Basic consumer rights and fundamental rights by S119sl3

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									Basic consumer rights
and fundamental rights

           Jules Stuyck
     Professor K.U.Leuven,
  partner, Liedekerke. Wolters.
 Waelbroeck. Kirkpatrick, Brussels
                     Outline
   Introduction
   Basic Consumer rights in EC Consumer Policy
   The Consumer’s right of self-determination
   The place of fundamental rights in the EU
   The importance of fundamental rights for
    consumers
   The case law of the ECJ on fundamental rights
    and its impact on basic consumer rights
   Horizontal effect of fundamental (consumer)
    rights
   Basic (fundamental) consumer rights and the
    new consumer
                  Introduction

   Development of consumer law in EU closely
    linked to development free movement law
   EC Competition law also serves the interests of
    consumers
   Free competition and free movement are basic –
    quasi constitutional – principles of EC law
   Fundamental rights play an increasing role in free
    movement case law
   Fundamental rights: individual v. State; basic
    consumer rights: individual v individual
   Consumer’s basic right of self determination v.
    fundamental rights? (e.g. human dignity)
   The new consumer (fair trade)
    Basic Consumer rights in EC
      Consumer Policy part 1
   First EC Consumer Programme:
    The right   to protection of health and
     safety
    The right   of protection of economic
     rights
    The right   of redress
    The right   to information and education
    The right   of representation
    Basic Consumer rights in EC
      Consumer Policy part 2
   The second Action Programme 1981
    Five basic consumer rights reaffirmed
    Council Resolution 1986: necessity of
     high level of consumer protection
    Basic Consumer rights in EC
      Consumer Policy part 3
   The Single European Act 1987
    Art. 100a(3) (now 95(3))EC:
    “3. The Commission, in its proposals envisaged
      in paragraph 1 concerning health, safety,
      environmental protection and consumer
      protection, will take as a base a high level of
      protection, taking account in particular of any
      new development based on scientific facts.
      Within their respective powers, the European
      Parliament and the Council will also seek to
      achieve this objective.”
    Basic Consumer rights in EC
      Consumer Policy part 4
   The Treaty of Maastricht (1992-
    1994):
    New Chapter XI on Consumer Protection
    New Article 3(s) (now (t)): “a
     contribution to the strengthening of
     consumer protection”
    Art. 129a (now 153): “the Community
     shall contribute to the attainment of a
     high level of consumer protection”
    Basic Consumer rights in EC
      Consumer Policy part 5
   The Treaty of Amsterdam; new
    Article 153(1) EC:
     “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. “
    The consumer’s right of self-
           determination
   Art. 2(1) GG (German Constitution):
    “freie Entfaltung der Persönlichkeit”
    – Private autonomy
   Jozef Drexl 1998: the right of self-
    determination is the most important
    constitutional right of consumers
   Consequence: consumer protective
    measures should respect this
    principle (proportionality test)
    The place of fundamental rights
               in the EU
   Since Case 29/69 Stauder: fundamental rights form part of
    the general principles of Community law; importance of
    ECHR – binding on institutions and M.S. acting within field
    of Community law
   Art. 6(2) EU Treaty
      “The Union shall respect fundamental rights, as guaranteed by
      the European Convention for the Protection of Human Rights
      and Fundamental Freedoms signed in Rome on 4 November
      1950 and as they result from the constitutional traditions
      common to the Member States, as general principles of
      Community law. “

   Charter of Fundamental Rights 2000
   EU Constitution (incorporation of Charter)
    The importance of fundamental
         rights for consumers
   Participation rights: freedom of assembly and of
    association/right of access to documents
   Limitations on fundamental rights of
    undertakings, e.g.:
     Party protection at same level as freedom of contract (as
      a fundamental right)? (B. Lurger , ERCL 2005, p. 448)
     freedom of expression and commercial speech;
     respect of private and family life (Article II-67
      Constitution)
     protection of personal date (Article II-68(1)
      Constitution)
   Equality: non-discrimination (art. II-80 and 81
    Constitution)
    The ECJ’ s fundamental rights
    case law and consumer rights
   Case C-71/02 Karner v Troostwijk:
    margin of appreciation of M.S. in
    restricting freedom of expression in
    commercial matters, especially with
    regard to advertising
   Case Omega Spielhallen: reliance on
    fundamental principle of human dignity
    (“public policy” in Art. 46 EC) justifies
    prohibition of a killer game: human dignity
    v. consumer’s right of self-determination?
    Horizontal effect of fundamental
          (consumer) rights
   Fundamental rights: individual v. State; basic consumer
    rights: individual v individual
   No horizontal direct effect of (consumer) directives: Case
    C-91/92 Faccini Dori v Recreb
   But consistent interpetration: case C-240/98 Oceano Grupo
   Significance of Case C-144/04 Mangold?
    “[…]it is the responsibility of the national court, hearing a
    dispute involving the principle of non-discrimination in
    respect of age, to provide, in a case within its jurisdiction,
    the legal protection which individuals derive from the rules
    of Community law and to ensure that those rules are fully
    effective, setting aside any provision of national law which
    may conflict with that law.”
         The new consumer
   Fair Trade: “market driven ethical
    consumption” (see Alex Nicholson &
    Charlotte Opal)
   The consumer is not necessarily a
    “homo economicus”
   Shouldn’t we rethink the consumer’s
    basic rights? Or do effective
    competition and the right to be
    correctly informed suffice?

								
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