EU Law and EU Law and Consumer Consumer Protection-Protection-new trendsnew trends

Lecturer Razvan ViorescuLecturer Razvan ViorescuSuceava Suceava UniversityUniversity

What is happening?What is happening?

European single market driving new EC European single market driving new EC consumer policy and lawconsumer policy and law HarmonisationHarmonisation AimsAims

Competitive marketsCompetitive markets Consumer protectionConsumer protection Consumer empowermentConsumer empowerment

Cross border fraudCross border fraud New style lawNew style law National law reformNational law reform

Notion of Notion of 'consumer''consumer' General overviewGeneral overview

Consumers' rightsConsumers' rights The The consumerconsumer is, according to the law, any is, according to the law, any

natural person, or group of natural persons natural person, or group of natural persons composing an association, who acquires, obtains, composing an association, who acquires, obtains, uses or consumes products or services, outside uses or consumes products or services, outside his trade or profession.his trade or profession.

Notion of Notion of 'consumer''consumer' means any natural person means any natural person who, in contracts covered by thwho, in contracts covered by thee Directive Directive 93/13 93/13, , is acting for purposes which are outside his trade, is acting for purposes which are outside his trade, business or professionbusiness or profession

The European Court of Justice, in judgment The European Court of Justice, in judgment Cape Cape Snc Snc (22 (22 NNovember 2001 n.C-541-542/1999) has ovember 2001 n.C-541-542/1999) has stated that stated that consumer consumer is is onlyonly a ph a phyysical person sical person and can not be extended to companiesand can not be extended to companies..

Consumers' rightsConsumers' rightsThe consumer has the following main rightsThe consumer has the following main rights:: the right to be protected against the risks of purchasing a the right to be protected against the risks of purchasing a

product or receiving a serviceproduct or receiving a service which may compromise their which may compromise their life, health or safety or which may negatively  affect their life, health or safety or which may negatively  affect their rights or legitimate interests;rights or legitimate interests;  

the right to have access to complete, precise and correct the right to have access to complete, precise and correct information regarding the essential characteristics of the information regarding the essential characteristics of the products acquired and the services providedproducts acquired and the services provided so that the so that the decisions he takes in this respect best correspond   to his decisions he takes in this respect best correspond   to his needs, as well as the right to get proper education in his needs, as well as the right to get proper education in his quality of consumer; quality of consumer; 

the right to have access to markets which provide a wide the right to have access to markets which provide a wide variety of quality products and servicesvariety of quality products and services;;

the right to compensation, by legal means, for damages the right to compensation, by legal means, for damages generated by the inadequate quality of products and generated by the inadequate quality of products and servicesservices;;

the right to join in consumers associations for the purpose of the right to join in consumers associations for the purpose of defending their interests.defending their interests.

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

Harmonisation of Harmonisation of EC Consumer EC Consumer LLaw in the European Unionaw in the European Union

Aims – creating an Internal Market – for the benefit Aims – creating an Internal Market – for the benefit of businesses and consumersof businesses and consumers

Article 95 EC Article 95 EC – harmonisation of law for creation of Internal – harmonisation of law for creation of Internal Market; Market; Article 153 – consumer protection – Article 153 – consumer protection –

Methods – Directives (flexibility, discretion)Methods – Directives (flexibility, discretion)Consumer Protection Directives Consumer Protection Directives (dual aims – competition (dual aims – competition

and consumer protection) – contract law (doorstep sales, and consumer protection) – contract law (doorstep sales, consumer credit), tort (consumer credit), tort (delictdelict) (product liability), ) (product liability), administrative law (product safety) administrative law (product safety)

Challenges – differences in implementation, Challenges – differences in implementation, differences in application – procedures, legal differences in application – procedures, legal culturescultures

EC Consumer LawEC Consumer Law

Internal Market building - balancing Internal Market building - balancing interests of consumers with interests of interests of consumers with interests of businesses,businesses,

Directives – mostly minimum Directives – mostly minimum harmonisation – striving towards harmonisation – striving towards maximum harmonisation,maximum harmonisation,

Challenges: differences in Challenges: differences in implementation of Directives, implementation of Directives, differences in application – is maximum differences in application – is maximum harmonisation possible? Complete harmonisation possible? Complete harmonisation?harmonisation?

The main aspects of the protectionThe main aspects of the protection of consumer’s economic interests of consumer’s economic interests

EU policiesEU policies shall ensure a high level of consumer shall ensure a high level of consumer protection (art.38 Chartprotection (art.38 Charterer of Fundamental of Fundamental Rights, approved in December 2000)Rights, approved in December 2000)

The economic interests of consumersThe economic interests of consumers are protected are protected in the European Union Member States through in the European Union Member States through several directivesseveral directives which are which are approximating the approximating the rules ofrules of the following contracts the following contracts:: Distance Distance contracts; Distance contracts for financial contracts; Distance contracts for financial services; contacts negotiated away from services; contacts negotiated away from business premises; purchase of the rights to use business premises; purchase of the rights to use immovable properties on a timeshare basis; sale immovable properties on a timeshare basis; sale of consumer goods and associated guaranteesof consumer goods and associated guarantees; ; package travel. Thpackage travel. The position of consumer in air e position of consumer in air transports and in financial services has been also transports and in financial services has been also regulated through several regulated through several EEuropean directivesuropean directives

The main aspects of the protectionThe main aspects of the protection of consumer’s economic interests of consumer’s economic interests

Prohibition for the trader to exploit his position of Prohibition for the trader to exploit his position of power in relation to a consumerpower in relation to a consumer: prohibition of : prohibition of unfair terms in consumer contractsunfair terms in consumer contracts ( (DDirective irective 93/13)93/13);; prohibition of unfair commercial prohibition of unfair commercial practicespractices ( (directive n.2005/29/CE)directive n.2005/29/CE)

Right Right for the consumer for the consumer of aof an effectiven effective administrative or judicial protectionadministrative or judicial protection. Interim . Interim MeasuresMeasures (also by way of summary procedure) (also by way of summary procedure). . Recognition of the role of the consumer Recognition of the role of the consumer association aimed at protecting association aimed at protecting collectivecollective interests.interests. C Cooperation between national ooperation between national authorities responsible for the enforcement of authorities responsible for the enforcement of consumer protection lawsconsumer protection laws (Regulation n.2006 of (Regulation n.2006 of 2004)2004)

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

Environmental Law)Environmental Law)According to art.153 of the EC Treaty Consumer protection requirements According to art.153 of the EC Treaty Consumer protection requirements

shall be taken into account in defining and implementing other shall be taken into account in defining and implementing other Community policies and activities.Community policies and activities.

Treaty establishing the European Community (Article 153)Treaty establishing the European Community (Article 153) 1.   In order to promote the interests of consumers and to ensure a high level of consumer 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 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 interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.organise themselves in order to safeguard their interests.

2.   Consumer protection requirements shall be taken into account in defining and 2.   Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.implementing other Community policies and activities.

3.   The Community shall contribute to the attainment of the objectives referred to in paragraph 3.   The Community shall contribute to the attainment of the objectives referred to in paragraph 1 through:1 through:

(a)  measures adopted pursuant to Article 95 in the context of the completion of the internal (a)  measures adopted pursuant to Article 95 in the context of the completion of the internal market;market;

(b)  measures which support, supplement and monitor the policy pursued by the Member (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 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 after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 3(b).paragraph 3(b).

5.   Measures adopted pursuant to paragraph 4 shall not prevent any Member State from 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 maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. The Commission shall be notified of them.compatible with this Treaty. The Commission shall be notified of them.

Making EC consumer law work for Making EC consumer law work for consumers:consumers:

Access to law – access to justice – Green Access to law – access to justice – Green Paper on Paper on Access of Consumers to Justice Access of Consumers to Justice (1993), Action Plan 1996,(1993), Action Plan 1996,

European Consumer Centres Network (ECC-European Consumer Centres Network (ECC-Net) 2005 – information on rights, advice on Net) 2005 – information on rights, advice on ADR, assistance with settling disputes;ADR, assistance with settling disputes;

ADR (Green Paper, European Code of ADR (Green Paper, European Code of Conduct for mediators, Draft Directive on Conduct for mediators, Draft Directive on Civil Mediation);Civil Mediation);

Consumer Complaint Form;Consumer Complaint Form; Civil litigation – harmonisation process Civil litigation – harmonisation process

commenced.commenced.

Harmonising civil procedure rules – Harmonising civil procedure rules – EC competence:EC competence:

Maastricht (EU pillar – judicial cooperation Maastricht (EU pillar – judicial cooperation in civil matters); in civil matters);

Amsterdam (establishing an ‘area of Amsterdam (establishing an ‘area of freedom, security and justice’ – EC policy);freedom, security and justice’ – EC policy);

Tampere European Council;Tampere European Council;The Hague programme 2005 – 2010The Hague programme 2005 – 2010 (better access to justice, mutual (better access to justice, mutual

recognition of judicial decisions and recognition of judicial decisions and increased convergence of procedural law).increased convergence of procedural law).

Harmonising civil procedure rules:Harmonising civil procedure rules:

Mutual recognition of judicial Mutual recognition of judicial decisions in civil and commercial decisions in civil and commercial matters;matters;

Documents, evidence, order for Documents, evidence, order for payments, small claims;payments, small claims;

European Judicial Network in Civil and European Judicial Network in Civil and Commercial Matters (judicial Commercial Matters (judicial cooperation and providing information cooperation and providing information to facilitate access to justice);to facilitate access to justice);

Legal Aid Directive.Legal Aid Directive.

Further challenges to Further challenges to harmonisation – legal culturesharmonisation – legal cultures

The enlarged European Union – a ‘melting pot’ of legal The enlarged European Union – a ‘melting pot’ of legal traditions and legal cultures:traditions and legal cultures:

Different approaches to law and litigation, different legal, Different approaches to law and litigation, different legal, administrative and judicial structures, differences in nature of administrative and judicial structures, differences in nature of legal profession, different perceptions of law and legality;legal profession, different perceptions of law and legality;

All All Member States –Member States – have to take into account the 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: Aims of the Rgulation: Establishment of public authorities Establishment of public authorities responsible for enforcement of the laws that protect responsible for enforcement of the laws that protect consumers’ interests in dealing with intra-Community consumers’ interests in dealing with intra-Community infringements; establishment of a network among the infringements; establishment of a network among the different public authorities based on the principle of loyal different public authorities based on the principle of loyal cooperation which include a minimum of common cooperation which include a minimum of common investigation and enforcement powers; strengthening the investigation and enforcement powers; strengthening the cooperation between public authorities and consumer cooperation between public authorities and consumer associationsassociations . .

Institutional Institutional Market surveillanceMarket surveillance for for consumers protectionconsumers protection – Europe – European an

casescases RomaniaRomania BulgariaBulgaria SloveniaSlovenia Czech RepublicCzech Republic PolandPoland Hungary Hungary EstoniaEstonia

Market surveillance – Market surveillance – RomaniaRomania

The National Authority for Consumer ProtectionThe National Authority for Consumer Protection (NACP) (accountable directly to the Prime Minister)(NACP) (accountable directly to the Prime Minister)

Headquarters and 42 regional offices (76 + 684 = 760 Headquarters and 42 regional offices (76 + 684 = 760 people) – every office is an independent legal entitypeople) – every office is an independent legal entity

Control over the GPSD, RAPEX contact point and some of Control over the GPSD, RAPEX contact point and some of the New Approach Directives (LVD, TOYS, EMC)the New Approach Directives (LVD, TOYS, EMC)

State Inspectorate for Boilers, Pressure Vessels and State Inspectorate for Boilers, Pressure Vessels and Hoisting Equipment Hoisting Equipment (reporting to the Ministry of Economy (reporting to the Ministry of Economy and Finance) – Headquarters + 15 regional bureaux– and Finance) – Headquarters + 15 regional bureaux– responsible for SPV, GAD, LIFTSresponsible for SPV, GAD, LIFTS

Romanian Bureau for Legal Metrology Romanian Bureau for Legal Metrology (subordinated to (subordinated to the Government) – Headquarters and 8 regional offices – the Government) – Headquarters and 8 regional offices – NAWI NAWI

Labour Inspection Labour Inspection (under Ministry of Labour, the Family (under Ministry of Labour, the Family and Equal Opportunities) – Headquarters and 42 regional and Equal Opportunities) – Headquarters and 42 regional offices – LVD, MDoffices – LVD, MD

Market surveillance – Market surveillance – BulgariaBulgaria

Consumer Protection Commission Consumer Protection Commission (within the Ministry (within the Ministry of Economy and Energy, which is responsible for legislation of Economy and Energy, which is responsible for legislation issues)issues)

Headquarters and 6 regional branchesHeadquarters and 6 regional branches Composition of the Commission: 5 members appointed for a Composition of the Commission: 5 members appointed for a

five-year term by the Governmentfive-year term by the Government Does the controls and proceedings on general product Does the controls and proceedings on general product

safety and reports to RAPEXsafety and reports to RAPEX 136 people dealing with market control136 people dealing with market control Co-operate with: Co-operate with: Communications Regulatory Communications Regulatory CommissionCommission

(chairperson appointed by the Prime Minister, deputy and (chairperson appointed by the Prime Minister, deputy and two other members by National Assembly and 1 member by two other members by National Assembly and 1 member by the President of the Republic); the President of the Republic); Financial Supervision Financial Supervision CommissionCommission; ; CommissionCommission for Competition Protection for Competition Protection (these two reporting to the National Assembly)(these two reporting to the National Assembly)

Market surveillance – Market surveillance – SloveniaSlovenia

The Consumer Protection Office The Consumer Protection Office (under Ministry of (under Ministry of Economy) – regulator and legislation responsible authorityEconomy) – regulator and legislation responsible authority

Market Inspectorate Market Inspectorate (Ministry of Economy) – surveillance (Ministry of Economy) – surveillance of non-food products, Headquarters (110 inspectors, 28 in of non-food products, Headquarters (110 inspectors, 28 in market surveillance activities) and 14 regional officesmarket surveillance activities) and 14 regional offices

Surveillance on consumer protection, GPSD plus: LVD, EMC, Surveillance on consumer protection, GPSD plus: LVD, EMC, R&TTE, PPE, MD, GAD, RCD, CPD; may forbid the sale and R&TTE, PPE, MD, GAD, RCD, CPD; may forbid the sale and impose fines while criminal offencesimpose fines while criminal offences

Budget Euro 177 000 spend on laboratory testing and Budget Euro 177 000 spend on laboratory testing and analysesanalyses

Health InspectorateHealth Inspectorate (Ministry of Health) – TOYS (Ministry of Health) – TOYS Labour Inspectorate Labour Inspectorate (Ministry of Labour) –(Ministry of Labour) – LIFTS, ATEXLIFTS, ATEX

Market surveillance – Market surveillance – Czech RepublicCzech Republic

Trade InspectionTrade Inspection ”principal authority” (subordinated to ”principal authority” (subordinated to Ministry of Industry and Trade)Ministry of Industry and Trade)

Headquarters and 7 regional branchesHeadquarters and 7 regional branches 420 employees (23 in GPSD), annual budget around Euro 8 420 employees (23 in GPSD), annual budget around Euro 8

millionmillion Random competence for product safety – control, Random competence for product safety – control,

proceedings and fines (total fines Euro 650 000, average proceedings and fines (total fines Euro 650 000, average around Euro 400)around Euro 400)

Telecommunication devices (Telecommunication devices (Czech Telecommunication Czech Telecommunication OfficeOffice – reporting to the Ministry of Economy until 1 – reporting to the Ministry of Economy until 1 November 1996, later under Ministry of Transport and November 1996, later under Ministry of Transport and Communications, since Communications, since 30 June 2000 independent within the structure of the 30 June 2000 independent within the structure of the Government)Government)

Consumer Advisory Council Consumer Advisory Council (under Ministry of Industry and (under Ministry of Industry and Trade) – communication between governmental and non-Trade) – communication between governmental and non-governmental consumer organisationsgovernmental consumer organisations

Market surveillance – Market surveillance – PolandPoland

Office of Competition and Consumer Protection (subordinated to the Office of Competition and Consumer Protection (subordinated to the Prime Minister) Prime Minister)

Headquarters and 9 regional branches (280 people, 14 in Market Headquarters and 9 regional branches (280 people, 14 in Market Surveillance Department)Surveillance Department)

Budget: Euro 10 mln Budget: Euro 10 mln Responsible for legislation and proceedings in the field of general Responsible for legislation and proceedings in the field of general

product safetyproduct safety The New Approach Directives: Office of Competition and Consumer The New Approach Directives: Office of Competition and Consumer

Protection (monitoring the system) plus 9 specialised authorities Protection (monitoring the system) plus 9 specialised authorities (subordinated to various ministries) (subordinated to various ministries)

Steering committee as a coordination bodySteering committee as a coordination body Outside the market surveillance but still survey the market are the Outside the market surveillance but still survey the market are the

following: following: Centralised: Financial Supervision Authority (Prime Minister); Energy Centralised: Financial Supervision Authority (Prime Minister); Energy

Regulatory Office (Minister of Economy); Bureau for Chemical Regulatory Office (Minister of Economy); Bureau for Chemical Substances and Preparations (Minister of Health); Substances and Preparations (Minister of Health);

Decentralised (Headquarters responsible to minister, 16 regional Decentralised (Headquarters responsible to minister, 16 regional branches to regional governors and 379 subordinate to county branches to regional governors and 379 subordinate to county authorities) Agricultural and Food Quality Inspection; The Main authorities) Agricultural and Food Quality Inspection; The Main Pharmaceutical Inspectorate; Chief Sanitary InspectoratePharmaceutical Inspectorate; Chief Sanitary Inspectorate

Market surveillance – Market surveillance – HungaryHungary

General Inspectorate for Consumer General Inspectorate for Consumer Protection Protection (GICP) (subordinated to Ministry of (GICP) (subordinated to Ministry of Economy and Transport)Economy and Transport)

Headquarters (160 people, 50 in market surveillance) upper Headquarters (160 people, 50 in market surveillance) upper instance to: instance to:

19 regional (230 people, 160 in market surveillance) offices 19 regional (230 people, 160 in market surveillance) offices (under Ministry of Local Government and Territorial (under Ministry of Local Government and Territorial Development)Development)

Budget: Euro 4,3 million for market surveillance activities of Budget: Euro 4,3 million for market surveillance activities of HQ and Euro 6 million for regional bureauxHQ and Euro 6 million for regional bureaux

Inspects the safety of the products, monitors the law, Inspects the safety of the products, monitors the law, operates the Central Market Surveillance Information operates the Central Market Surveillance Information System, does the inquiries based on consumers’ System, does the inquiries based on consumers’ complaints, sole responsible for GPSD and several New complaints, sole responsible for GPSD and several New Approach Directives: LVD, TOYS, MD, EMC, CPDApproach Directives: LVD, TOYS, MD, EMC, CPD

Market surveillance – Market surveillance – EstoniaEstonia

Consumer Protection BoardConsumer Protection Board (under Ministry of Economic Affairs (under Ministry of Economic Affairs and Communications) – responsible for GPSD, supervising the and Communications) – responsible for GPSD, supervising the consumer market and RAPEX pointconsumer market and RAPEX point

Headquarters (62 people) and 13 regional offices – 3 inspectors in Headquarters (62 people) and 13 regional offices – 3 inspectors in HQ and 15 in regional bureaux, who also respond to consumer HQ and 15 in regional bureaux, who also respond to consumer complaintscomplaints

Budget: Euro 1,1 millionBudget: Euro 1,1 million Technical Inspectorate Technical Inspectorate (Ministry of Economic Affairs and (Ministry of Economic Affairs and

Communications) – responsible for LVD, EMC, MD, GAD, SPV, Communications) – responsible for LVD, EMC, MD, GAD, SPV, constructions, mines, explosives and chemicalsconstructions, mines, explosives and chemicals

Communications Board Communications Board (Ministry of Economic Affairs and (Ministry of Economic Affairs and Communications) – supervises the RTT&E, radio and television Communications) – supervises the RTT&E, radio and television equipmentequipment

Labour Inspectorate Labour Inspectorate (Ministry of Social Affairs) – PPE(Ministry of Social Affairs) – PPE Health Protection Inspectorate Health Protection Inspectorate (Ministry of Social Affairs) – (Ministry of Social Affairs) –

toys and cosmeticstoys and cosmetics The co-ordination forum is The co-ordination forum is Market Supervision CouncilMarket Supervision Council, which , which

advices the Ministry of Economic Affairs and Communications – advices the Ministry of Economic Affairs and Communications – the chairperson is deputy Secretary of State in the Ministrythe chairperson is deputy Secretary of State in the Ministry

CONCLUSIONSCONCLUSIONS

Future directions for European Future directions for European Consumer Law:Consumer Law:

Greater coordination, internal Greater coordination, internal coherence or substantive laws, coherence or substantive laws, complete harmonisation;complete harmonisation;

Emphasis on enforcement – Emphasis on enforcement – coexistence of public and private coexistence of public and private enforcement measures;enforcement measures;

Greater procedural harmonisation.Greater procedural harmonisation.