8.9.2005   

EN

Official Journal of the European Union

C 221/153

1.1

The enlargement of the EU, when ten new Member States will be joining the EU at the same time, does not just raise problems of a quantitative nature.

A global analysis of the impact of accession on the European Union's structure and the way it operates was one of the main concerns of the European Convention and is behind a whole series of initiatives set out in the draft constitution.

Enlargement also calls for a sectoral policy discussion about the impact on the various sectors which will be affected. (1)

1.2

As far as EU consumer policy and law in particular are concerned, however, until now there has not been any systematic, in-depth discussion about the qualitative consequences of enlargement, nor about the possible changes and adjustments entailed in adapting consumer policy and law to the new market of around 500 million consumers.

1.2.1

However, during the meeting promoted by the EESC in Thessalonki on 14 and 15 March 2003, it was stressed that enlargement could involve major changes to the guidelines underlying consumer policy, with implications even for the Treaty and also for the concrete methods used to define new consumer protection measures in such a way as to apply them effectively with sufficient harmonisation throughout Europe where differences between Member States' domestic legislation will inevitably grow.

1.3

Indeed, this is a matter of a real ‘qualitative leap’ — a new way of defending, protecting and promoting consumers' interests, ensuring that consumers are consulted and involved, safeguarding their representation at all levels of political decision-making, in a new landscape with diverse characteristics, distinct consumer practices and habits, different cultural traditions, and different laws and codes of conduct.

1.4

The aim of this own-initiative opinion was therefore to encourage as detailed discussion as possible about the effects of enlargement on consumer policy and consumer law, which could lead to proposals being put forward on consumer policy guidelines for the period after the new Member States' full integration, or possible changes to the Community acquis for protecting, defending and promoting consumers' interests and involving consumers, or even new legislative initiatives which might be considered necessary.

2.1

In order to prepare this opinion, it seemed necessary to obtain as clear an understanding as possible of the difficulties the new countries have encountered in implementing Community legislation.

2.2

To this end, two questionnaires were sent out to a variety of high profile speakers with responsibilities in this area, both from public administration bodies and from consumer organisations and certain professional bodies more directly involved in consumer relations. In addition, a hearing on this subject was held on 2 December 2003, attended by a large number of participants.

2.3

Based on the hearing's results and an analysis of the replies to the questionnaire, and taking into account the outcome of bilateral contacts pursued during the work, this opinion is able to provide a basis for conclusions and recommendations about possible changes to post-enlargement consumer policy guidelines.

3.1

It is generally agreed that the primary objective of any consumer policy in tune with the reality of life today in an enlarged single market must be increasingly to promote consumers as ‘market partners’ and therefore to foster and create the means and mechanisms that allow them to be involved in defining policy guidelines affecting them. (2)

3.2

While it is true that not only local, regional and national government organisations in the various Member States, but also the different departments of the various Community institutions and bodies, play an important role in achieving this objective, there is a general sense that it is up to consumers themselves to decide — of their own accord and as part of their right to establish and join associations and federations — how best to organise themselves so that their interests are defended and represented and so that they themselves are involved in debating and defining the policy guidelines which affect them at various political and legislative decision-making levels.

3.3

The fundamental principle in this area must therefore be full recognition of the capacity and autonomy of consumers to organise and manage themselves so that they can establish and join associations and federations at local, regional, national, Community and international level, thereby ensuring that their interests are properly represented and that they themselves are involved in all bodies where decisions affecting them are taken.

It is clearly up to the legislator, whether at national or Community level, to ensure that this requirement is met.

3.4

There have nonetheless been calls from many quarters calling for identical parameters to be defined at Community level to ensure that all consumer organisations respect, of their own accord, the fundamental principles of democratic organisation and methods, which in turn ensure that consumers in general are properly and independently represented.

3.4.1

A number of Community instruments already set out criteria defining the parameters for gauging the representativeness of consumer organisations and associations so that they can be compared across the EU (3). These criteria were, however, considered to be insufficient.

3.4.2

To this end, the EU has also defined a number of criteria for recognising representative consumer organisations, such as those laid down in Directive 98/27/EC of 19 May 1998 on injunctions for the protection of consumers' interests (4).

3.4.2.1

However, these criteria entail an ‘administrative’ decision by the Member States and cannot therefore be used as the basis for a uniform definition of what is meant by a representative consumer association or organisation, which is identical and comparable in the various Member States and throughout the area covered by the single market.

3.5

Several characteristics have been identified in an attempt to define a uniform concept of what ‘representative consumer association’ means, namely:

3.5.1

It has also been suggested that cooperative organisations, in particular consumer cooperatives, should be placed on the same footing as consumer associations (5).

3.5.2

In addition, the possibility has been raised of requiring representative associations to be officially recognised by an authorised public body in the Member States; it has also been suggested, however, that support for consumer organisations should be based on their technical qualifications and on the results of their work and not solely on their accreditation by national authorities.

3.6

Owing to the delicate nature of this matter, the Committee, recognising it as being important, believes that the Commission should discuss it in depth and then publish its findings in a Communication.

3.7

In order to ensure that organisations representing consumers' general and specific interests properly exercise the consumer's right to representation at Community level in particular, a number of shortcomings or gaps in existing systems have also been identified.

3.7.1

One aspect warranting special mention is the training needs of managers and trainers in the aforementioned representative consumer associations and organisations (6).

3.7.2

In addition to generic information programmes targeting consumers in general, consumer associations and organisations must also be given tailor-made, advance information which they can then pass on to their members or to consumers in general in their respective countries or regions.

3.7.3

Consumer associations themselves must be better represented in the various Community bodies, either directly or through their umbrella organisations. The EESC does, nonetheless, welcome the Commission's recent initiatives to restructure the Consumer Committee (7) and appoint a Consumer Liaison Officer within DG Competition (8) and hopes that this example will be followed in other policy areas affecting consumers (9).

3.7.4

It would also be a good idea to start organising regular European consumer forums again, in order to step up and improve dialogue, information and cooperation between consumer organisations.

4.1

One of the main priorities for proper consumer representation is to ensure that representative bodies are properly financed, at both organisational and operational level (10).

4.2

Regardless of the national arrangements in force in each country, a number of consumer representatives feel that only with significant Community support and incentives will representative consumer associations have the resources necessary to play their essential role of defending, promoting and representing consumers at regional, national, Community and international level (11).

4.3

The general point has also been made that, because consumer associations rely on funding generated by members' subscriptions and their own initiatives, they can find it difficult on their own to avoid bankruptcy and thereby safeguard their autonomy and independence vis-à-vis political and economic interests (12).

In order to safeguard these principles, any financial support received must, as a rule, be put towards action, programmes, projects and initiatives for training technical staff and providing consumer education and towards covering the cost of class actions for defending consumers' general interests, rather than funding the everyday management of these bodies.

4.4

The current Community support framework for consumer organisations and associations is laid down in Decision 20/2004/EC of 8 December 2003 establishing a general framework for financing Community actions in support of consumer policy for the years 2004 to 2007 (13), which must be viewed in conjunction with the Review of the rolling programme of actions of the Consumer Policy Strategy 2002-2006 of 15 September 2003 (14).

5.1

Article 153 clearly identifies the concept of minimum harmonisation and a high level of consumer protection as a fundamental principle of Community consumer policy (15).

5.2

In keeping with this approach, which incidentally is not new (16) and has not been changed in the draft Constitution either, most of the consumer protection directives that have been adopted include a ‘minimal clause’, worded more or less as follows:

‘This Directive shall not prevent Member States from adopting or maintaining provisions which are more favourable or more stringent as regards consumer protection in the field in question, without prejudice to their obligations under the Treaty’ (17).

5.3

However, it would seem, at least from the Green Paper on European Union Consumer Protection (18) and, more recently, the Communication from the Commission on Consumer Policy Strategy 2002-2006 (19), that full harmonisation is now the preferred method of approximating legislation in areas affecting consumer protection.

5.3.1

This is the line taken, in particular, in the recently proposed Directives on credit for consumers (20) and unfair commercial practices (21). Together with the excessive importance attached to the principle of mutual recognition (22), this would seem to be a general, as opposed to a merely one-off, approach which is justified either by the nature of the issues concerned or by the need to complete key aspects of the internal market.

5.3.2

Whenever measures intended exclusively or primarily to ensure the smooth operation of the internal market are concerned, the EESC acknowledges the advantage of adopting legislation to ensure the highest possible degree of harmonisation of the rules governing legal transactions between companies or between companies and consumers. This is particularly important given that the EU will soon number 25 Member States.

5.3.2.1

To achieve this objective, the EESC therefore believes that, wherever possible, and taking into account the nature of the subject in hand, the EU needs to adopt regulations (or, to use the new nomenclature of the draft European Constitution, ‘European laws’ (23)) or otherwise directives (or ‘European framework laws’) which target full harmonisation, as this is the best way of safeguarding the certainty and security of secondary law.

5.3.3

The EESC nonetheless holds the view that the sine qua non of seeking such harmonisation is that consumer protection must be provided at the highest level in line with technological developments, scientific knowledge and the cultural models of the time.

5.4

In all other situations where the primary objective of promoting these interests is not to ensure the completion or smooth operation of the internal market but rather to secure consumer protection, the EESC believes that the best way of safeguarding these interests is to uphold the principle of minimum harmonisation. The idea would be to ensure a high level of protection while at the same time allowing the Member States to maintain or adopt more stringent consumer protection measures in accordance with the Treaty and in strict application of Article 153(5).

5.5

With another ten countries joining the EU, the EESC recommends that the Commission review its recent approach of adopting a general preference for maximum harmonisation and instead confine this to situations relating to the completion or operation of the internal market. It also calls on the Commission always to ensure that, in such cases, consumer protection is guaranteed at the highest level in keeping with advances in scientific knowledge, technological developments and socio-cultural models in the area in question.

5.6

‘Scientific knowledge’ refers to the knowledge-basis for consumer policy decision makers. It includes the approved results of

Apparent deficits in the availability of a knowledge-basis should be eliminated by setting up a workable research capacity.

5.7

Wherever possible, and technical and legal developments permitting, the EESC also recommends using regulations (or ‘European laws’ under the new nomenclature), as this is the most appropriate instrument for effectively securing approximation of legislation and for ensuring legal certainty and security when applied to legal transactions (24).

6.1

A number of basic principles in the Treaty are also fundamental elements of secondary law and must always be invoked when defining the nature, essential attributes, suitability and scope of regulatory measures in the various sectors and when developing EU policies.

Consumer law is no exception.

6.2

The most important of these are the subsidiarity principle (25), the principle of mutual recognition and the precautionary principle.

6.3

Without going into an in-depth analysis of the scope of the subsidiarity principle as it applies to consumer protection legislation, when considered in conjunction with Article 153, its current wording gives rise to what some people have termed ‘dual subsidiarity’ (26).

6.3.1

Indeed, in addition to the test of ‘primary’ or general subsidiarity set out in TEC Article 3b, the legislator wanted to subject the measures referred to in Article 153(3)(b) to an even more stringent test of ‘secondary’ subsidiarity. That is, even after they have passed the subsidiarity test, such Community measures will only be admissible if and insofar as they ‘supplement’ or ‘support’ Member States' initiatives in the areas mentioned.

6.3.2

In other words, the Member States must always have taken steps to either adopt or propose measures at national level before the Community can introduce measures to ‘supplement’ or ‘support’ such steps where it is appropriate to do so.

6.3.3

In short, the Community does not therefore have the power to take action even in the areas explicitly outlined above and even if, according to the subsidiarity principle laid down in Article 3b, such action is justified, unless it is supplementing or supporting specific measures taken by Member States.

6.4

It is therefore essential — in all circumstances and particularly when applying the subsidiarity principle — that consumers' representatives bring home to the Community institutions that their interpretation of this principle must not hold up the adoption of much-needed and appropriate consumer protection measures.

6.5

Likewise as regards the principle of mutual recognition (27) the Committee has already expressed its views in some depth in its November 2000 own-initiative opinion (28) following the key Commission Communication on Mutual recognition in the context of the follow-up to the action plan for the single market  (29) .

6.6

In turn, the Commission has published programmes of measures for implementing the principle of mutual recognition in a number of specific sectors, in particular, decisions in criminal matters and in civil and commercial matters (30).

6.7

As far as measures affecting consumers are concerned, there has been a growing trend towards extending such measures to other areas of legislation, particularly when full harmonisation is also being sought.

6.8

It must be pointed out that, while application of the principle of mutual recognition is in general warranted, there are areas where doing so means that consumers are subject to different Member States' laws. This generates confusion and is a major disincentive to cross-border trade (31).

6.9

The EESC would therefore draw the Commission's attention to the need for the principle of mutual recognition to be applied with care and in such a way that is in tune with the reality of the sector concerned, whenever it is used to approximate legislation.

6.10

On the other hand, the EESC feels that the precautionary principle, incorporated into Community law when the Maastricht Treaty came into force and only applies to environmental policy, must be considered as a legal principle common to all EU policies, in particular consumer protection policy. This would have significant practical consequences, particularly for systematic and objective risks assessment and in terms of reversing the burden of proof in favour of consumers as a general rule in civil liability law (32).

7.1

As referred to above, the idea of a horizontal approach to, and the mainstreaming of, consumer policy was included in the EC Treaty when the Amsterdam Treaty came into force; it had already been mentioned in various Commission programming documents (33) and nowadays has gained considerable ground in the Commission's policy guidelines, in addition to warranting mention as a fundamental right in the draft Constitution (34).

7.2

Indeed, the Commission's ‘Consumer Policy Strategy 2002-2006’ (35) states that: ‘As well as specific consumer protection rules, consumers are also affected by other important EU policies such as the internal market, environment and sustainable development, transport, financial services, competition, agriculture, external trade and more. Consumer policy as such cannot be developed in isolation without taking into account other areas that have an impact on consumers. Systematic integration of consumer concerns into all relevant EU policy areas is essential’ (36).

7.3

In reality, however, this principle has not been put into practice systematically in the measures for implementing and developing the various Community policies, and neither has the above-mentioned strategy document attached priority to this objective, contrary to the proposals put forward by the EESC in its opinion on the Commission's Communication (37).

7.4

It thus calls for transparent mechanisms to be devised and credible practices put in place to guarantee that consumers' interests are always taken into account and a high level of consumer protection ensured when measures are adopted in any area falling within the EU's sphere of responsibility (38).

7.5

To this end, the EESC suggests in particular that the Commission weigh up the need to boost the human and material resources of DG SANCO and redefine the way that its methods and procedures tie in with the other directorates-general.

7.5.1

The other Community institutions — from the Council to the European Parliament, Committee of the Regions and the EESC itself — should likewise rework their approach so as to do more to ensure that consumer protection is properly taken into consideration in all Community policies.

8.1

Given the increasing proliferation and complexity of new legislation and regulations in the area of consumer law, it would be advisable — if not imperative — to continue to improve lawmaking and simplify legislation.

8.2

The Commission has expressed growing concern about these aspects of the Community legislative process (39).

8.3

The Committee meanwhile has not only voiced the same concerns as the Commission (40), but since 2000 has also made ‘simplification’ an ongoing focus of its Single Market Observatory.

8.4

The EESC therefore welcomes the inter-institutional agreement reached between the EP, the Council and the Commission in this area (41) and moreover refers back to the comments it made in the aforementioned opinions and, in particular, in its recently adopted opinion on the Commission's latest Communication on this subject (42).

8.5

This subject is particularly important where consumer law is concerned, insofar as the latter primarily affects private individuals; particular attention must therefore be given to further simplifying consumer law so that it is easier to understand and apply (43).

8.6

At the same time, efforts should be made to step up codification, as already begun by the Commission, albeit on a small scale where several directives are concerned.

8.7

Given that the term ‘codification’ has many possible meanings, there does not seem to be any value in drawing up an actual, dedicated European Consumer's Code (44); instead, we should continue with the concerted approach to reworking Community law along the lines of major themes, harmonising the provisions enshrined in the various legislative initiatives and organising them according to subject area.

8.8

One widely acknowledged way of reducing the legislative burden would be to make greater use of self- and co-regulation mechanisms.

8.8.1

Without wishing to anticipate the EESC opinion currently being drafted on this subject, the point can however already be made that, where consumer law in particular is concerned and in an as yet unconsolidated market where there is an acknowledged lack of information, it will only be possible to develop alternative self- and co-regulation systems where there is a legal framework with well-defined scope, parameters and criteria. The EESC has moreover already stated this in its opinion on unfair commercial practices (45).

9.1

For a long time now, the EESC has been demonstrating the decisive role of proper consumer information and education in promoting, protecting and defending consumers' interests.

9.2

Where consumer information in particular is concerned, the EESC has pointed out that it is not enough to provide specific information about each service or product, however detailed such information may be; rather, there is a need for general information on consumers' rights which in turn must serve as a basis for tailor-made information on the goods and services concerned (46).

9.3

Where consumer education is concerned, a recent EESC own-initiative opinion not only extolled the virtues of the ‘educated consumer’, but also detailed the content and techniques of consumer education and the role of the various players (European Union, Member States, consumer associations, professionals, etc.) in education processes (47).

9.4

In any moves to rework consumer policy — a necessary consequence of enlargement — consumer information and education should play an even greater role in ensuring that consumers' interests are promoted and protected effectively, while still leaving it up to the Member States and consumer associations to define the guidelines and criteria for bringing such information and education into line with the specific circumstances and features of each national, regional or local market.

9.4.1

It is not only schools, consumer associations, businesses, professionals, and Member States who have a role to play in this important task.

It is the responsibility of the European Union not only to coordinate initiatives, but also to encourage and promote measures designed to improve the quality of information and the level of education of consumers (48).

9.4.2

Such measures must not be limited to providing adequate financial support, but must also include the development of joint information and education campaigns and programmes.

9.4.3

They should also include not only consumers but also professionals, providers of goods and services and even regulators and bodies responsible for implementing the law, with particular emphasis on members of the legal profession (judges, lawyers, public prosecutors, etc.).

10.1

One fundamentally important element will be the outcome of the recent proposal for a regulation on cooperation between national authorities responsible for the enforcement of consumer protection laws (COM(2003) 443 final of 18.7.2003), on which the Committee has already issued an opinion (49).

10.2

For the system for monitoring infringements of Community legislation to be ever more effective and for national implementation to guarantee effective application, the various limitations revealed in this proposal will have to be tackled.

An aspect worth altering immediately is the proposal's scope, which the EESC considered far too limited.

11.1

The EESC is well aware that no changes to legislation will produce immediate effects or instantaneous results. Therefore — in addition to its concern to stress the need to consolidate and promote proper application of existing laws — in this discussion on the various areas which could be dealt with in greater depth or improved upon, the EESC is also keen to emphasise the gradual, concerted nature of possible developments to pursue, so as not to upset the essential balance between the main interests concerned, but not forgetting that on most occasions consumers are at a disadvantage in the consumption process.

11.2

It is with this in mind that the EESC lists below a number of areas requiring thought, with a view to improving the current legislative framework governing legal transactions which directly affect consumers.

11.2.1

One such area concerns the safety of services for consumers, and, associated with this, the way that a supplier's responsibility for defective services is regulated.

11.2.2

In 1992, the proposal for a directive on this subject was shelved (50). In response to a call from the Council and the Parliament to ‘identify the needs, possibilities and priorities for Community action on the safety of services’ (51), the Commission has decided to start up discussions on this issue again with its Report of 6 June 2003 (52), and more recently with its Proposal for a Directive on services in the internal market (53); this decision has been greeted with renewed hope.

11.2.3

There is nevertheless concern that the Commission's approach to this matter, based on an erroneous interpretation of the subsidiarity and complementarity principles in relation to national policies, might mean that timely, effective measures are not taken (54).

11.2.4

Another area where there is a major gap in Community legislation concerns the definition of the scope of key services of general interest and the standard principles which should govern them, in terms of the continuity and universal nature of services, price accessibility, right of access and freedom of choice, etc. (55)

11.2.4.1

Following on from its opinions on this subject (56), the Committee feels that EU enlargement requires precise guidelines to be drawn up with a view to the privatisation of certain key public services and the identification — as a matter of urgency — of core services of general interest, which will have to include air and rail transport, electricity, gas and postal and telecommunications services. (57)

11.2.4.2

In the absence of quality indicators precise enough to allow a comparative assessment of these services, the Commission's promised communication on a method for the horizontal assessment of services of general interest is eagerly awaited. (58)

11.2.5

One other shortcoming noted to date concerns Community-wide standardization of the law applying to non-contractual obligations.

11.2.5.1

The Commission initiative to move forward with a proposal for a Regulation (59) on this subject therefore warrants special mention; together with the comments and suggestions made by the EESC in its opinion (60), this proposal represents a key component of legislative harmonization throughout the enlarged EU in an area vital for securing adequate consumer protection.

11.3

As far as the right to information is concerned, in particular as regards foodstuffs (61), in addition to the fact that the labelling should be made increasingly clear for consumers, other modern methods should likewise be used to improve consumer information (internet, free telephone lines, consumer support services, etc) without forgetting, wherever necessary and possible, a reference to the product's origin (62).

11.4

As regards health protection and safety, an increasingly effective operation of the RAPEX system (63) depends on the capacity of the Member States to respond. The EESC therefore reiterates that there is a need to invest in the quality of the system for monitoring the Community market through projects which help shape and develop Member States' market control mechanisms, particularly in the accession countries, providing back-up for both consumer representative bodies and the relevant public bodies (64).

11.4.1

In turn, consumer organisations must provide reliable information on the safest goods and services and make public the results of inspections carried out at national level.

11.5

On the protection of economic interests of consumers, various aspects warrant attention and reworking:

11.5.1

As far as producer liability  (65) is concerned, the current arrangements are out of balance, to the detriment of the consumer, as regards the burden of proof imposed on the consumer on the one hand, and the grounds for exemption from producer liability on the other.

11.5.1.1

There are thus solid grounds for continuing with the current work on Directive 85/374/CEE of 25 July along the lines recommended inter alia in the Green Paper on Liability for Defective Products (66), which a succession of studies commissioned by the Commission have taken into account (67).

11.5.2

Certain misgivings have been expressed about steps restricting consumer protection on doorstep sales  (68) to express requests from consumers, because of the difficulty in supplying proof and because it is sometimes unclear what rules should apply. The EESC feels that this problem should be revisited so as to work out a basis for protecting the consumer against fraudulent behaviour, in addition to which the whole directive should be reviewed in the light of current unfair, aggressive practices and the Community texts referring thereto.

11.5.3

As regards distance contracts  (69) , it would be important, as a matter of urgency, to reach a decision on placing the burden of proof on the supplier as regards compliance with requirements on the existence of prior information, written confirmation and consumer consent (70). Moreover, it would be appropriate to analyse the suitability of information requirements in distance contracts covering new technologies.

11.5.4

The EESC has concerns about the application of the right of withdrawal, deeming it to be important to standardise time-limits in the various legal texts concerned and to draw up clear rules for exercising this right, particularly as far as the distance marketing of financial services (71) and consumer credit (72) is concerned. The EESC feels it has to point out that there is a need to simplify these arrangements which are complex and lack transparency (73).

11.5.5

On the protection of consumers against unfair terms in consumer contracts  (74), it would be valuable for the Commission to carry out a systematic, up-to-date survey of general contractual terms which have expressly been declared as unfair, either in Member States' domestic case-law, or in the case-law of the Court of Justice, with a view to passing this information on to consumer and professional organisations (75).

11.5.5.1

On the other hand, since it has been recognised that the regulatory framework is outmoded, the EESC calls on the Commission to complete its review work quickly, in the wake of its Report on the implementation of the Directive (76) and the numerous meetings it has organised in this connection.

11.5.6

As for the matter of consumer credit  (77), the EESC has already had the opportunity to issue its views on the recent Commission proposal (78) on this subject; it feels it appropriate to reaffirm here the need to combat extortionate money-lending practices and to balance out the rights and obligations of consumers and credit providers. Disparities between national legislation in this sphere and the different levels of consumer protection — which could get worse when the new Member States join the EU — could damage confidence on the financial services market and create distortions in competition.

11.5.7

A matter which urgently needs to be dealt with at Community level, as underlined by the EESC on several occasions, is household over-indebtedness; this has been worsening recently and there are fears that it will spiral upwards with the likely rise in interest rates (79).

11.5.8

The EESC also considers that it is vital to further develop legislation on the security of electronic payments  (80) ; it welcomes the Commission's recent initiative to launch a debate on the establishment of a single area for payments in the single market (81).

11.5.8.1

However, a comprehensive approach to electronic trade is still lacking; such an approach is necessary to gain consumers' confidence, as was made clear at the conference held in Dublin on the occasion of the 2004 European Consumer Day.

11.5.8.1.1

In addition, work carried out to date to set up systems for accrediting professionals in this sphere has not even led to any self-regulation measures being adopted to enable consumers to identify reliable websites.

11.5.8.1.2

Thus, recent Commission initiatives to promote more secure internet use (82) and on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audiovisual and information services industry are to be welcomed, despite their limitations (83).

11.5.8.2

Moreover, there is no world-wide legal framework similar to the one introduced in the EU with the Brussels I Regulation, which is essential for the secure development of international electronic transactions; for this reason, a convention on matters pertaining to jurisdiction and the implementation of verdicts in matters civil and commercial is a key objective to pursue at the Hague conference.

11.5.9

One area of crucial importance is the standardisation of contract law, launched by the Commission and supported by the EESC (84); this should be pursued and further developed, focusing on the standardisation of specific types of contracts which are of particular interest to consumers (85).

11.5.10

The recently published Directive on certain aspects of the sale of consumer goods and associated guarantees (86) deals with aspects relating to guarantees involved in the sale of goods. The EESC's criticisms directed at that proposal, as set out in its opinion on the subject (87), still hold true, especially as regards the links between commercial and legal guarantees, and the procedures for putting these into practice.

11.5.10.1

It will now be necessary not only to rethink the extension of the Directive's scope to cover after-sales services (88), but in particular for the Commission to monitor closely how this is being transposed into Member States' legislation, because of the complexity of the arrangements and the fact that it will be difficult to tie these in with national laws.

11.5.11

One area where it was very much hoped that the Commission would adopt a position in the wake of the Green Paper on Consumer Protection (89) was, precisely, unfair commercial practices.

11.5.11.1

Nevertheless, in its opinion on this subject (90), the EESC has already had the opportunity to express its disappointment and a certain apprehension as regards the path and guidelines set out in the Directive concerned.

11.5.11.2

This issue will therefore have to be monitored closely in the future, especially by consumers' representatives and in particular in the new Member States.

11.5.12

In the same vein, the EESC has already expressed its dissatisfaction regarding the draft regulation on Sales Promotions  (91) and it reiterates here that it is apprehensive about the final form of this regulation and the way it will tie in with the proposal on unfair commercial practices, fearing that together these two instruments, instead of helping promote consumers' interests further, will in the end entail a step backwards from current consumer protection levels.

11.6

Lastly, as regards access to justice, the EESC deems it necessary to strengthen the protection of not only collective, general and similar individual interests (92) — by revising the Directive on injunctions for the protection of consumers' interests (93) as a matter of urgency, extending its scope so as to turn it into genuine ‘class action’ aimed at promoting damage compensation in addition to merely putting a stop to unlawful or unfair practices — but also the legitimate interests of individual consumers in a conflict situation, especially as regards access to speedy justice, ideally free of charge (94). In this connection the EESC would reiterate that it advocates the use of not only alternative means of conflict settlement (alternative dispute resolution — ADR) (95), but also arbitration procedures, and considers it to be a matter of priority importance to give national authorities operational and technical support for setting up and implementing ADR and arbitration procedures in the various Member States (96).

11.6.1

The EESC also advocates adopting binding legislation which, without prejudice to the subsidiarity and proportionality principles, secures the objectives set out by the Commission in its Recommendations on this matter (97). These concern in particular the principles of consumer freedom and of the impartiality and transparency of the process, making binding rules out of what are at present mere recommendations which have not been effectively applied in practice on a widespread basis.

11.7

In this connection, the EESC welcomes the Commission's recent initiatives in judicial cooperation; it would highlight the recent regulations on insolvency proceedings (98) and the law applicable to court jurisdiction (Brussels Convention) (99), as well as the proposed Regulation on the law applicable to non-contractual obligations (Rome II) (100), the Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument (Rome I) (101), and the Regulation establishing a general framework for Community activities to facilitate the implementation of a European judicial area in civil matters (102). It urges the Commission to continue steps to set up a single judicial area as a keystone of structural support for completion of the single market, increasingly important in an enlarged EU.

12.1

Promoting, protecting and defending consumers' interests and involving consumers must be an ongoing objective of all EU policies, as a genuine right of European citizens.

12.2

Now that the EU has ten new Member States, in most of which consumer protection is a relatively new issue, consumer policy as a whole must be rethought so as to bring it into line with the new reality of a market of around 500 million consumers.

12.3

The EU and its institutions play a key role in identifying priorities for re-defining the legal and institutional framework and the programmes and actions essential to ensuring an effective consumer policy that safeguards and meets these objectives.

12.4

With this own-initiative opinion, the EESC — in its capacity as a relay for the concerns of civil society — wishes to play a part in defining such a policy, making a particular effort to involve representatives from the new Member States.

12.5

The EESC is of the view that the immediate priorities for consumer policy must be to:

12.6

The EESC considers that strong and independent consumer organisations provide the basis for an effective policy for defending and promoting consumers' interests and involving consumers.

12.7

To this end, the EESC is of the view that it is essential to ensure that consumer organisations are properly financed so that they can develop actions, programmes, projects and initiatives.

12.8

The EESC believes that a key way to make consumer policy more effective is to define criteria for gauging representativeness and the involvement of consumer organisations.

12.9

The EESC considers that — without losing sight of the need to maintain a balance between the interests in question — new legislative initiatives should gradually be introduced, particularly in the following areas:

12.10

The EESC also believes that existing Community legislation must be reviewed and harmonised to bring it into line with the new enlarged single market, with particular emphasis on the following areas:

12.11

The EESC recalls its proposal to set up a European Research Institute for Consumer Protection as a provider of the knowledge-basis for consumer policy (103).

12.12

The EESC calls on Member States to make the protection, defence and promotion of consumers' interests and the involvement of consumers a priority in all their policies.

12.13

The EESC recommends that the Commission take account of the proposals and suggestions put forward in this opinion when defining the new consumer policy guidelines and periodically to issue reports on the situation of consumption and consumers in Europe.

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The future of cohesion policy in the context of enlargement and the transition to a learning society (CES 848/2002), for which the rapporteur was Mr Malosse, OJ C 241 of 7.10.2002.

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Economic and social consequences of enlargement in the candidate countries, for which the rapporteurs were Mr Dimitriadis and Mrs Belabed, OJ C 85 of 8.4.2003.

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The impact of enlargement on EMU, for which the rapporteur was Mr Vever, OJ C 61 of 14.3.2003.

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The impact of the enlargement of the European Union on the single market, for which the rapporteur was Mrs Belabed, OJ C 85 of 8.4.2003.

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Transport/Enlargement, for which the rapporteur was Mr Kielman, OJ C 61 of 14.3.2003.

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Financial assistance for Pre-accession, for which the rapporteur was Mr Walker, OJ C 61 of 14.3.2003.

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EU enlargement: the challenge faced by candidate countries of fulfilling the economic criteria for accession, for which the rapporteur was Mr Vever, OJ C 193 of 10.7.2001.

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Eastward enlargement of the European Union and the forestry sector, for which the rapporteur was Mr Kallio, OJ C 149 of 21.6.2002.

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(See too the EESC opinion on this by Mr Hernández Bataller (INT/180) of 17.7.2003, OJ C 234 of 30.9.2003.)