Wednesday, 27 February 2008

EU TFEU: Consumer protection

Can things change without changing the wording? The structure or interrelation between different parts of the EU treaties may seem an arcane hobby, apt to send anyone but a constitutional lawyer to sleep.

But let us take an example of how, arguably, the interests of citizens, the speeches of politicians and the actions of NGOs may be influenced by hardly noticeable change.

No change of wording, but a different perception leading to qualitative change.

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In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserted an Article 6a into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). We are given directions as to the contents in OJ 17.12.2007 C 306/48:

20) An Article 6a shall be inserted, with the wording of Article 153(2).

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Study of the current treaties is never amiss, so we look up the TEC (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 C E/116:

Article 153(2) TEC

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

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Our diligent work, which I hope has been repeated for every Article by each participant in the IGC 2007 and every ‘no’ voter in France and the Netherlands, has brought its own reward: We are delighted to realise that the Lisbon Treaty places a provision on consumer protection among the provisions having general application (Title II) in the TFEU:

Article 6a TFEU (ToL), to be renumbered Article 12 TFEU

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

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The European Convention had the commendable objective to offer us a unified and readable treaty. In Part III The policies and functioning of the Union, Title I Clauses of general application, there was Article III-5 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29), with the familiar text:

Article III-5 Draft Constitution

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

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The IGC 2004 preserved this laudatory aim of the Convention in the Treaty establishing a Constitution for Europe, where Part III The policies and functioning of the Union, Title I Provisions of general application, contained Article III-120 (OJ 16.12.2004 C 310/55) on consumer protection:

Article III-120 Constitution

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

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We find exactly the same wording in every version, from the current TEC to the Lisbon Treaty, but from a systematic point of view the ordering of horizontal or transversal provisions, having general application, improves clarity and readability of all the treaty versions from the draft Constitution onwards, and helps to enhance the visibility of every general provision.

It is easier to use these provisions having general application as a check list for every proposed legislative act, regardless of area, and raise them in legal and political debate, than if the text of each of them was tucked away in its own niche, like the provision on consumer protection we followed.

I submit that there is a qualitative change, although the wording is unchanged.

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What about substance?

Those who want an overview of European Community policies and activies in the field of consumer affairs can start from the Europa web pages, Activities of the European Union, Summaries of legislation, Consumers:

http://europa.eu/scadplus/leg/en/s16000.htm

‘Consumers: Introduction’ offers four pages of background on how consumer protection has evolved in the EC, although the pages have last been updated 16 August 2006 and still speak of an EU-25 as a novelty:

http://europa.eu/scadplus/leg/en/lvb/l32000.htm

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Consumer protection is of interest to 490 million citizens and consumers as well as to most businesses operating in or trading with the European Union.



Ralf Grahn