THE GREEN PAPER ON THE REVISION OF CONSUMER ACQUIS: SOME OBSERVATIONS


                                       KATEŘINA SKŘIVÁNKOVÁ

                             Právnická fakulta, Masarykova univerzita


                                          FILIP KŘEPELKA



Key words

Green paper – consumer acquis – revision - harmonization – horizontal instrument


Introduction

The aim of the presented paper was to examine proposals of the Commission of the European
Communities concerning revision of eight directives of the European Communities on consumer
protection (the so-called consumer acquis), which were introduced by the Commission in the Green
Paper on the Revision of Consumer Acquis in February 2007. The structure of the paper followed
content logic of the Green Paper - divided into two major parts, the first one was dedicated to
possible methods of revision of consumer acquis – with special regard to so-called horizontal
instrument as a revolutionary change in the regulation of consumer protection on Community level,
the second one dealing with the most suitable levels of harmonization of legal norms regulating
consumer protection in the EC/EU. Each method of revision and level of harmonization were assessed,
comparing the current state with the proposed amendment, and conclusions and recommendations were
made.


Approaches to revision of consumer acquis


The Commission presented three alternative approaches to revision of consumer acquis - vertical
approach lying in the amendment of individual directives, mixed approach lying in the creation of a
so-called horizontal instrument functioning as a general basis of harmonization for all revised
directives, and preservation of the existing state. The vertical approach – which expected revision
of individual directives one after another – did not seem as a very clever solution of current
situation. It is true, on the one hand, that individual approach to each directive would guarantee
a really quality revision. However, such means of revision would not constitute a real improvement
to current state of affairs (the level of protection within the EC/EU would remain ambiguous) and
it would definitely present a burden for the Community institutions in the legislative process.
Therefore, this approach to revision had to be rejected as inconvenient.


As far as the second (mixed) approach is concerned, the situation looks much more promising. The
core idea of this approach – creation of a so-called horizontal instrument – suggests that consumer
acquis could gain a terminology basis common for all eight directives. Furthermore, purchase
contracts should form part of the instrument, and – last but not least – main institutes of
consumer protection legislation (such as the length of cooling-off periods or the possibility to
exercise the right of withdrawal) would be removed from individual directives and incorporated in
the instrument. The idea of the instrument is in general naturally praiseworthy, however, some
trouble occurs here. First of all, in case basic institutes really were to form a part of the
instrument (while at the same time they would „disappear“ from the directives), it would be crucial
to secure that these institutes become so to say applicable to all eight revised directives.
Another problem might occur if purchase contracts became part of the instrument and at the same
time relevant directives would be repealed – the question here being which are the relevant
directives and whether the provisions on purchase contracts could apply also to „remained“
directives. Suggested solution here was either to create a general instrument (with definition of
basic terms and major institutes of consumer protection legislation) applicable to all eight
directives or create one instrument and repeal the eight directives at the same time. As far as the
scope of the instrument is concerned, the Commission suggested three alternatives – applicability
of the instrument both to national and cross-border transactions, to purely cross-border
transactions or to all distance contracts (no matter whether national or cross-border). This paper
argues that the best solution regarding the scope of the instrument would be the first one, i. e. a
universal applicability to all consumer transactions carried out within one or more of the eight
revised directives.


The last proposal of the Commission – maintenance of the current state – is quite naturally not
satisfactory. As argued at the very beginning of the Green Paper, current situation of consumer
protection in the EC/EU is discriminatory. Due to principle of minimum harmonization, consumers as
well as professionals from different member states do not have sufficient legal certainty when
entering into mutual relations. Therefore, absence of a revision seems not a solution.



Levels of harmonization


In its second part – as well as the second part of the Green Paper – the paper dealt with level of
harmonization of consumer acquis. The Commission suggested three alternatives – revision of the
acquis leading to full harmonization, minimum harmonization together with principle of mutual
recognition and minimum harmonization together with the country of origin principle. As far as the
second and the third proposals are concerned, their first weak point is the maintenance of minimum
harmonization. As indicated above, minimum harmonization does not seem a suitable method in the
field of consumer protection, as it brings non-equal position of consumers and professionals across
the EC/EU. Furthermore, the conception of both mutual recognition and country of origin is in my
opinion not applicable to consumer matters. We can hardly expect the member states to refrain from
creating obstacles to consumers or – especially – professionals from other member states. This
applies especially to principle of country of origin, where also the reluctance of more
protectionist member states to accept professionals from other member states with less strict
(minimum) rules plays its role. Therefore, the conception of full harmonization together with
revision of the acquis appears to be the most suitable one, although one might argue that full
harmonization hardly leaves any space for the activity of member states and – in the current state
– is contrary to the EC Treaty.


Conclusion

After having examined all Commission proposals concerning methods and levels of harmonization, we
came to the conclusion that in order to ensure the same level of consumer protection within the
EC/EU, the revision of consumer acquis – by creating a horizontal instrument - together with full
harmonization are necessary.


Contact – email:

katerina.skrivankova@gmail.com