EU Law and Consumer Protection- new trends

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EU Law and Consumer Protection-new trends

• Lecturer Razvan Viorescu
• Suceava University

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What is happening?

• European single market driving new EC consumer
  policy and law
• Harmonisation
• Aims
• Competitive markets
• Consumer protection
• Consumer empowerment
• Cross border fraud
• New style law
• National law reform

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Notion of 'consumer' General overview

• Consumers' rights
• The consumer is, according to the law, any
  natural person, or group of natural persons
  composing an association, who acquires, obtains,
  uses or consumes products or services, outside
  his trade or profession.
• Notion of 'consumer' means any natural person
  who, in contracts covered by the Directive 93/13,
  is acting for purposes which are outside his
  trade, business or profession
• The European Court of Justice, in judgment Cape
  Snc (22 November 2001 n.C-541-542/1999) has
  stated that consumer is only a physical person
  and can not be extended to companies.

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Consumers' rights

• The consumer has the following main rights
• the right to be protected against the risks of
  purchasing a product or receiving a service which
  may compromise their life, health or safety or
  which may negatively  affect their rights or
  legitimate interests 
• the right to have access to complete, precise and
  correct information regarding the essential
  characteristics of the products acquired and the
  services provided so that the decisions he takes
  in this respect best correspond   to his needs,
  as well as the right to get proper education in
  his quality of consumer 
• the right to have access to markets which provide
  a wide variety of quality products and services
• the right to compensation, by legal means, for
  damages generated by the inadequate quality of
  products and services
• the right to join in consumers associations for
  the purpose of defending their interests.

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Consumer law

• overview of relevant EU Treaty articles and
  consumer programmes
• responsibilities of member states EU
  institutions
• how consumer rights have been included in
  legislative texts
• consumer acquis door-to-door selling, distance
  selling, injunctions, package travel, timeshare,
  consumer guarantees, price indication, unfair
  contract terms
• transport passenger rigths, competition, food
  law, labelling, enforcement co-operation,
  Alternative Dispute Resolution

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Harmonisation of EC Consumer Law in the European
Union

• Aims creating an Internal Market for the
  benefit of businesses and consumers
• Article 95 EC harmonisation of law for creation
  of Internal Market Article 153 consumer
  protection
• Methods Directives (flexibility, discretion)
• Consumer Protection Directives (dual aims
  competition and consumer protection) contract
  law (doorstep sales, consumer credit), tort
  (delict) (product liability), administrative law
  (product safety)
• Challenges differences in implementation,
  differences in application procedures, legal
  cultures

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EC Consumer Law

• Internal Market building - balancing interests of
  consumers with interests of businesses,
• Directives mostly minimum harmonisation
  striving towards maximum harmonisation,
• Challenges differences in implementation of
  Directives, differences in application is
  maximum harmonisation possible? Complete
  harmonisation?

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The main aspects of the protection of consumers
economic interests

• EU policies shall ensure a high level of consumer
  protection (art.38 Charter of Fundamental Rights,
  approved in December 2000)
• The economic interests of consumers are protected
  in the European Union Member States through
  several directives which are approximating the
  rules of the following contracts Distance
  contracts Distance contracts for financial
  services contacts negotiated away from business
  premises purchase of the rights to use immovable
  properties on a timeshare basis sale of consumer
  goods and associated guarantees package travel.
  The position of consumer in air transports and in
  financial services has been also regulated
  through several European directives

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The main aspects of the protection of consumers
economic interests

• Prohibition for the trader to exploit his
  position of power in relation to a consumer
  prohibition of unfair terms in consumer contracts
  (Directive 93/13) prohibition of unfair
  commercial practices (directive n.2005/29/CE)
• Right for the consumer of an effective
  administrative or judicial protection. Interim
  Measures (also by way of summary procedure).
  Recognition of the role of the consumer
  association aimed at protecting collective
  interests. Cooperation between national
  authorities responsible for the enforcement of
  consumer protection laws (Regulation n.2006 of
  2004)

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The impact of Consumer Law to other EU policies
(notably Competition Law and Environmental Law)

• According to art.153 of the EC Treaty Consumer
  protection requirements shall be taken into
  account in defining and implementing other
  Community policies and activities.
• Treaty establishing the European Community
  (Article 153)
• 1.   In order to promote the interests of
  consumers and to ensure a high level of consumer
  protection, the Community shall contribute to
  protecting the health, safety and economic
  interests of consumers, as well as to promoting
  their right to information, education and to
  organise themselves in order to safeguard their
  interests.
• 2.   Consumer protection requirements shall be
  taken into account in defining and implementing
  other Community policies and activities.
• 3.   The Community shall contribute to the
  attainment of the objectives referred to in
  paragraph 1 through
• (a)  measures adopted pursuant to Article 95 in
  the context of the completion of the internal
  market
• (b)  measures which support, supplement and
  monitor the policy pursued by the Member
  States.4.   The Council, acting in accordance
  with the procedure referred to in Article 251 and
  after consulting the Economic and Social
  Committee, shall adopt the measures referred to
  in paragraph 3(b).
• 5.   Measures adopted pursuant to paragraph 4
  shall not prevent any Member State from
  maintaining or introducing more stringent
  protective measures. Such measures must be
  compatible with this Treaty. The Commission shall
  be notified of them.

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Making EC consumer law work for consumers

• Access to law access to justice Green Paper
  on Access of Consumers to Justice (1993), Action
  Plan 1996,
• European Consumer Centres Network (ECC-Net) 2005
  information on rights, advice on ADR,
  assistance with settling disputes
• ADR (Green Paper, European Code of Conduct for
  mediators, Draft Directive on Civil Mediation)
• Consumer Complaint Form
• Civil litigation harmonisation process
  commenced.

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Harmonising civil procedure rules EC competence

• Maastricht (EU pillar judicial cooperation in
  civil matters)
• Amsterdam (establishing an area of freedom,
  security and justice EC policy)
• Tampere European Council
• The Hague programme 2005 2010
• (better access to justice, mutual recognition of
  judicial decisions and increased convergence of
  procedural law).

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Harmonising civil procedure rules

• Mutual recognition of judicial decisions in civil
  and commercial matters
• Documents, evidence, order for payments, small
  claims
• European Judicial Network in Civil and Commercial
  Matters (judicial cooperation and providing
  information to facilitate access to justice)
• Legal Aid Directive.

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Further challenges to harmonisation legal
cultures

• The enlarged European Union a melting pot of
  legal traditions and legal cultures
• Different approaches to law and litigation,
  different legal, administrative and judicial
  structures, differences in nature of legal
  profession, different perceptions of law and
  legality
• All Member States have to take into account the
  Regulation on cooperation between national
  authorities responsible for the enforcement of
  consumer protection laws (CE n.2006/2004)
• Aims of the Rgulation Establishment of public
  authorities responsible for enforcement of the
  laws that protect consumers interests in dealing
  with intra-Community infringements establishment
  of a network among the different public
  authorities based on the principle of loyal
  cooperation which include a minimum of common
  investigation and enforcement powers
  strengthening the cooperation between public
  authorities and consumer associations .

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Institutional Market surveillance for consumers
protection European cases

• Romania
• Bulgaria
• Slovenia
• Czech Republic
• Poland
• Hungary
• Estonia

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Market surveillance Romania

• The National Authority for Consumer Protection
  (NACP) (accountable directly to the Prime
  Minister)
• Headquarters and 42 regional offices (76 684
  760 people) every office is an independent
  legal entity
• Control over the GPSD, RAPEX contact point and
  some of the New Approach Directives (LVD, TOYS,
  EMC)
• State Inspectorate for Boilers, Pressure Vessels
  and Hoisting Equipment (reporting to the Ministry
  of Economy and Finance) Headquarters 15
  regional bureaux responsible for SPV, GAD, LIFTS
• Romanian Bureau for Legal Metrology (subordinated
  to the Government) Headquarters and 8 regional
  offices NAWI
• Labour Inspection (under Ministry of Labour, the
  Family and Equal Opportunities) Headquarters
  and 42 regional offices LVD, MD

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Market surveillance Bulgaria

• Consumer Protection Commission (within the
  Ministry of Economy and Energy, which is
  responsible for legislation issues)
• Headquarters and 6 regional branches
• Composition of the Commission 5 members
  appointed for a five-year term by the Government
• Does the controls and proceedings on general
  product safety and reports to RAPEX
• 136 people dealing with market control
• Co-operate with Communications Regulatory
  Commission (chairperson appointed by the Prime
  Minister, deputy and two other members by
  National Assembly and 1 member by the President
  of the Republic) Financial Supervision
  Commission Commission for Competition Protection
  (these two reporting to the National Assembly)

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Market surveillance Slovenia

• The Consumer Protection Office (under Ministry of
  Economy) regulator and legislation responsible
  authority
• Market Inspectorate (Ministry of Economy)
  surveillance of non-food products, Headquarters
  (110 inspectors, 28 in market surveillance
  activities) and 14 regional offices
• Surveillance on consumer protection, GPSD plus
  LVD, EMC, RTTE, PPE, MD, GAD, RCD, CPD may
  forbid the sale and impose fines while criminal
  offences
• Budget Euro 177 000 spend on laboratory testing
  and analyses
• Health Inspectorate (Ministry of Health) TOYS
• Labour Inspectorate (Ministry of Labour) LIFTS,
  ATEX

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Market surveillance Czech Republic

• Trade Inspection principal authority
  (subordinated to Ministry of Industry and Trade)
• Headquarters and 7 regional branches
• 420 employees (23 in GPSD), annual budget around
  Euro 8 million
• Random competence for product safety control,
  proceedings and fines (total fines Euro 650 000,
  average around Euro 400)
• Telecommunication devices (Czech
  Telecommunication Office reporting to the
  Ministry of Economy until 1 November 1996, later
  under Ministry of Transport and Communications,
  since 30 June 2000 independent within the
  structure of the Government)
• Consumer Advisory Council (under Ministry of
  Industry and Trade) communication between
  governmental and non-governmental consumer
  organisations

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Market surveillance Poland

• Office of Competition and Consumer Protection
  (subordinated to the Prime Minister)
• Headquarters and 9 regional branches (280 people,
  14 in Market Surveillance Department)
• Budget Euro 10 mln
• Responsible for legislation and proceedings in
  the field of general product safety
• The New Approach Directives Office of
  Competition and Consumer Protection (monitoring
  the system) plus 9 specialised authorities
  (subordinated to various ministries)
• Steering committee as a coordination body
• Outside the market surveillance but still survey
  the market are the following
• Centralised Financial Supervision Authority
  (Prime Minister) Energy Regulatory Office
  (Minister of Economy) Bureau for Chemical
  Substances and Preparations (Minister of Health)
  
• Decentralised (Headquarters responsible to
  minister, 16 regional branches to regional
  governors and 379 subordinate to county
  authorities) Agricultural and Food Quality
  Inspection The Main Pharmaceutical Inspectorate
  Chief Sanitary Inspectorate

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Market surveillance Hungary

• General Inspectorate for Consumer Protection
  (GICP) (subordinated to Ministry of Economy and
  Transport)
• Headquarters (160 people, 50 in market
  surveillance) upper instance to
• 19 regional (230 people, 160 in market
  surveillance) offices (under Ministry of Local
  Government and Territorial Development)
• Budget Euro 4,3 million for market surveillance
  activities of HQ and Euro 6 million for regional
  bureaux
• Inspects the safety of the products, monitors the
  law, operates the Central Market Surveillance
  Information System, does the inquiries based on
  consumers complaints, sole responsible for GPSD
  and several New Approach Directives LVD, TOYS,
  MD, EMC, CPD

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Market surveillance Estonia

• Consumer Protection Board (under Ministry of
  Economic Affairs and Communications)
  responsible for GPSD, supervising the consumer
  market and RAPEX point
• Headquarters (62 people) and 13 regional offices
  3 inspectors in HQ and 15 in regional bureaux,
  who also respond to consumer complaints
• Budget Euro 1,1 million
• Technical Inspectorate (Ministry of Economic
  Affairs and Communications) responsible for
  LVD, EMC, MD, GAD, SPV, constructions, mines,
  explosives and chemicals
• Communications Board (Ministry of Economic
  Affairs and Communications) supervises the
  RTTE, radio and television equipment
• Labour Inspectorate (Ministry of Social Affairs)
  PPE
• Health Protection Inspectorate (Ministry of
  Social Affairs) toys and cosmetics
• The co-ordination forum is Market Supervision
  Council, which advices the Ministry of Economic
  Affairs and Communications the chairperson is
  deputy Secretary of State in the Ministry

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CONCLUSIONS

• Future directions for European Consumer Law
• Greater coordination, internal coherence or
  substantive laws, complete harmonisation
• Emphasis on enforcement coexistence of public
  and private enforcement measures
• Greater procedural harmonisation.