Opinion of the European Economic and Social Committee on the Green Paper on the Review of the Consumer Acquis COM(2006) 744 final
Date: 2007-07-12
Institutions: European Economic and Social Committee
Subjects: Community acquis, amendment of a law, approximation of laws, consumer protection, simplification of legislation

27.10.2007

EN

Official Journal of the European Union

C 256/27

Opinion of the European Economic and Social Committee on the ‘Green Paper on the Review of
the Consumer Acquis’

COM(2006) 744 final

(2007/C 256/05)

On 8 February 2007, the European Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the Green Paper on the
Review of the Consumer Acquis.

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 4 June 2007. The rapporteur was Mr Adams.

At its 437th plenary session, held on 11 and 12 July 2007 (meeting of 12 July), the European Economic
and Social Committee adopted the following opinion by 55 votes with 2 abstentions.

1. Conclusions and Recommendations

consumer policy measures in their own right and not only as a
by-product of the establishment of the internal market.

1.1
The EESC takes note of the Green Paper but has doubts
that the approach put forward can lead to a high and uniform
level of consumer protection across the EU. Ensuring such
protection through a
and enforced
consumer acquis has been a repeated theme of EESC opinions
on consumer safeguards but there are indications in this review
process that this may be difficult to achieve. The review of the
acquis is therefore a real attempt
the ‘Better
lawmaking’
initiative. The foundations and objectives for this
should be clear and agreed, in advance, by the parties involved.

to implement

simplified,

consistent

Genuine

1.2
revised
consumer acquis is necessary together with a clear legal and
conceptual basis.

legitimisation of

democratic

the

1.7
Harmonisation of consumer legislation across the EU
must take, as a guiding principle, the adoption of the best and
highest level of consumer protection to be found in the Member
instrument’ should be based on the
States. Any ‘horizontal
highest standards while necessary ‘vertical
integration’ would
concentrate on clarifying technical issues. A horizontal instru-
ment could however contain fully harmonised rules in specific
fields, such as the right of withdrawal and the definition of
consumer as well as abusive clauses, delivery or consumers'
right of redress, whereas minimum harmonisation would apply
elsewhere. It is to be hoped that this would be a preferred
approach, both by the Commission and all Member States.

1.3
The EESC would particularly welcome the application of
the principles of the acquis to the rapidly growing and poorly
regulated digital environment.

2. Introduction

1.4
Consumer policy is considered by the EESC not only as
an integral part of the EU internal market strategy but also as
an important and affirming element of citizenship. The EESC
supports implementation of the better regulation principles in
consumer legislation. Any proposals for harmonised rules in
this field should be backed by a proper impact assessment, and
pursue simplification and clarification of existing rules.

1.5
Better enforcement measures and strengthening or intro-
ducing clear and simple processes for achieving redress should
be emphasised as a priority.

1.6
The Committee encourages the Commission to take
account of its Opinion of April 2006 on The legal framework for
consumer policy (1) which proposed making it possible to adopt

(1) OJ C 185 of 8.8.2006.

The Commission adopted their

2.1
long-awaited Green
Paper on the Review of the Consumer Acquis (consumer
rights legislation) at
the beginning of February 2007. This
concluded what they term the ‘diagnostic phase’ of the Review.
They are seeking views on options to simplify, modernise and
harmonise the existing Community legislation on consumer
It is argued that by analysing the strengths and
protection.
weaknesses of the existing legislation and making appropriate
revisions both consumers and business can benefit. The
Commission also considers the Review to be an opportunity to
obtain consistency across Member States and generally improve
EU consumer protection legislation, some of which dates back
20 years, particularly by identifying where regulatory differences
exist and if they produce internal market barriers to consumers
and business — while respecting the principle of subsidiarity.
This Opinion, therefore, concentrates on how the underlying
themes of
the Consumer Acquis are being perceived and
presented. As yet only options for changes have been put
forward.

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Official Journal of the European Union

27.10.2007

2.2
Consumer spending represents 58 % of EU GDP but is
still largely fragmented into 27 national markets. The internal
market could be the largest in the world and the Commission
has described its strategy as awakening ‘a sleeping giant, the
retail side of the Single Market’ (2). The Commission currently
defines its consumer policy as ‘ensuring a common high level of
protection for all EU consumers, wherever they live, travel to or buy
from in the EU, from risk and threats to their safety and economic
interests and increasing consumers' capacity to promote their own
interests’ (3).

2.3
The objective of ensuring the consistent application of a
common framework for consumer rights in the EU is widely
supported. Such a framework would provide clear and equitable
rights and protection for all consumers whilst simultaneously
creating a level playing field for the providers of goods and
services. The Green Paper on Consumer Rights explicitly recog-
nises that progress towards such an objective has been slow,
inconsistent and obstructed by a wide range of varying national
priorities and exceptions. The welcome inclusion of new
Member States has further complicated a common under-
standing of consumer protection. This Review of the Consumer
Acquis presents the Commission's view of a process which
could lead to greater clarity, consistency and application of
existing Directives. But many consumer organisations argue that
it also introduces questions about the direction of consumer
policy as a whole.

2.4
The Directives that are included within this Review cover
a wide range of consumer contract law issues including doorstep
selling, timeshare, package travel, distance-selling, sale of goods
and unfair contract terms. However, not all Directives dealing
with consumer protection are considered in the Review as some
are considered too recent to be included, or fall within areas
being considered elsewhere by the Commission. The Timeshare
Directive has been highlighted in the Green Paper as requiring
urgent revision and a revised Directive is expected shortly. A
significant new area which is singled-out as requiring inclusion
in the principles of the acquis is the digital ‘environment’ which
presents the global challenges of e-commerce.

2.5

The Commission has reviewed the Directives through:

— a comparative analysis of their implementation into national

law,

— research into the perceptions of consumers and business,

‘Minimum harmonisation’

2.6
The well-established terminology used by those engaged
on consumer protection issues has the potential to create confu-
sion, hence an early explanation of some of the key concepts is
is where a Directive
included here.
imposes a set of minimum requirements to be enforced by the
Member State. This leaves open the possibility that stricter
requirements than those specified in the Directive can be
imposed by the Member State. ‘Maximum (or’ Full‘) harmonisa-
tion’ means that Member States must apply the rules in the
Directive and may not go further (‘floor and ceiling harmonisa-
tion’). Thus many consumer organisations have come to regard
full harmonisation as synonymous with a minimum level of
consumer protection and minimum harmonisation as offering
the possibility of a much greater level of protection.

2.7
The publication of the Green Paper marks the end of the
Commission's exploratory phase of the Review. The Commis-
sion asked for views on the Green Paper by 15 May 2007. The
Commission is now analysing the consultation responses, will
produce a summary of views and decide whether there is a need
for a legislative instrument, though this will take some months.
Any such proposal will be accompanied by an impact assess-
ment. ‘At the end of the exercise it should, ideally, be possible to say
to EU consumers “wherever you are in the EU or wherever you buy
from it makes no difference: your essential rights are the same”’ (4).

3. Summary of the Green Paper

The Green Paper sets out to provide a context in which
3.1
views from interested parties can be collected on the policy
options for the Consumer Acquis and some other specific
issues. It defines the main issues as:

— New Market Developments:

the majority of directives
comprising the Consumer Acquis fail to meet ‘the require-
ments of today's rapidly evolving markets’. Music downloads
and on-line auctions are cited as examples as is the exclusion
of software and data from the Consumer Sales Directive.

— Fragmentation of Rules: current directives allow Member
States to adopt a higher level of consumer protection in
national law. On a number of issues, such as the length of a
contract ‘cooling off’ period, there is a lack of coherence
between national legislations.

— workshops with Member State experts and contract law

stakeholders.

— Lack of Confidence: the majority of consumers believe that
businesses in another Member State are less likely to respect
consumer protection laws.

(2) http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/
320&format=HTML&aged=0&language=EN&guiLanguage=en.
(3) http://ec.europa.eu/consumers/overview/cons_policy/index_en.htm.

(4) http://ec.europa.eu/consumers/cons_int/safe_shop/acquis/green-

paper_cons_acquis_en.pdf.

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Official Journal of the European Union

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Based on earlier work the Commission then outlines two

3.2
positive strategies for revision of the Consumer Acquis.

1. Revised and fully harmonised legislation. On issues where
full harmonisation would not be possible a mutual recogni-
tion clause would apply,
‘for certain aspects covered by the
proposed legislation but not fully harmonised’.

— Option I: the vertical approach, would involve the amend-
ment of existing directives separately and, over time, they
would be brought into conformity with each other.

2. Revised legislation that would be based on minimum harmo-
nisation combined with a mutual recognition clause or with
the country of origin principle (5).

— Option II: the mixed approach, would require identifying
and extracting issues common to all directives and regu-
lating them consistently in a ‘horizontal instrument’. Some
specific ‘vertical’ adjustment of particular directives would
also be required.

A third strategy, that of ‘no legislative action’, is briefly
3.3
mentioned,
that existing problems
is pointed out
would not be resolved and inconsistencies between Member
States may be increased.

though it

The Green Paper then deals with the possible scope of a

3.4
Horizontal Instrument. Three options are suggested.

I. A framework instrument applicable to both domestic and
cross-border
transactions but which does not supersede
existing sector-specific rules, which would remain in force.
Financial services and insurance are given as examples.

3.6 Annex I — The Consultation

The majority of
the Green Paper contains the detailed and
highly structured consultation exercise in which respondents are
invited to state their views on a wide range of issues involving
general policy questions, matters of definition, matters of
contract law, issues of principle, and also questions of scope and
detail. The consultation begins with the three ‘policy’
issues
outlined above.

— The general legislative approach.

— The scope of a horizontal instrument.

— The degree of harmonisation.

For each issue the Commission poses a key question and
suggests three or four possible ways of response. There then
follows 27 specific questions relating to the directives under
consideration. The format again is to provide a short introduc-
tion to the issue, pose the main question — for example.
‘To
what extent should the discipline of unfair contract terms also cover
individually negotiated terms?’ or‘Should the length of the cooling-off
periods be harmonised across the consumer acquis?’ and suggest three
or four possible options where a response could be made.

II. An instrument applying only to cross-border contracts. This
would provide greater security and confidence for consu-
mers buying goods and services outside their own country
but could lead to different standards between domestic and
cross-border protection.

4. General Comments

III. A horizontal

instrument which only applied to distance
shopping — cross-border or domestic. This would replace
the Distance Selling Directive but could also lead to frag-
mentation between distance and face-to-face selling protec-
tion.

3.5
The next topic of the Green Paper will, for many, be seen
as the pivotal issue in the revision of the Consumer Acquis —
the degree of harmonisation. At present, Member States can
provide for higher levels of consumer protection than is allowed
for by the directives. This is known as ‘minimum harmonisa-
tion’. The focus and priority of consumer protection issues
varies considerably between Member States, sometimes with the
result of confusing consumers and deterring businesses from
cross-border marketing. Two possible options are presented for
consideration.

4.1
Over many years the EESC has supported, through its
work and Opinions, the primary objective of the EU's consumer
policy — that a high, uniform and consistent level of protection
is available to all. The Committee also supports the secondary
objective of enabling consumers to be informed and to make an
informed choice in a barrier-free marketplace. The structure of
the Green Paper makes it inevitable that the underlying tensions
in fully achieving these two objectives are brought
to the
surface.

(5) Mutual recognition would mean that Member States would retain the
possibility to introduce stricter consumer protection rules in their
national laws, but they would not be entitled to impose their own
stricter requirements on businesses established in other Member States
in a way which would create unjustified restrictions to the free move-
ment of goods or to the freedom to provide services. Application of the
country of origin principle would mean that a Member State would
retain the possibility to introduce stricter consumer protection rules in
its national law, but businesses established in other Member States
would only have to comply with the rules applicable in their home
country.

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Official Journal of the European Union

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annexed to the document reflects this complexity. This detailed
framework solicits responses from the many hundreds of orga-
nisational stakeholders who wish to make their views known. In
this Opinion, however, the EESC confines its comments to the
underlying major policy issues, because it considers that each
directive to be reviewed should be commented on separately, as
in its Opinion on the directive on distance contracts [Opinion
INT/334 on the Commission Communication COM(2006) 514
final, of 21 September 2006].

5.2
The main priority should be in making good the deficits
in the existing Directives and co-ordinating them with each
other.

5.3
‘Minimum harmonisation’ combined with a positive
approach by Member States to adopt consistently higher stan-
dards on consumer protection is likely to form the basis for the
major part of the consumer acquis for the foreseeable future.
For various (and varying) social and economic reasons Member
States will either wish to retain the level of consumer protection
they already enjoy or move in a measured way, at a pace of
their own choosing, towards a different level of protection. This
position respects and is much easier to reconcile with the prin-
ciple of subsidiarity. Nevertheless,
it also recognises the view
that various categories of consumers throughout the EU are
disadvantaged in their current level of protection or capacity to
seek redress and action is needed at both EU and Member State
level.

This does not mean that, in a case-by-case examination,
5.3.1
the internal
in very specific areas in which completion of
market
the possibility of maximum
harmonisation should not be considered, provided that a higher
level of consumer protection is ensured, possibly through regu-
lation.

is the prime concern,

5.4
The stated aim of putting the consumer in the driving
seat — in terms of knowledge of consumer rights, their capacity
to take action against suppliers and obtain redress — should
not be seen as an alternative to clear and proactively enforced
protection through a combination of EU and national law. Infor-
mation is a very different thing from protection. Indeed, the
balance of power in most market transactions normally lies
with the supplier and the majority of consumer law is designed
to maintain the rights of the purchaser.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

It

is

that

clear

already

continuing with

4.2
the
Consumer Acquis in its present form should not be regarded as
a long-terms option. Variation in law between Member States,
inconsistency in definition, the considerable discrepancy in the
way existing consumer legislation is applied and enforced and
lack of clarity in — or even the existence of — complaints and
redress procedures all have some effect in creating barriers to
the single market.

4.3
It is also apparent that the Commission see the Review
as an opportunity to look at some aspects of consumer policy
hitherto regarded as fundamental and explore whether they are
consistent with a vibrant single market, particularly one which
is competitive in terms of globalisation. In this respect, there are
similarities with other reviews being stimulated as a result of
implementing the Lisbon Agenda. A high, uniform level of
consumer protection is seen by some as an integral part of the
in emphasis to ‘redefine
European social model and a shift
EU Consumer policy so it most effectively contributes to two central
EU goals — creating economic growth and employment as well as
reconnecting Europe to its citizens’ might be regarded as challenging
this concept (6).

Although the task will be difficult, the EESC welcomes
4.4
the Review of the Consumer Acquis and supports the Commis-
sion in its stated aims of reducing internal market barriers
whilst maintaining a high level of consumer protection. The
Committee considers, however, that such efforts should not be
confined solely to the eight directives currently under considera-
tion;
the
22 directives set out on the list drawn up by the Commission in
May 2003.

they should instead cover,

in the future, at

least

The EESC wishes to participate in this debate actively
4.5
with the aim of strengthening the internal market
for the
benefit of all stakeholders — consumers, professionals, compa-
nies and citizens.

5. Specific Comments

5.1
Complex issues of policy, principle and law are raised in
the Green Paper. Member States have themselves developed a
though often consistent
corpus of consumer
between countries in its broad principles, varies in detail and
application. The systematic and extended consultation process

law which,

Brussels, 12 July 2007.

(6) Ms Meglena Kuneva, Commissioner for consumer protection policy
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/
256&format=HTML&aged=0&language=EN&guiLanguage=en.