I am based in the UK teaching Consumer Law at Brunel University (West London) and my mission in this blog is to bring you some information from Europe and keep monitoring interesting developments on this other side of the pond. For my first post, I would like to present some useful sources of European consumer law and briefly go over the basis of European consumer law policy.
The EU website is a first point of call and highly recommended if you are not familiar at all with European Law. For those who already have some knowledge I suggest going directly to the consumer policy pages, where you will find a useful guide to the legal texts applying as well as some background information regarding consumer protection in the EU. In addition, this is a good source for recent developments and news.
Consumer protection policy at EU level derives from the Treaty establishing the European Community and its Art 153, which states:
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:
measures adopted pursuant to Article 95 in the context of the completion of the internal market;
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.
In his book "EU Consumer Law and Policy" (Edward Elgar 2005), Stephen Weatherill, Jacques Delors Professor of EC Law at Somerville College, Oxford, proposes a very good overview of the evolution of consumer policy in the European Union, in which he rightly notes that consumer protection did not feature in the Treaty from the outset.
Indeed, the first Treaty (Treaty of Rome 1957) did not have any specific provisions devoted to consumer policy. However, references to consumers could be found dotted around (especially in provisions relating to competition law, illustrating at this early stage already the important interaction between the two actors on the market - competitors and consumers). Despite the absence of specific focus, consumer policy developed nevertheless via the development of soft law initiatives and via the harmonisation of consumer law in the different national orders. But at this time “no consumer protection policy exists independently of other Community policies” notes Weatherill. It is only in 1993 and the Maastricht Treaty, which renegotiated some elements of the Treaty of Rome establishing the European Community and created the European Union (of which the Community would form part), that consumer protection is fully integrated and recognised in the EU agenda (art 153 cited above). As Weatherill puts it, it is the Maastricht Treaty, which "introduced consumer protection as a formal EC legislative competence for the first time".
This competence allows for:
- The development of a harmonised set of rules on consumer protection, rules which are only a minimum protection (each Member States being free of adopting a higher level of protection). Although note that this trend has been reversed in recent years and the adoption of Directives forbidding any departure from the level of protection offered to ensure that the market is not distorted (any additional protection of consumer does indeed mean that some businesses may be put at a disadvantage and damage the level playing field created by the Treaty).
- Consumer policy to influence other Community initiative (Art 153. 2). Consumer protection has come a long way being seen not as an isolated post, but as forming part of the development of the free market.
The main substantive law adopted at European level in the field of consumer protection can be found on the Europa website. (Note that in the hierarchy of European norms, the Treaty is the main instrument. Regulations are then enforceable without any implementation in national law. Directives are binding on Member States but will require implementation in national law. Any other instrument is of lesser importance, yet whilst non binding, Resolutions tend to be key in shaping consumer policy).