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EU Law and Consumer Protection- new trends. Lecturer Razvan Viorescu Suceava University. 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

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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 consumer’s 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 consumer’s 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, R&TTE, 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 RTT&E, 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.


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