Monday, 22 December 2008

European Union Law: Consumer protection

There are almost 500 million EU consumers, so the European Union should take an interest. Perhaps we should, too.



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Article 153 TEC

Article 153 spells out the aims of the European Community’s action in the area of consumer protection.

Consumers’ health, safety and economic interests are mentioned first.

Consumers’ right to information, education and organisation are mentioned second.

Consumer protection is seen as a horizontal activity.

Article 153(3)(a) refers to measures taken under the provisions on approximation (harmonisation) of laws, which have as their object the establishment and functioning of the internal market (Article 95 TEC).

The cooperation procedure applies to supporting, supplementing and monitoring measures mentioned in Article 153(3)(b).

Higher national standards (more stringent measures) are allowed, but not in the form of a blank cheque. Such protective measures have to be compatible with the treaty, and the Commission has to be notified by the member state.



The current Article 153 (ex Article 129a) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/115–116:

TITLE XIV
CONSUMER PROTECTION

Article 153 TEC

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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Original Lisbon Treaty (ToL)

Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.

Article 2, point 127 of the original Treaty of Lisbon (ToL) shows that Article 152 TEC underwent several specific amendments (OJ 17.12.2007 C 306/84):

CONSUMER PROTECTION

128) Article 153(2) shall become Article 6a and paragraphs 3, 4 and 5 shall be renumbered 2, 3 and 4 respectively.


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Renumbering ToL

The Table of equivalences of the original Treaty of Lisbon tells us that Title XIV first became Title XIV in the TFEU (ToL), but renumbered Title XV Consumer protection in the consolidated version.

Paragraphs 1, 3, 4 and 5 of Article 153 TEC initially became Article 153 TFEU (ToL) before the renumbering of the treaty made it into Article 169. Paragraph 2 of Article 153 TEC, first became Article 6a TFEU (ToL), before being renumbered Article 12 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).


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Lisbon Treaty consolidated

After the explicit amendment, horizontal amendments and renumbering, we have two consolidated TFEU Articles to present.

They appear as follows in the consolidated Treaty on the Functioning of the European Union (TFEU), published in the Official Journal of the European Union, OJ 9.5.2008 C 115/54 and 124:

Article 12 TFEU
(ex Article 153(2) TEC)

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


TITLE XV
CONSUMER PROTECTION

Article 169 TFEU
(ex Article 153 TEC)

1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union 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. The Union shall contribute to the attainment of the objectives referred to in paragraph 1 through:

(a) measures adopted pursuant to Article 114 in the context of the completion of the internal market;

(b) measures which support, supplement and monitor the policy pursued by the Member States.

3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 2(b).

4. Measures adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. The Commission shall be notified of them.

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EU powers

The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.

The categories of EU competence (taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):

Article 2 TFEU

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.



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Article 4 TFEU

As an area of shared competence between the EU and the member states, Article 4(2)(a) mentions the internal market and in Article 4(2)(f) consumer protection is specifically mentioned.

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Summary of legislation: Consumer protection

On the Commission’s Scadplus web pages with summaries of legislation, the page Consumers: General framework and priorities offers access to consumer issues generally, including the Programme of Community action in the field of consumer policy (2007-2013):


http://europa.eu/scadplus/leg/en/s16100.htm


Protection of consumers’ economic and legal interests offers a number of links relevant to these aspects of consumer protection:

http://europa.eu/scadplus/leg/en/s16300.htm


Consumer safety issues can be accessed through:

http://europa.eu/scadplus/leg/en/s16200.htm

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Commission activities

Because consumer health and safety are closely linked to other aspects of consumer protection, it may be a good idea to gather news and information on Commission activities from the Directorate General for Health and Consumers as a whole before surfing in either direction:

http://ec.europa.eu/dgs/health_consumer/index_en.htm

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Consumer safety

Here are a few additional links on consumer safety.

Scientific Committees for consumer safety, public health and the environment (last update 2 May 2007):

http://europa.eu/scadplus/leg/en/lvb/l28153.htm


The precautionary principle (last update 2 November 2005):

http://europa.eu/scadplus/leg/en/lvb/l32042.htm


Programme of Community action in the field of health and consumer protection (2008–2013) (last update 8 April 2008):

http://europa.eu/scadplus/leg/en/cha/c11503c.htm

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Consumer affairs

Here is the web page to start looking at Consumer Affairs more specifically:

http://ec.europa.eu/consumers/index_en.htm


Ralf Grahn