8.8.2006   

EN

Official Journal of the European Union

C 185/71

1.1

In any community of law, the policy the community intends to pursue must be founded on a legal basis which defines the limits to the community's powers and the parameters of its remit. The European Union is a community of law and, as such, it must meet this requirement.

1.2

For a legal basis to be suitable, workable and effective, it needs to be clear, precise and independent. It must set out the objectives, founding principles and implementing criteria for the policy which the community of law intends to pursue, and cover all the policy areas for which it was designed.

1.3

With the adoption of the Maastricht Treaty, Article 129a of the Treaty became the new legal basis for action in the area of consumer protection policy in the European Union. It soon became apparent that it was an inadequate basis for developing a fully-fledged policy in this field.

1.4

The non-application of this legal basis over the years highlighted its inadequacies as a suitable and effective legal basis for promoting a genuine policy for the protection of consumer interests at Community level.

1.5

The changes introduced by the new Article 153 of the Amsterdam Treaty did not address these shortcomings. Nor did the texts proposed with a view to the adoption of the European Constitution.

1.6

Consumer policy is clearly one of the policy areas closest to European citizens. It can play a key role in influencing their commitment to the European ideal, insofar as the latter satisfies their needs and aspirations, which has not always been the case (1).

1.7

Unfortunately, the Commission's approach to consumer protection policy (2) confirms a worrying decline in the promotion and protection of consumer interests, thus underlining the need and urgency to give careful consideration to the legal basis of the Treaty in this regard.

1.8

These are the issues addressed in the present opinion. In it the EESC notes that, in addition to the necessary political will to further consumer protection policy by promoting increased consumer involvement and protection of consumer interests in all Community policy areas, there is a need for an in-depth study on overhauling the legal framework in order to establish a firm foundation for consumer protection policy.

1.9

Aided by contributions from a large number of European lawyers with universally recognised expertise in this subject, the EESC concludes by putting forward a proposal for a new legal basis for consumer policy. This should significantly help to improve, simplify and even reduce regulation. It recommends to the Commission, the Council and the Member States that such a proposal be taken into consideration with a view to the next revision of the Treaty text.

2.1

When the EESC authorised this own-initiative opinion, its purpose was to encourage a detailed examination of the legal basis to be selected for consumer policy at European level (i.e. Treaty Article 153), bringing it in line with both the constitutional text submitted to the Member States and secondary law. It also sought to ensure the involvement of stakeholders' representatives with an interest in this issue and of specialists in Community consumer law.

2.1.1

There was widespread feeling that the current shortcomings in the drafting of Article 153 were at the root of why, in practice, this article is not used as the legal basis for secondary legislation in promoting consumer rights and interests and developing consumer policy in the EU. The latter would therefore have much to gain from a suitable, workable and effective legal framework.

2.2

The European institutions as a whole and, in particular, civil society organisations, consumer bodies and the social stakeholders would most certainly be the first to benefit from any improvement in the legal basis of consumer policy in the Treaty.

2.2.1

As the institutional forum representing organised civil society, the EESC was felt to be the most appropriate body to successfully take this task on board, consulting with the social stakeholders and backed up by university experts in the field.

2.2.2

The EESC feels that consumer policy is clearly a policy that most closely touches grassroots concerns. It may — and indeed must — have a major influence on grassroots support for the European ideal as people see that ideal meet their own needs and aspirations.

2.2.3

On 14 October 2005, the EESC heard the views of numerous representatives who had responded to a questionnaire devised for this purpose. The views and suggestions received provided a more solid basis for the opinion. The EESC takes this opportunity to warmly thank all those whose contributions made it possible to draw up this opinion (3).

3.1

The current legal basis for consumer policy is Article 153, which appears in Title XIV of the Treaty under the heading Consumer protection. The article reads as follows:

3.2

If consumer protection is to become part of the EU's remit, then it must be subject to a specific Treaty provision, in line with Treaty Article 5 which, in its consolidated version, reads as follows:

‘The European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors shall exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the Treaties establishing the European Communities and of the subsequent Treaties and Acts modifying and supplementing them and, on the other hand, by the other provisions of this Treaty.’

3.3

This rule — under which the Member States have the power to determine their own jurisdiction — is of key importance, since a text which is deficient, imprecise or contradictory may invalidate any subsequent provisions adopted by the European institutions under the Treaty.

3.4

It would be well at this stage to recall the Court of Justice judgment of 5 October 2000 which states that a measure adopted on the basis of Article 100a (now Article 95) of the Treaty must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market. The Court notes that, if a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise of fundamental freedoms or of distortions of competition liable to result therefrom were sufficient to justify the choice of Article 100a as a legal basis, judicial review of compliance with the proper legal basis might be rendered nugatory (5).

3.5

This requirement for a legal basis that is clear and thus verifiable at international level must also be placed on the political agenda as a fundamental and incontrovertible sign of the need for consumer protection policy. In this context, it would be well to recall the Single European Act of 17 and 28 February 1986, which to some extent filled a gap in the Rome Treaty by introducing a separate environment title as Articles 130r to 130t (now Articles 174 to 176). The objectives set out in Article 175 and the criteria laid down in the same article for Community action on the environment have clearly done much to foster the emergence of an effective body of standards in this area.

3.5.1

A comparison between the current Treaty Articles 175 and 153 clearly shows that the quality of the legal basis itself is a crucial factor in any subsequent action. The environmental objectives are set out clearly and precisely.

Moreover, Article 175 establishes the principles underpinning Community action on this front.

The technical parameters laid down in Article 175(3) also help secure the rational and effective application of environment policy.

3.5.2

Where the Community legislator has discretionary powers as to the appropriateness of any intended measures, the quality of the legal basis is obviously of critical importance, as this limits the potential for obvious error, misuse of power, or any clear overshoot of the discretionary remit (6).

4.1

In the light of the lessons that can be drawn from the above observations, it has to be said that the current Treaty Article 153 no longer provides a legal basis that affords adequate safeguards for consumer protection objectives.

4.2

It should be noted that, in essence, European consumer law has grown up on the basis of Treaty Article 95 and owes much to the impetus generated by the development of the single market. Consumer protection is, of course, supposed to be a cross-sectoral policy, and explicit mention of the need to take account of it is also made in other parts of the Treaty. It is broadly agreed, however, that, as it stands, Article 153 falls short of the mark.

4.3

It has also been noted that Article 153 (or formerly Article 129a) has been used as the basis for measures to protect and defend consumer interests in exceptional cases only.

4.4

As well as voicing the criticism that consumer policy is a mere adjunct to the rules on the development of the single market, consideration must also be given to the impact, mentioned above, of the Court of Justice judgment of 5 October 2000 (7). The uncertainty thrown up by this case law may even result in challenges — inter alia through referrals for preliminary rulings — to the legal basis of certain consumer protection directives, such as those on guarantees and doorstep sales.

4.5

Moreover, the text as it stands establishes the yardstick of a high level of consumer protection. As defined in Article 153, this high level of consumer protection does not necessarily mean that Member States' legal systems do in fact provide the optimum safeguards. Indeed, Article 153(5) gives Member States the right in such cases to maintain more stringent protective measures provided they are compatible with the Treaty.

4.5.1

Furthermore, it is by no means easy to define what is meant by a high level of protection. Article 153 fails to lay down any parameters, resulting in potential difficulties of interpretation.

4.6

The legal basis is now in need of review in the light of the considerations outlined below.

4.6.1

Consumer protection policy should be part of the Union's own battery of powers rather than an adjunct to the Member States' own policies. Indeed, it is somewhat paradoxical that consumer protection, which is supposedly a tool to help complete the single market, should fall within the remit of the Member States.

4.6.2

The health, safety and economic interests of consumers are cited as areas in which the European Union has a role to play. Indeed, these interests should more properly be seen as objectives that most certainly deserve broadening. For instance, is it only consumers' economic interests that need to be taken into consideration? There is a clear inconsistency between promoting these interests and taking steps to help protect them.

4.6.3

With regard to consumers' right to information, education and to organise themselves in order to safeguard their interests, these are principles that should be recognised as fundamental yardsticks of Union policy.

4.6.4

The criteria for determining what is meant by a high level of protection are not specified. These ought to be outlined in the Treaty itself.

4.6.5

Any discussion of an independent legal basis for consumer protection will have to take account of the key priority that must be given to Community policy in both substance and form. The ‘dual subsidiarity’ principle is obviously restrictive and paralyses, at both European and national level, any policy designed to enhance consumer protection. Hence, the ‘dual subsidiary’ provided for under Article 153 clearly needs to be abandoned.

4.6.6

The legal basis under the Treaty should seek not only to protect and defend consumers but to give them a pro-active role as well. Consumers are citizens, who clearly must also have a right to a say and to be heard on any options society might propose.

4.6.7

Consideration should also be given to whether the relevant Treaty provisions should not provide for direct access to the Court of Justice by consumer associations as representative groups with a stake in European Union activities.

4.6.8

Also, the idea of consumer protection underpinning the current text is restrictive in that it focuses virtually exclusively on the benefits of information.

5.1

What are the broad yardsticks that must determine the quality of a legal basis in any treaty?

From the points made above, it is clear that any legal basis needs to:

These factors are vital in any attempt to resolve the difficulties described above.

5.2

Attendant issues may also be included to improve the legal basis. Consideration must therefore be given to the various different options for harmonisation. The Commission, among others, backs a policy of maximum or full harmonisation. However, the level of protection selected must be genuinely high, otherwise there is a risk that maximum or full harmonisation will prove detrimental to consumer interests.

5.3

The proposed text seeks to amend Treaty Article 3(1)(t) by clearly indicating that policies to promote and protect consumer interests are among the objectives to be pursued by the institutions.

5.4

The proposed Article 153 is three-pronged:

5.4.1

It lists the customary objectives of EU consumer policy, albeit with certain special features:

5.4.2

Expression may be given to the following principles when drawing up Article 153:

These five principles are vital for the successful implementation of the policy described above.

5.4.3

The proposed text states in the usual way that the requirements underpinned here by an independent legal basis also cannot be ignored when working out other EU policies.

5.4.4

Certain parameters need to be taken into consideration when drawing up these measures. The concept of a high level of protection will reflect, among other things, available social and economic data which make it possible to accurately identify the behaviour of consumers when acquiring and using products and services placed on the market. Explicit recognition of class actions must be also be included.

5.4.5

The proposal for Article 153a sets out the policy to be pursued by the Council.

One issue discussed is the direct impact of directives. The proposed wording gives priority to regulations as a tool of harmonisation, obviating the need for the ongoing debate on the precise impact of directives. The result is a flexible approach under which Member States can make their views known when they intend to maintain or introduce protection measures.

This approach fosters maximum harmonisation, but subject to a case-by-case assessment.

5.4.6

Article 153 also introduces a new provision whereby consumer associations are deemed to be ‘addressees’ within the meaning of Treaty Article 230. In other words, these associations may institute proceedings directly before the Court against any Community acts that infringe the Treaty provisions.

a)

define and apply effective, proportionate and dissuasive penalties in the event of infringements of measures imposing obligations or prohibitions designed to protect consumers;

b)

put an end to such infringements;

c)

provide for simplified judicial and non-judicial procedures to prevent and remedy infringements of consumers' rights and interests and for fair compensation for losses incurred.