VIEWS: 3 PAGES: 13 POSTED ON: 8/24/2010
Every citizen is a consumer and the European Union takes great care to protect their health, safety and economic well-being. It promotes their rights to information and education, takes steps to help them safeguard their interests, and encourages them to set up and run self-help consumer associations. Empowering Europe’s citizens Consumer policy is part of the Union’s strategic objective of improving the quality of life of all its citizens. In addition to direct action to protect their rights, the Union ensures that consumer interests are built into EU legislation in all relevant policy areas. As the single market and the single currency open trading borders, as use of the internet and electronic commerce grows and as the service sector expands, it is important that all 450 million citizens in the enlarged Union benefit from the same high level of consumer protection. Legislation is not the only means. Other methods include co-regulation between consumer and business organisations, and good practice guidelines. Strong consumer organisations, aware of an individual’s rights and able to take advantage of them in practice, also have a prominent role to play, especially in the new member states. Harmonised rules needed An EU-level consumer policy is a necessary adjunct to the internal market. If the single market functions well, it will stimulate consumer confidence in cross-border transactions and have a positive impact on competition and prices for the benefit of all EU citizens. But individuals must be confident they have sufficient accurate information before making purchases and enjoy clear legal rights when transactions go wrong. This is why harmonised rules are needed to guarantee citizens an adequate level of protection. A growing achievement The policy has ensured consumers a large degree of safety in many areas over the years. In addition to the General Product Safety Directive, adopted in 1992, individual safety measures are now in place for toys, personal protective equipment, electrical appliances, cosmetics, pharmaceuticals, machinery and recreational craft. A revised Directive came into force in January 2004, introducing new and stricter rules on the recall of defective products. The European Commission receives around 150 notifications of dangerous products each year. The new rules set safety requirements for consumer products like sports and playground equipment, childcare articles, lighters and most household products such as textiles and furniture. EU consumer policy has come a long way since the first programme for consumer information and protection was adopted in 1975. A large number of measures have been taken to safeguard consumers’ wider interests in areas such as: fair business practices; misleading and comparative advertising; price indicators; unfair contract terms; distance and doorstep selling; timeshares and package travel. 19 A comprehensive and integrated approach The scope of EU consumer protection policy is changing, reflecting a shift in people’s needs and expectations. New legislation will set high, harmonised EU safety, security and health standards designed to increase consumer confidence. The consumer policy strategy for 2002-2006 underlines this shift in emphasis and states that EU consumer policy should: guarantee essential health and safety standards, so that buyers are sure the products they purchase are safe and that they are protected against illegal and abusive practices by sellers; empower individuals to understand policies that affect them and have an input when the se policies are made; establish a coherent and common environment across the Union so that shoppers are confident about making cross-border purchases; ensure that consumer concerns are integrated into the whole range of relevant EU policy areas from environment and transport to financial services and agriculture. A high common level of consumer protection As part of its strategy, the European Commission will propose measures to guarantee the safety of consumer goods and services on items as varied as chemicals, cosmetics and toys. This has been accompanied by new legislation to protect people’s economic interests even more effectively when they are involved in transactions like distance selling or timeshare offers. The European Commission plans guidelines to protect consumers who buy online. With the growth of financial services and electronic commerce, the Commission plans to introduce guidelines for good on-line business practices and provide guarantees for all aspects of consumer credit and non-cash means of payment. Consumers' interests and benefits are already factored into legislation to inject competition into key public service sectors like transport, electricity and gas, telecommunications and postal services. The new directives and regulations ensure that the public continues to enjoy universal access to high quality services at affordable prices. The European Commission now involves consumer organisations more closely in the consultation process when new legislation is being drafted and to fund training courses for their staff. For example, a new European Consumer Consultative Group, bringing together representatives of national consumer organisations and the Commission, began work in December 2003. Effective enforcement of consumer protection rules EU rules must be properly implemented and individuals able to obtain redress. This requires better cooperation between member states. Court proceedings, especially in another jurisdiction, can be costly and time-consuming. To encourage out-of-court settlements, the Commission is developing alternative dispute mechanisms. In June 2003, the Commission issued a draft directive for adoption by member states which provides for an EU-wide ban on unfair commercial practices. It lists a series of unfair practices and, once adopted, will outlaw them through a single, common and general prohibition. Uncertainty about their rights and fear of exploitation by unscrupulous traders have made consumers wary of cross-border shopping. The new directive aims to give consumers the same protection from sharp business practices and rogue traders whether they buy from the shop around the corner or from a website in another member state. The directive was the object of a preliminary (political) agreement by member states in May 2004. It still requires formal adoption by the European Parliament and the Council of the Union. 20 Consumers already have a limited scope for redress. The EEJ-NET, with contact points in each EU country (www.eejnet.org), acts as a clearinghouse to provide individuals with information and support when making a complaint. A parallel network, FINN-NET, (available on the Commission website at europa.eu.int/comm/internal_market) fulfils the same role for cross-border complaints about financial services. 21 Romania 1) REFERENCES Commi ssion Opinion [COM(97) 2003 final - Not publi shed in the Official Journal] Commi ssion Report [COM(98) 702 final - Not publi shed in the Official Journal] Commi ssion Report [COM(1999) 510 final - Not publi shed in the Official Journal] Commi ssion Report [COM(2000) 710 final - Not publi shed in the Official Journal] Commi ssion Report [S EC(2001) 1753 - Not publi shed in the Official Journal] Commi ssion Report [COM(2002) 700 final - Not publi shed in the Official Journal] Commi ssion Report [COM(2003) 676 final - SEC(2003) 1211 - Not publi shed in the Official Journal] 2) SUMMARY In its July 1997 Opinion the European Commission stated that Romania had made considerable progress in aligning its consumer protection legislation with the Community acquis. Although certain amendments and new laws were required, the Commission noted that Romania came close to satisfying European Union consumer protection standards, while recognising that problems might arise at the time of effective enforcement of the Community acquis. The November 1998 Report ascertained that there had been little progress in this area, notably as regards the transposition of the Community acquis. It also pointed out that Romania would have to reinforce the institutional structures res ponsible for enforcing the law. In its October 1999 Report the Commission noted that only modest progress had been made, largely due to the transposal of two directives, and stressed that major efforts were still required. The October 2002 Report not es that in the last three years Romania has succeeded in making significant progress in transposing the acquis, and work on its translation is continuing steadily. Further efforts are needed in order to ensure effective implement ation and proper collaborati on bet ween the various bodies concerned with consumer protection. COMMUNITY ACQUIS The Community acquis covers the protection of consumers' economic interests (notably in the fields of misleading advertising, indication of prices, consumer credit, unfair c ontract terms, distance selling, package travel, and timeshares), general product safety, cosmetics safety, the labelling of textile products and toy safety. The European Association Agreement provides for aligning the legislation with Community law and fo r cooperation measures to bring Romanian consumer protection law fully into line wit h the Community rules. The measures set out in the first phase of the White Paper on the Central and Eastern European Countries and the Internal Market (1995) focus on the improvement of product safety, notably in respect of cosmetics, textiles and toys, and on the protection of consumers' economic interests, mainly in the field of misleading advertising, consumer credit, unfair contract terms, and indic ation of prices. The second-phase meas ures concern package travel and timeshares. New, recently adopted Community legislation (distance selling, comparative advertising and indication of prices ) must also be transposed. 22 EVALUATION Non-sa fety-related measures The Report notes that the transpos al of the Community acquis in relation to non-safety-related measures has been very slow and that a considerable number of directives still need to be transposed, e.g. those on consumer credit, timeshare property and injunctions. Consumer protection Much work remains to be done with regard to consumer associations. The activity of such organisations is not well understood by consumers, who prefer to claim their rights individually. The National Authority for Consumer Protection has already launched awareness campaigns in this field, aimed at the general public. Cons umer representation also needs to be improved. For example, no consumer organisations were represented on the Inter-Ministerial Committee for Market, Products and Services Surveillance and Cons umer Protection. The 1992 Consumer Protection Act laid down the main rules and created the Consumer Protection Office (CPO). This is a state agency with 14 regional branches which is responsible for coordinating and implementing policies in this area. It also organises the cons umers' consultative councils made up of represent atives of the state and consumer and business associations, at national, provincial and local level. In 2002, two new independent consultative bodies were set up: the U nfair Terms Commission and the Product Safety Commission. However, these two bodies are not yet properly operational. The Unfair Terms Commission had not yet met by the time the Report was drawn up, and the Product Safety Commission had met only twice. Safety-related measures Legislation on safety-related measures is in line with the acquis. However, the revised directive on general product safety and the directive on liability for defective products still need to be transposed. This is a task for the National Authority for Consumer Protection (wit h its 42 territorial offices), which is responsible for coordinating consumer protection policies and market surveillance. Recently, it has successfully carried out joint controls with other market surveillance bodies, such as the Inter-Ministerial Committee for Product Surveillance. However, in order to improve coordination, this committee should also include representation from the ot her bodies concerned with market surveillance, especially the Ministry of Labour and the Ministry of Communications. Romania should also ensure that these activities are geared towards monitoring the safety of non -food products and that further resources are made available for testing laboratory, other technical installations and the training of officials. 23 Consumers: introduction There are 370 million consumers in the European Union today. The Member States have adopted policies designed to protect the specific interests of consumers, who play a key economic and political role in society. Investing them with a certain number of fundamental rights, the Member States have put in place policies designed to reduce inequalities, abolish unfair practices, promote safety and health and improve living standards in general. The methods used to guarantee these rights reflect the differences in legal systems, socio-cultural traditions, and institutional and political settings. Certain Member States have opted for a regulation - oriented approac h and have created a full -fledged administrative structure to address consumer problems. Others have chosen a more pragmatic approach, and allow the markets and individual sectors a certain degree of self-regulation. Finally, while cert ain governments attach priority to food law, others have put the emphasis on trade designations or the supply of goods and services. This diversity of rules and structures was the rationale underlying the development of a Community - level policy designed to ens ure that consumers are confident enough to play an active role in the single market, while enjoying a high level of protection. The birth of consumer policy Cons umer policy first emerged in the mid -1970s. The Treaty of Rome did not provide for such a policy and it was not until the Paris Summit in 1972 that the heads of state and government first called for political action in this area. Shortly afterwards the Commission present ed the first action programme on consumer policy [Official Journal C 92, 25.04.1975]. This reference text cites five categories of fundamental rights which are the basis for Community legislation in this area, viz.: the right to protection of health and safety; the right to protection of economic interests; the right to damages; the right to information and education; the right to represent ation. This preliminary programme stresses the trans versal aspect of consumer policy, the objectives mentioned being integrated into specific Community policies, such as economic policy, the Common Agricultural Policy, environment, transport and energy policies, all of which affect consumers one way or the other. Other action programmes followed and enshrined a certain number of fundament al rights and principles. Initially the Community legislated in the field of cosmetics safety , food labelling , misleading advertising and doorstep selling , but it was not until the Single Act and the attendant perspective of the large market that consumer policy really took off. The Single Act, which entered into force on 1 July 1987, introduc ed the notion of the consumer into the Treaty: Article 100a entitles the Commission to propose measures designed to protect consumers, taking as a base a "high level of protection". This notion has not been precisely defined. However, this Article provides the foundation for a legal recognition of consumer policy. Moreover the Single Act repealed the unanimity rule for the adoption of directives in numerous areas directly or indirectly having to do with consumer protection. Henc e, consumer policy became part and parcel of a more general policy of completing the Single Market - a perspective which has given it a new impetus. The abolition of frontiers and the completion of the Single Market on 1 January 1993 highlighted the existence of a market of more than 340 million consumers and the need for flanking rules. Moreover, consumer confidence was shown to be indispensable for the market to work properly. 24 The new action programmes prioritised: consumer repres entation (the Cons umers ' Consultative Committee was adapted so as to make it more representative); consumer information; product safety; transactions. During this period measures were taken in the following areas: toy safety and general product safety , cross-border payments, unfair cont ract terms , distance selling, and timeshares . Considerable progress was made during these years - with the result that we now have a genuine corpus of Community consumer protection law. These positive trends were confirmed by the Maastricht Treaty, which enshrined consumer protection as a fully fledged Community policy. While the Treaty's general principles state that the Community must contribute to the "strengthening of consumer protection", Article 129a is the indispensable legal framework for consumer policy. Its adoption led to a new momentum as reflected in several Green Papers ( financial services , consumer access to justice , food law , sale of consumer goods and associated guarantees ) and legislative initiatives concerning injunctions , contracts negotiated at a distance , comparative advertising and cross-border transfers . Priorities 1996-1998 With a view to meeting the new challenges arising from globalisation, the r estructuring of public services, the emerging information society and developments in biot echnology, the Commission's priorities for 1996-98 focused on three elements: financial services, essential public utility services and food products (measures have already been taken in respect of consumer credit , means of payment, foodstuffs legislation and consumer health ); consumer education, aimed mainly at encouraging sustainable consumption behaviour and facilitating access to the information society; assistance for the countries of Eastern Europe and developing count ries in order to help them develop their own consumer-oriented policy. BSE Cri si s However, owing to the BSE crisis, particular emphasis has been placed on consumer health and food safety . The Commission has reorganised the departments concerned with consumer health and food safety, with separation of responsibilities in relation to the drafting of legislative texts, scientific consultation and inspection, and the transparency and dissemination of information. The resultant radical restructuring of Directorate-General XXIV entails responsibility not only for consumer policy but also for health protection: eight new committees, replacing the scientific committees concerned with consumer health protection, are attached to the Directorate -General; the multidisciplinary scientific committee was replaced by a scientific steering committee; the Food and Veterinary Office, formerly the Community Office for V eterinary and Phytosanitary Inspection and Control, was incorporated into DG XXIV; a unit responsible for the assessment of public health risks was created. These developments, designed to boost consumer confidence, were endorsed by the Luxembourg European Council (December 1997), which stressed that the production and supply of safe food mus t be one of the European Union's policy priorities. 25 The Treaty of Amsterdam Without altering this approach, the Treaty of Amsterdam gives fresh impetus to consumer policy. Under the new Article 129a (Article 153 after renumbering), the general aim will be to prot ect the health, safety and economic interests of consumers, and to promote their right both to information and education and to organise themselves in order to safeguard their interests. The same A rticle goes on to state that consumer protection requires are to be taken into account in defining and implementing other Community policies and activities. Finally, other provisions of the Treaty, especially in the public healt h sphere, are designed to give consumers greater protection. Priorities 1999-2001 This is the background against which the 1999 -2001 action plan for consumer policy has been adopted, with three major fields of activity: consumer repres entation and educ ation, entailing more systematic consultation, more effective dialogue between consumer associations and bet ween consumers and business, appropriate information campaigns, expansion of the "Euroguichets" information and advice centres, and greater cooperation with the Member States as regards consumer educ ation; consumer health and safety, based on the best possible scientific advice and on consistent analysis of risks, with legislation being adapted in such a way as to guarantee safer products and services and more effective response to emergencies; the economic interests of consumers, with steps being taken to ensure that the existing legislation is properly applied and is in tune with developments in products and services, with particular reference to financial services, and with consumers ' economic interests being taken into account in other Community policies such as telecommunications, transport and the reform of the Common Agricultural Policy. Priorities 2002-2006 Faced wit h enlargement, and in order to fully benefit from the internal market, consumers need simpler and more uniform rules, a similar degree of application throughout the Union, more accessible information and education measures and effective appeal mechanisms. In consideration of these needs, the consumer policy strategy for 2002 -2006 sets itself three objectives: a high common level of consumer prot ection; the effective enforcement of consumer protection rules; and the involvement of cons umer organisations in EU policies. 26 Unfair terms 1) OBJECTIVE To eliminate unfair terms from cont racts drawn up between a professional and a consumer. 2) COMMUNITY MEASURE Council Directi ve 93/13/ EEC of 5 April 1993 on unfair terms in consumer contracts. 3) CONTENTS This Directive does not apply to contractual terms reflecting: mandatory provisions or regulations; provisions arising from international agreements to which the Member States or the Community are signatories. A non-negotiated term is unfair when it establishes a significant imbalance, to the cons umer's detriment, between the rights and obligations of the contracting parties. A list of terms which may be deemed unfair is annexed to the Directive. Assessing the unfair nature of a contractual term takes into account: the nature of the goods or services covered by the contract; the circumstances surrounding the drawing up of the contrac t; the other terms in the contract or in another contract to which it relates. Neither the definition of the main aim of the contract nor the relationship bet ween the price and the service or goods to be provided may be taken into account in assessing the unfair nature of clearly worded contractual terms. Where there is doubt as to the meaning of a term, the interpretation most favourable to the consumer will prevail. Cons umers are not bound by unfair terms in a contract signed with a professional. The Member States are to implement the appropriate measures to end the use of unfair terms. The Commission is to report to the European Parliament and the Council by 31 Dec ember 1999 on the application of this Directive. 4) DEADLINE FOR IMPLEMENTATION OF THE LEGISLATION IN THE MEMBER STATES 31.12. 1994. 5) DATE OF ENTRY INTO FORCE (if different from the above) 11.05. 1993. 27 6) REFERENCES Official Journal L 95, 21.04.1993. 7) FOLLOW-UP WORK Further information is available on the site of the Directorate-General for Consumer Policy and Health Protection. 8) COMMISSION IMPLEMENTING MEASURES Report - not yet published in the Official Journal Report from the Commission on the implementation of Council Directive 93/13/EE C of 5 April 1993 on unfair terms in consumer contracts [COM (2000) 248 final]. The purpose of this report is not only to appraise Directive 93/13/EEC, five years after the deadline for its transposition, but also to raise a number of questions with a view t o improving the existing situation. According to the Commission, its work since 1993 has had a signific ant effect: infringement procedures, market studies, subsidies granted with a view to eliminating unfair terms in certain economic sectors, the dialogue bet ween consumers and professionals, information campaigns, the conference organised in Brussels in 1999, and the Clab database. Drawing on the experience gained in implementing the Directive in the Member States, the report suggests a number of improvements. The suggestions mainly concern the scope of the Directive and its limitations, the notion of unfair terms, the list in the annex to the Directive, the failure to supervise pre-contractual terms and conditions, the principle of transparency and the right to information, penalties, existing national arrangements for eliminating unfair terms, the problems pos ed by certain economic sectors, and the future of the Clab database. Sale of consumer goods and associated guarantees 1) OBJECTIVE Ensure cons umer protection and strengthen consumer confidence in cross -border shopping by laying down a common set of minimum rules valid no matter where the goods are purchased. 2) COMMUNITY MEASURES Directive 99/44/ EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees. 3) CONTENTS The Directive is concerned with the legal guarantee and commercial guarant ees. The concept of legal guarant ee includes all legal protection of the purchaser in respect of defects in the goods acquired, res ulting directly from the law, as a collateral effect of the contract of sale. The Directive hence concerns the principle of the conformity of the product with the contract. 28 The concept of commercial guarant ee, on the other hand, expresses the will of one person, the guarantor, who assumes personal liability for certain defects. The Directive does not use the terminology of legal and commercial guarantee. The term "guarantee" thus covers only commercial guarantees which are defined as follows: "any additional undertaking given by a seller or producer, over and above the legal rules governing the sale of consumer goods, to reimburs e the price paid, to exchange, repair or handle a product in any way, in the case of non-conformity of the product with the contract". Cons umer goods are defined as any tangible movable item, with the exception of: goods sold by way of execution or otherwise by authority of law, water and gas where they are not put up for sale in a limited volume or set quantity, electricity. Member States may exclude from this definition second-hand goods sold at public auction where consumers have the opportunity of attending the sale in person. However, the Directive applies to contracts for the supply of consumer goods to be manufactured or produced. Cons umer goods must be in conformity with the contract of sale. Goods are deemed to be in conformity with the contract if, at the moment of delivery to the consumer: they comply with the description given by the seller and possess the qualities of the product which the seller has held out to the consumer as a sample or model; they are fit for the purposes for which goods of the same type are normally used; they are fit for any particular purpose for which the consumer requires them and which was made known to the seller at the time of conclusion of the contract, and accepted by the seller; their quality and performance are satisfactory, given the nature of the goods and taking into account the public statements made about them by the seller, the produc er or his representative. The seller is liable to the consumer for any lack of conformity which exists when the goods are delivered to the consumer and which becomes apparent within a period o f two years unless, at the moment of conclusion of the contract of sale, the cons umer knew or could not reasonably be unaware of the lack of conformity. If the goods are not in conformity with the public statements made by the produc er or his representative, the seller will not be liable if: the seller shows that he did not know and could not reasonably know the statement in question; the seller shows that at the time of sale he corrected the statement; the seller shows that the decision to buy the goods could not have been influenced by the statement. Any lack of conformity resulting from incorrect installation of the consumer goods is deemed to be equivalent to lack of conformity of the goods if installation forms part of the cont ract of sale of the goo ds and the goods were installed by the seller or under his responsibility. This applies equally if the product, intended to be installed by the cons umer, is installed by the consumer and the incorrect installation is due to a shortcoming in the installatio n instructions. Any lack of conformity becoming apparent within six months of delivery will be presumed to have existed at the time of delivery, unless: proof to the contrary is furnished; 29 this presumption is incompatible with the nature of the goods or t he nature of the lack of conformity. When a lack of conformity is notified to the seller, the consumer will be entitled to ask: for the goods to be repaired or replaced free of charge within a reasonable period and without major inc onvenience to the consumer; if repair or replac ement is impossible or disproportionate, or if the seller has not remedied the shortcoming within a reasonable period or without major inconvenience to the consumer, for an appropriate reduction to be made to the price or to have the contract rescinded. The consumer is not entitled to have the contract rescinded if the lack of conformity is minor. Member States may provide that, in order to benefit from his rights, the consumer must inform the seller of the lack of conformity within a period of two months from the date on which he detected such lack of conformity. When the final seller is liable to the consumer becaus e of a lack of conformity resulting from an act of commission or omission by the producer, a previous seller in the s ame chain of contracts or any other intermediary, the final seller will be entitled to purs ue remedies against the pers on responsible, under the terms of national law. Any (commercial) guarantee offered by a seller or producer will be legally binding under the conditions laid down in the guarantee document and the associated advertising, and must place the beneficiary in a more advantageous position than that resulting from the rules governing the sale of consumer goods set out in the applicable national provisions. The guarantee must feat ure in a written document, which must be freely available for consultation before purchase, showing in particular the duration and territorial scope of the guarantee, and the name and address of the guarantor. At the consumer's request, the guarantee shall be made available in writing or on another durable medium available and accessible to him. Within its own territory, the Member State in which the consumer goods are market ed may provide that the guarantee be drafted in one or more official languages of the Community. Non-conformity of the (commercial) guarantee wit h the provisions of the Directive does not affect its validity and the consumer may still require that the guarantee be honoured. Any contractual terms or agreements concluded with the seller which directly or indirectly waive or restrict the rights resulting from the proposed Directive are not binding on the consumer. Member States may adopt more stringent provisions, compatible wit h the Treaty, to ensure a highe r level of cons umer protection. On 2006 at the latest, the Commission will present to the European Parliament and the Council a report on the application of the directive. 4) DEADLINE FOR IMPLEMENTATION OF THE LEGISLATION IN THE MEMBER STATES 01.01. 2002 5) DATE OF ENTRY INTO FORCE (if different from the above) 07.07. 1999 30 6) REFERENCES Official Journal L 171, 07.07.1999 7) FOLLOW-UP WORK In the context of the report on the applic ation of the Directive, which the Commission must submit no later than 7 July 2006, the Commission must in particular examine the case for int roducing the producer's direct liability. 8) COMMISSION IMPLEMENTATION MEASURES 31
"Every citizen is a consumer and "