EC Consumer and Health Law in the Candidate Countries

Inhalt

I. Consumer protection in the context of Community law
1. Community competence in consumer protection
2. The acquis communautaire on consumer protection
a) Protection of the health and safety of the consumer
b) Protection of economic interests
c) Reparation for damages
d) Consumer information, education and access to justice & injunctions

II. Public health in the context of Community law
1. Community competence in public health
2. The acquis communautaire on public health

III. Candidate Countries and consumer protection/public health
1. The different provisions:
2. Participation in Community Programmes and Agencies
3. Implementation of the acquis in the Candidate Countries
4. Conclusion

I. Consumer protection in the context of Community law

In a modern industrial society that offers such a variety of goods and services, consumer protection plays an increasingly important role.^[1] The vast variety of goods and services often leaves the consumer to make a decision about a purchase without possessing all the relevant information. The self-interest nature of consumers has led to the establishment of consumer protection unions.^[2]

Prior to the Amsterdam Treaty, consumer policy was seen as the direct preserve of the Member States. There was only a very small unit in the Commission concerned with consumer protection and it was not very influential and being attached to the Internal Market Directorate General. As a direct result of the BSE crisis consumer policy was given a distinct Directorate General. The BSE crisis increased the power of the now extremely influential European Parliament Committee for Environment and Consumers, especially as regards the European Commission as this Committee contained and still contains the rapporteur responsible for holding the Commission to task (threat of censure) over the handling of the crisis and the subsequent re-shuffle of the Commission Services. Competencies of the Commission Directorates General responsible for agriculture, for the Internal Market and for the environment were transferred to the new Consumer Directorate, which was established 1997. This has inevitably brought about a fundamental policy shift in proposed EC legislation but also in the implementation of legislation because of the number of comitology committees – ranging from scientific committees for food (GMOs for example) to animal health and welfare and veterinary and phytosanitary questions - have been transferred to the new Comitology Directorate General.

The concept of consumer protection is neither an uniform regulated nor sharply defined political area. Although it consists of various preventative measures, it is not an individual sector.^[3] The broad palette of enacted rulings clarifies the character of consumer protection as task with relations to nearly every policy field. The individual measures go so far as to establish standards for door-to-door sales, pharmaceuticals, foodstuffs, price indication, and product liability as well as to establish regulations for toys, time sharing, and the extension of credit to consumers.^[4] In terms of Article 153 paragraph 2 and Article 95 paragraph 3 EC, the demands of consumer protection must be taken into account in all Community policies.

The consumer who acquires goods or services for his own private use warrants the most attention. Pursuant to Article 153 paragraph 1 EC, the Community proceeds on the assumption that its measures will ensure a high level of protection for the health and safety of the consumer. The requirement that the whole Community and not just the Commission maintain a high level of protection is politically advisable but hardly judicially enforceable. Above all, the application of the precautionary principle seems to be very problematical.

Especially relating to the this principle the Commission submits a Communication^[5] with the aim to inform all interested parties how the Commission intends to apply the principle and to establish guidelines for its application. The Communication points out that the precautionary principle forms part of a structured approach to the analysis of risk, as well as being relevant to risk management. It covers cases where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen by the EC. The Communication also qualifies the measures that may be taken under the precautionary principle. Where action is deemed necessary, measures should be proportionate to the chosen level of protection, non-discriminatory in their application and consistent with similar measures already taken. They should also be based on an examination of the potential benefits and costs of action or lack of action and subject to review in the light of new scientific data and should thus be maintained as long as the scientific data remain incomplete, imprecise or inconclusive and as long as the risk is considered too high to be imposed on society. Ultimately, they may assign responsibility or the burden of proof – for producing the scientific evidence necessary for a comprehensive risk assessment.^[6]

Under the assumption that all citizens are individually responsible, obligatory labelling and consumer information should be sufficient means to ensure consumer protection, and rarely any goods need to be forbidden. In contrast to other measures used to restrict commerce, obligatory labelling and consumer information offer a much less restrictive means for protection.

1. Community competence in consumer protection

With the revision of Article 153 paragraphs 3-5 EC in the Treaty of Amsterdam of 1997, special competencies were transferred to the European Community to make a contribution to the achievement of this goal in the sense of Article 153 paragraph 1 EC. The European Community can enact consumer protection measures on the basis of Article 95 EC the Internal Market legal basis. These regulations affect the consumers of products, so that a relation to a good or service always exists. Provisions relating to free movement of goods, like rules concerning product safety, which imposes a general obligation that products placed on the internal market be safe,^[7] and the quality of goods, are always based on Article 95 EC.^[8] This is, for example, the case for regulations regarding the trade of foodstuffs, pharmaceuticals, and cosmetics as well as for the product protection of electronic goods. A high degree of consumer protection is expected for these areas (Article 95 paragraph 3 EC).

Aside from that, the European Community, on the basis of Article 153 paragraph 3 EC, can provide general measures for the support, amendment, and supervision of consumer protection policy in the member states. These measures are decided upon by the joint decision process outlined in Article 251 of the EC. In the field of consumer protection the EC has the option between the various legal acts of Article 249 EC.

In terms of Article 153 paragraph 5 EC, member states can retain measures in accordance with the treaty, or they can develop even more stringent means of consumer protection. Should this be the case, the Commission must be informed. The Community is fortunate to be able to use the power given it by Article 153 EC in order to develop an effective contribution in the field of consumer protection. But the treaty still views this to be primarily an issue with which the member states should concern themselves.

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^[1] See in general: G.G. Howells/T. Wilhelmsson, EC Consumer Law (Aldershot, Dartmouth; Brookfield, Vt., Ashgate., 1997).

^[2] See in detail: T. Bourgoignie (ed), Group actions and consumer protection = L’action collective et la défense des consommateurs (Louvain-la-Neuve, Centre de Droit de la Consommation, 1992).

^[3] L. Krämer, EWG-Verbraucherrecht (Baden-Baden, Nomos, 1985) p. 215.

^[4] Council Directive 85/577/EEC, OJ 1985 L 372/31 (door-to-door sales); Regulation 2309/93, OJ 1993 L 214/1 (pharmaceuticals); Directive 89/107/EEC, OJ 1989 L 40/27 (food additives); Directive 79/581/EEC, OJ 1979 L 158/19 and 88/314/EEC, OJ 1988 L 142/19 (price indication); Directive 85/374/EEC, OJ 1985 L 210/29 (defective products); Directive 88/378/EEC, OJ 1988 L 187/1 (toys); Directive 94/57/EC, OJ 1994 L 280/83 (time sharing); Directive 87/102/EEC, OJ 1987 L 42/48 (consumer credit).

^[5] COM (2000) 1 final.

^[6] For the consequences in the international food law see G.G. Sander, ‘Gesundheitsschutz in der WTO – eine neue Bedeutung des Codex Alimentarius im Lebensmittelrecht?’, 3 Zeitschrift für europarechtliche Studien (2000) pp. 335-375.

^[7] Council Directive 92/59/EEC on general product safety, OJ 1992 L 228/24.

^[8] N. Reich, Europäisches Verbraucherrecht, 3 rd. edn. (Baden-Baden, Nomos, 1996), para. 206.