them to be relatively ineffective.

(3) Directive 98/27/EC of 19 May 1998 (OJ L 166 of 11.6.1998) now in a codified version (COM(2003) 241 final of

12.5.2003).

(4) When asked if there were rules exempting consumer associations from legal costs, 73 % of respondents said there

were no such rules.

(5) EESC Opinion on the Green Paper on alternative dispute resolution in civil and commercial

law (COM(2002) 196 of
19.4.2002) – Rapporteur: Mr Malosse - OJ C 85 of 8.4.2003. In follow-up to this, the EESC is awaiting publication
of the report on the operation of the EEJ-NET (European Extra-Judicial Network); however it would point out here
and now the need to make this more operational.

(6) 78 % of respondents said there were alternative means of dispute resolution, while only 33 % said there were none.
(7) Recommendation 98/257/EC of 30 May 1998 on the principles applicable to the bodies responsible for out-of-court settle-
ment of consumer disputes, OJ L 115 of 17.4.1998 and Recommendation 2001/310/EC of 4 April 2001, OJ L 109 of
19.4.2001.

(8) Council document 9179/99 and Corr 1-99/00806; the Rapporteur of the EESC Opinion on the subject was Mr
Ravoet (OJ C 75 of 15.3.2000); these Council documents have now become Council Regulation (OJ L 160 of
30.6.2000, p. 1).

(9) Regulation 44/2001/EC (OJ L 12 of 16.1.2001).
(10) COM(2003) 427 final of 22.7.2003.
(11) COM(2002) 654 final; the Rapporteur for the EESC Opinion on this subject was the author of the present opinion

(Opinion CESE 88/2004 in OJ C 108 of 30.4.2004).

(12) COM(2001) 705 final of 22.11.2001; the Rapporteur for the EESC Opinion on this subject was Mr Ataíde Ferreira

(OJ C 36 of 8.2.2002)

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12. Conclusions

12.1
ongoing objective of all EU policies, as a genuine right of European citizens.

Promoting, protecting and defending consumers' interests and involving consumers must be an

12.2
Now that the EU has ten new Member States, in most of which consumer protection is a relatively
new issue, consumer policy as a whole must be rethought so as to bring it into line with the new reality of
a market of around 500 million consumers.

12.3
The EU and its institutions play a key role in identifying priorities for re-defining the legal and
institutional framework and the programmes and actions essential to ensuring an effective consumer policy
that safeguards and meets these objectives.

12.4 With this own-initiative opinion, the EESC — in its capacity as a relay for the concerns of civil
society — wishes to play a part in defining such a policy, making a particular effort to involve representa-
tives from the new Member States.

12.5

The EESC is of the view that the immediate priorities for consumer policy must be to:

— consolidate the Community acquis through simplification and codification;

— effectively apply laws that have been passed and properly transposed into national law, and closely

monitor compliance with these laws;

— implement the framework-directive on unfair commercial practices;

— take urgent steps to improve consumer information and education;

— consider fully mainstreaming consumer policy into other policies, at both national and Community

level;

— support consumer organisations in order to undertake product analyses and to exchange information

on their quality.

12.6
effective policy for defending and promoting consumers' interests and involving consumers.

The EESC considers that strong and independent consumer organisations provide the basis for an

12.7
properly financed so that they can develop actions, programmes, projects and initiatives.

To this end, the EESC is of the view that it is essential to ensure that consumer organisations are

12.8
gauging representativeness and the involvement of consumer organisations.

The EESC believes that a key way to make consumer policy more effective is to define criteria for

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12.9
The EESC considers that — without losing sight of the need to maintain a balance between the
interests in question — new legislative initiatives should gradually be introduced, particularly in the
following areas:

— safety of services and responsibility for supplying defective services;

— key services of general interest;

— health protection and safety;

— greater security for electronic payments and internet use;

— household over-indebtedness;

— means of payment;

— contract law;

— access to justice and a single judicial area.

12.10
bring it into line with the new enlarged single market, with particular emphasis on the following areas:

The EESC also believes that existing Community legislation must be reviewed and harmonised to

— producer liability;

— doorstep sales, distance selling, e-commerce and sales promotions;

— unfair terms in consumer contracts;

— consumer credit;

— guarantees involved in the sale of goods and services.

12.11
a provider of the knowledge-basis for consumer policy (1).

The EESC recalls its proposal to set up a European Research Institute for Consumer Protection as

12.12
interests and the involvement of consumers a priority in all their policies.

The EESC calls on Member States to make the protection, defence and promotion of consumers'

12.13
The EESC recommends that the Commission take account of the proposals and suggestions put
forward in this opinion when defining the new consumer policy guidelines and periodically to issue
reports on the situation of consumption and consumers in Europe.

Brussels, 10 February 2005.

The President

of the European Economic and Social
Committee

Anne-Marie SIGMUND

(1) Opinion ‘Strategy of Consumer Policy 2002-2006’ (26.2.2003, OJ C 95 of 23.4.2003, Rapporteur: Ms Ann Davison);
Opinion ‘Financial Framework for Consumer Policy 2004-2007’ (17.7.2003, OJ C 234 of 30.9.2003, Rapporteur: Mr
Hernández Bataller)

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APPENDIX

to the Opinion or the European Economic and Social Committee

The following proposal for amendment was rejected, but received at least a quarter of the votes cast.

Point 12.5

Add the following to the list of priorities:

‘— in the event of difficulties protecting the rights of a consumer outside his own country, make it possible for
him to resolve such difficulties in the language of his home country, using the consumer ombudsman of his
home Member State as an intermediary.’

Reason

It is currently difficult for consumers to assert their rights in countries of the EU other than their own, due to the
language barrier and ignorance of procedural obstacles — for example, if a Latvian consumer has his rights violated in
the Netherlands, or vice-versa.

Outcome of the vote:

For: 3

Against: 3

Abstentions: 3.