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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

¹ See in general: G.G. Howells/T. Wilhelmsson, (&&RQVXPHU/DZ (Aldershot, Dartmouth; Brookfield, Vt., Ashgate., 1997).

² See in detail: T. Bourgoignie (ed), *URXS DFWLRQV DQG FRQVXPHU SURWHFWLRQQ /¶DFWLRQQ FROOHFWLYHH HW ODD GpIHQVHHGHVFRQVRPPDWHXUV (Louvain-la-Neuve, Centre de Droit de la Consommation, 1992).

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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

³ L. Krämer, (:*9HUEUDXFKHUUHFKWW(Baden-Baden, Nomos, 1985) p. 215.

⁴ Council Directive 85/577/EEC, 2- 1985 L 372/31 (door-to-door sales); Regulation 2309/93, 2- 1993 L 214/1 (pharmaceuticals); Directive 89/107/EEC, 2- 1989 L 40/27 (food additives); Directive 79/581/EEC, 2- 1979 L 158/19 and 88/314/EEC, 2- 1988 L 142/19 (price indication); Directive 85/374/EEC, 2- 1985 L 210/29 (defective products); Directive 88/378/EEC, 2- 1988 L 187/1 (toys); Directive 94/57/EC, 2- 1994L 280/83 (time sharing); Directive 87/102/EEC, 2- 1987 L 42/48 (consumer credit).

⁵ COM (2000) 1 final.

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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.

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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).

⁶ For the consequences in the international food law see G.G. Sander, ‘Gesundheitsschutz in der WTOeine neue Bedeutung des Codex Alimentarius im Lebensmittelrecht?’, 3 =HLWVFKULIWW IUU HXURSDUHFKWOLFKH 6WXGLHQ (2000) pp. 335-375.

⁷ Council Directive 92/59/EEC on general product safety, 2- 1992 L 228/24.

⁸ N. Reich, (XURSlLVFKHV9HUEUDXFKHUUHFKW, 3 rd. edn. (Baden-Baden, Nomos, 1996), para. 206.

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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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The central area of planned consumer policy concerns itself with the technical safety of products, product installation, and product performance. Even after the introduction of Article 153 EC, the legal acts in the area of consumer protection has no immediate effect among private citizens. 9

The Council has founded its first Programme for the Protection and Instruction of the Consumer in 1975 ¹⁰ and has formulated five rights: health protection and safety, protection of economic interests, compensation, education and development and collective representation of interests. Since the introduction of this first programme, the bodies of the Community have launched resolutions, actions etc. for increased consumer protection by means of a comprehensive social protection programme. The Commission serves consumer protection by offering relevant informative publications serving as an important instrument in the development of this field. The introduction of a community information system for domestic and leisure time accidents, in accordance with Article 153 EC, would present a genuine measure of consumer protection. The Community has been collecting information on domestic accidents and accidents resulting from leisure

⁹ ECJ, Case C-192/94 (OO&RUWH,QJOqVV6$$Y&ULVWLQD%Oj]TXH]]5LYHUR [1996] ECR I-1303/04.

¹⁰ 2--1975 C 290/1.

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time activities since 1983, although this collection of data was first made mandatory in 1994 ¹¹ .

Previously, new campaigns were announced with the introduction of the ”Consumer Policy Priorities of 1996-1998” which was put forward by the Commission ¹² along with a Green Paper for consumer rights and settlements for consumer complaints ¹³ . The consumer protection programmes of the Community bodies reach beyond the internal market aspects and are trying to establish consumer protection rights in the broad sense of Article 153 EC. Inevitably, constant conflicts between consumer protection interests as they are socially understood and the demands of the open market consistently arise. Meanwhile direct or indirect practical measures of the EC Consumer protection are enacted at large. An incontestable categorisation is not possible since the aspects often overlap; for example, the rules of advertising provide both health protection and consumer information simultaneously ¹⁴ . The entire body of EC Consumer protection laws present a coherent effort on behalf of the Community to establish a ”user-friendly” trade of goods and services.

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This category encompasses many measures in conjunction with the adaptation of foodstuffs regulation (composition of additives, presentation and labelling, quotation of price, standards of quality), ¹⁵ rulings for the use of pharmaceuticals, the tar content of cigarettes, general product safety ¹⁶ , and the European firearm licenses. The Directive 98/43/EC ¹⁷ for the advertising of tobacco products contained an extensive ban on the advertising of these products for health reasons. An argument arose, however, as to whether or not the Community possessed the competence under Article 95 EC to issue this Directive and if such a guideline was not a violation of the proportionality

¹¹ Decision 3092/94/EC, 2- 1994 L 331/1.

¹² COM (95) 519 final.

¹³ COM (96) 576 final.

¹⁴ See: R. O’Rourke, (XURSHDQQ)RRG/DZ (Bembridge, Palladian, 1998), pp. 25-43.

¹⁵ See: G.G. Sander, ‘Evropské potravinové právo [European Food Law]’, 6 (YURSVNppDPH]LQiURGQuuSUiYR [European and International Law] (2000) pp. 16, 19-35.

¹⁶ Directive 92/59/EEC, 2- 1992 L 228/24.

¹⁷ 2- 1998 L 213/9.

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principle. ¹⁸ After a complaint from Germany, the European Court of Justice declared the Directive to be null and void based on a lack of authority. ¹⁹ The outbreak of Mad Cow Disease (BSE - bovine spongiform encephalopathy) has led to the further development and strengthening of existing measures to protect consumer health. ²⁰ In 2000 the Commission submitted four proposals for Regulations on hygiene rules ²¹ and other matters relating to food of animal origin ²² .

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This category encompasses a large number of different rulings, relating to for example, product labelling, misuse of clauses in consumer treaties ²³ , door-to-door sales ²⁴ , time sharing ²⁵ , all-inclusive vacation packages ²⁶ and the extension of credit to consumers ²⁷ . The rulings relating to advertisements are many and have special significance. The protection of economic interests often goes hand-in-hand with other motivationsespecially those relating to health protection. ²⁸ Important aspects of protection measures are those relating to misleading advertising ²⁹ . On the other hand, comparative advertising in many areas is not recognised as being in the interest of having better consumer information across the European Community. 30

¹⁸ Th. von Danwitz, 3URGXNWZHUEXQJ LQQ GHU (XURSlLVFKHQQ 8QLRQQ ]ZLVFKHQQ JHPHLQVFKDIWOLFKHQQ .RPSHWHQ]VFKUDQNHQQXQGHXURSlLVFKHPP*UXQGUHFKWVVFKXW](Berlin, Duncker & Humblot, 1998) pp. 48 et. seq.

¹⁹ ECJ, Case C-376/98 'HXWVFKODQGY(XURSHDQQ3DUOLDPHQWDQG&RXQFLO, Decision of 5 October 2000 (not yet reported).

²⁰ E.g. see Commission Decision 97/579/EC, 2- 1997 L 237/18 on internal re-organization and Communication from the Commission on Consumer Health and Food Safety, 1997; COM (97) 183 final. In general E. Vos, ‘EU Food Safety Regulation in the Aftermath of the BSE Crisis’, 23 -RXUQDORI&RQVXPHU 3ROLF\ (2000) pp. 227-255.

²¹ COM (2000) 0438 final, 2000/0178(COD).

²² COM (2000) 0438 final, 2000/0179 (COD), 0180 (COD) and 0181 (CNS).

²³ Directive 93/13/EEC, 2- 1993 L 95/29.

²⁴ Directive 85/577/EEC, 2- 1985 L 372/31.

²⁵ Directive 94/57/EEC, 2- 1994 L 280/83.

²⁶ Directive 90/314/EEC, 2- 1990 L 158/59.

²⁷ Directive 87/102/EEC, 2- 1987 L 42/48.

²⁸ See: A.C. Neal (ed), 7KH(XURSHDQ&RPPXQLWLHV¶¶KHDOWKKDQGVDIHW\OHJLVODWLRQ (London, Chapmann & Hall, 1992).

²⁹ Directive 84/450, 2- 1984 L 250/17.

³⁰ Directive 97/55, 2- 1997 L 290/18.

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