Basic consumer rights Basic consumer rights and fundamental rightsand fundamental rights

Jules StuyckJules StuyckProfessor K.U.Leuven, Professor K.U.Leuven,

partner, Liedekerke. Wolters. partner, Liedekerke. Wolters. Waelbroeck. Kirkpatrick, BrusselsWaelbroeck. Kirkpatrick, Brussels

OutlineOutline IntroductionIntroduction Basic Consumer rights in EC Consumer PolicyBasic Consumer rights in EC Consumer Policy The Consumer’s right of self-determinationThe Consumer’s right of self-determination The place of fundamental rights in the EUThe place of fundamental rights in the EU The importance of fundamental rights for The importance of fundamental rights for

consumersconsumers The case law of the ECJ on fundamental rights The case law of the ECJ on fundamental rights

and its impact on basic consumer rightsand its impact on basic consumer rights Horizontal effect of fundamental (consumer) Horizontal effect of fundamental (consumer)

rightsrights Basic (fundamental) consumer rights and the new Basic (fundamental) consumer rights and the new

consumer consumer

IntroductionIntroduction

Development of consumer law in EU closely Development of consumer law in EU closely linked to development free movement lawlinked to development free movement law

EC Competition law also serves the interests of EC Competition law also serves the interests of consumersconsumers

Free competition and free movement are basic –Free competition and free movement are basic –quasi constitutional – principles of EC lawquasi constitutional – principles of EC law

Fundamental rights play an increasing role in free Fundamental rights play an increasing role in free movement case lawmovement case law

Fundamental rights: individual v. State; basic Fundamental rights: individual v. State; basic consumer rights: individual v individualconsumer rights: individual v individual

Consumer’s basic right of self determination v. Consumer’s basic right of self determination v. fundamental rights? (e.g. human dignity)fundamental rights? (e.g. human dignity)

The new consumer (fair trade) The new consumer (fair trade)

Basic Consumer rights in EC Basic Consumer rights in EC Consumer Policy part 1Consumer Policy part 1

First EC Consumer Programme:First EC Consumer Programme:The right to protection of health and The right to protection of health and

safetysafetyThe right of protection of economic The right of protection of economic

rightsrightsThe right of redressThe right of redressThe right to information and educationThe right to information and educationThe right of representationThe right of representation

Basic Consumer rights in EC Basic Consumer rights in EC Consumer Policy part 2Consumer Policy part 2

The second Action Programme 1981The second Action Programme 1981Five basic consumer rights reaffirmedFive basic consumer rights reaffirmedCouncil Resolution 1986: necessity of Council Resolution 1986: necessity of

high level of consumer protectionhigh level of consumer protection

Basic Consumer rights in EC Basic Consumer rights in EC Consumer Policy part 3Consumer Policy part 3

The Single European Act 1987The Single European Act 1987Art. 100a(3) (now 95(3))EC:Art. 100a(3) (now 95(3))EC:

““3.   The 3.   The CommissionCommission, in its proposals envisaged , in its proposals envisaged in paragraph 1 concerning health, safety, in paragraph 1 concerning health, safety, environmental protection and consumer environmental protection and consumer protection, will take as a base a high level of protection, will take as a base a high level of protection, taking account in particular of any protection, taking account in particular of any new development based on scientific facts. new development based on scientific facts. Within their respective powers, the European Within their respective powers, the European Parliament and the Council will also seek to Parliament and the Council will also seek to achieve this objective.”achieve this objective.”

Basic Consumer rights in EC Basic Consumer rights in EC Consumer Policy part 4Consumer Policy part 4

The Treaty of Maastricht (1992-The Treaty of Maastricht (1992-1994):1994):New Chapter XI on Consumer ProtectionNew Chapter XI on Consumer ProtectionNew Article 3(s) (now (t)): “a New Article 3(s) (now (t)): “a

contribution to the strengthening of contribution to the strengthening of consumer protection”consumer protection”

Art. 129a (now 153): “Art. 129a (now 153): “the the CommunityCommunity shall contribute to the attainment of a shall contribute to the attainment of a high level of consumer protectionhigh level of consumer protection””

Basic Consumer rights in EC Basic Consumer rights in EC Consumer Policy part 5Consumer Policy part 5

The Treaty of Amsterdam; new The Treaty of Amsterdam; new Article 153(1) EC:Article 153(1) EC: “ “In order to promote the interests of In order to promote the interests of

consumers and to ensure a high level of consumers and to ensure a high level of consumer protection, the Community consumer protection, the Community shall contribute to protecting the health, shall contribute to protecting the health, safety and economic interests of safety and economic interests of consumers, as well as to promoting their consumers, as well as to promoting their rightright to information, education and to to information, education and to organise themselves in order to organise themselves in order to safeguard their interestssafeguard their interests. “. “

The consumer’s right of self-The consumer’s right of self-determinationdetermination

Art. 2(1) GG (German Constitution): Art. 2(1) GG (German Constitution): ““freie Entfaltung der Persönlichkeit”freie Entfaltung der Persönlichkeit” – – Private autonomyPrivate autonomy

Jozef DrexlJozef Drexl 1998: the right of self- 1998: the right of self-determination is the most important determination is the most important constitutional right of consumersconstitutional right of consumers

Consequence: consumer protective Consequence: consumer protective measures should respect this measures should respect this principle (proportionality test)principle (proportionality test)

The place of fundamental rights The place of fundamental rights in the EUin the EU

Since Case 29/69 Since Case 29/69 StauderStauder: fundamental rights form part of : fundamental rights form part of the general principles of Community law; importance of the general principles of Community law; importance of ECHR – binding on institutions and M.S. acting within field of ECHR – binding on institutions and M.S. acting within field of Community lawCommunity law

Art. 6(2) EU TreatyArt. 6(2) EU Treaty “ “The Union shall respect fundamental rights, as guaranteed by The Union shall respect fundamental rights, as guaranteed by

the European Convention for the Protection of Human Rights the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions 1950 and as they result from the constitutional traditions common to the Member States, as general principles of common to the Member States, as general principles of Community law. “Community law. “

Charter of Fundamental Rights 2000Charter of Fundamental Rights 2000 EU Constitution (incorporation of Charter)EU Constitution (incorporation of Charter)

The importance of fundamental The importance of fundamental rights for consumersrights for consumers

Participation rights: freedom of assembly and of Participation rights: freedom of assembly and of association/right of access to documentsassociation/right of access to documents

Limitations on fundamental rights of Limitations on fundamental rights of undertakings, e.g.:undertakings, e.g.: Party protection at same level as freedom of contract (as Party protection at same level as freedom of contract (as

a fundamental right)? (B. a fundamental right)? (B. LurgerLurger , ERCL 2005, p. 448) , ERCL 2005, p. 448) freedom of expression and commercial speech;freedom of expression and commercial speech; respect of private and family life (Article II-67 respect of private and family life (Article II-67

Constitution)Constitution) protection of personal date (Article II-68(1) Constitution)protection of personal date (Article II-68(1) Constitution)

Equality: non-discrimination (art. II-80 and 81 Equality: non-discrimination (art. II-80 and 81 Constitution)Constitution)

The ECJ’ s fundamental rights The ECJ’ s fundamental rights case law and consumer rightscase law and consumer rights

Case C-71/02 Case C-71/02 Karner v TroostwijkKarner v Troostwijk: margin : margin of appreciation of M.S. in restricting of appreciation of M.S. in restricting freedom of expression in commercial freedom of expression in commercial matters, especially with regard to matters, especially with regard to advertisingadvertising

Case Case Omega Omega SpielhallenSpielhallen:: reliance on reliance on fundamental principle of human dignity fundamental principle of human dignity (“public policy” in Art. 46 EC) justifies (“public policy” in Art. 46 EC) justifies prohibition of a killer game: human dignity prohibition of a killer game: human dignity v. consumer’s right of self-determination?v. consumer’s right of self-determination?

Horizontal effect of fundamental Horizontal effect of fundamental (consumer) rights(consumer) rights

Fundamental rights: individual v. State; basic consumer Fundamental rights: individual v. State; basic consumer rights: individual v individualrights: individual v individual

No horizontal direct effect of (consumer) directives: Case C-No horizontal direct effect of (consumer) directives: Case C-91/92 91/92 FacFacccini Dori v Recrebini Dori v Recreb

But consistent interpetration: case C-240/98 But consistent interpetration: case C-240/98 Oceano GrupoOceano Grupo Significance of Case C-144/04 Mangold? Significance of Case C-144/04 Mangold? ““[…]it is the responsibility of the national court, hearing a […]it is the responsibility of the national court, hearing a

dispute involving the principle of non-discrimination in dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully of Community law and to ensure that those rules are fully effective, setting aside any provision of national law which effective, setting aside any provision of national law which may conflict with that lawmay conflict with that law.” .”

The new consumerThe new consumer

Fair Trade: “market driven ethical Fair Trade: “market driven ethical consumption” (see Alex Nicholson & consumption” (see Alex Nicholson & Charlotte Opal)Charlotte Opal)

The consumer is not necessarily a The consumer is not necessarily a “homo “homo economicuseconomicus””

Shouldn’t we rethink the consumer’s Shouldn’t we rethink the consumer’s basic rights? Or do effective basic rights? Or do effective competition and the right to be competition and the right to be correctly informed suffice?correctly informed suffice?