Wednesday 27 February 2008

EU TFEU: Consumer protection

Can things change without changing the wording? The structure or interrelation between different parts of the EU treaties may seem an arcane hobby, apt to send anyone but a constitutional lawyer to sleep.

But let us take an example of how, arguably, the interests of citizens, the speeches of politicians and the actions of NGOs may be influenced by hardly noticeable change.

No change of wording, but a different perception leading to qualitative change.

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In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserted an Article 6a into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). We are given directions as to the contents in OJ 17.12.2007 C 306/48:

20) An Article 6a shall be inserted, with the wording of Article 153(2).

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Study of the current treaties is never amiss, so we look up the TEC (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 C E/116:

Article 153(2) TEC

2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.

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Our diligent work, which I hope has been repeated for every Article by each participant in the IGC 2007 and every ‘no’ voter in France and the Netherlands, has brought its own reward: We are delighted to realise that the Lisbon Treaty places a provision on consumer protection among the provisions having general application (Title II) in the TFEU:

Article 6a TFEU (ToL), to be renumbered Article 12 TFEU

Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.

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The European Convention had the commendable objective to offer us a unified and readable treaty. In Part III The policies and functioning of the Union, Title I Clauses of general application, there was Article III-5 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29), with the familiar text:

Article III-5 Draft Constitution

Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.

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The IGC 2004 preserved this laudatory aim of the Convention in the Treaty establishing a Constitution for Europe, where Part III The policies and functioning of the Union, Title I Provisions of general application, contained Article III-120 (OJ 16.12.2004 C 310/55) on consumer protection:

Article III-120 Constitution

Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.

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We find exactly the same wording in every version, from the current TEC to the Lisbon Treaty, but from a systematic point of view the ordering of horizontal or transversal provisions, having general application, improves clarity and readability of all the treaty versions from the draft Constitution onwards, and helps to enhance the visibility of every general provision.

It is easier to use these provisions having general application as a check list for every proposed legislative act, regardless of area, and raise them in legal and political debate, than if the text of each of them was tucked away in its own niche, like the provision on consumer protection we followed.

I submit that there is a qualitative change, although the wording is unchanged.

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What about substance?

Those who want an overview of European Community policies and activies in the field of consumer affairs can start from the Europa web pages, Activities of the European Union, Summaries of legislation, Consumers:

http://europa.eu/scadplus/leg/en/s16000.htm

‘Consumers: Introduction’ offers four pages of background on how consumer protection has evolved in the EC, although the pages have last been updated 16 August 2006 and still speak of an EU-25 as a novelty:

http://europa.eu/scadplus/leg/en/lvb/l32000.htm

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Consumer protection is of interest to 490 million citizens and consumers as well as to most businesses operating in or trading with the European Union.



Ralf Grahn

4 comments:

  1. Hi Ralf

    Interesting, but yes it is heavy going even for lawyers. I could not resist posting on this

    http://laf.ee/wp/?p=19

    Would you agree that a forum on consumer protection rights AND remedies across member states might be interesting?

    Cheers

    ReplyDelete
  2. Hello Michael,

    Regardless of if I am mad or not, your comment brought your interesting Quickthink blog to my attention and, soon, on my blogroll.

    As a quick answer without checking: As far as I remember, there is a network for sorting out crossborder consumer disputes, but perhaps you have something more ambitious in mind.

    I would agree with you on the general mindset in EU member states being fairly narrow and nationalistic, but at the same time I submit that the European Union with an untold number of meetings and committees is the world's largest international learning organisation.

    Within their remits, national politicians and civil servants come into contact with other ways to do things, more successful (or worse) models, and they have to defend their national 'oddities' if they want to keep them, which leads to reflection on things that would continue as usual without outside pressure.

    Peer reviews and the open method of coordination are among these means to entice member states to adopt more progressive solutions.

    Things do not happen overnight, but I believe that over time the EU can evolve through emulation (the sincerest form of flattery).

    ReplyDelete
  3. Hi Ralf

    Thanks for the kind words - and the linking (of course I will do the same).In general terms, I do agree with your point about the slow moving but steady learning process in Europe (interesting that you call it an international rather than post modern organization). At the same time, I am not sure whether I would include the courts and private lawyers in this process. Von Colson was decided long ago. But are effective remedies now the norm? I just am not sure. What do you think? I had in mind some chit chat about this subject. All the best!

    ReplyDelete
  4. Michael,

    I am sorry that it took me a while to mull over your proposed chit chat, and for the moment, to reach the conclusion that I have nothing worthwhile to offer right now.

    I will keep your question in mind, and perhaps I will gain knowledge as my pilgimage progresses.

    ReplyDelete

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