“CONSUMERS PROTECTION BETWEEN RIGHTS AND PRINCIPLES” SEMINAR III 28 APRIL 2016 DANIELA CORONA Zagreb University Law Faculty ‘European Public Law’

Historical Background EEC Treaty of Rome does not contain any provisions on fundamental rights Importance of the ECHR of 1950 “Dialogue” between Strasbourg and Lux judges Charter of Fundamental Rights of 2000 Lisbon Treaty: CFR is ‘legally binding’ Accession to the ECHR: still ongoing

CJEU case-law Stauder, Case C-29/69: “interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court” Solange I, Case C-11/70: constitutional traditions common to the MS Nold, Case C-4/73: international Treaties for the protection of human rights to which MS were signatory or had collaborated

Fundamental Rights as a LIMIT To the EU: Respect FR is a precondition for the legality of any act of the EU, administrative and legislative  Kadi I, Joined cases C-402/05P, C-415/05P To the MS: when they are implementing EU law or when they act within its scope  NS, Joined cases C-411/10, C-493/10

From Stauder to Lisbon Stauder (1969) Joint Declaration EP, EC, Council (1977) Treaties modifications Charter of Fundamental Rights ‘proclaimed’ (2000) Lisbon Treaty (art.6,1): The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, as adapted on 12 December 2007, which shall have the same legal value as the Treaties.

The Charter of Fundamental Rights Preamble Six Titles=fundamental rights Dignity (see NS) Freedom (see Kadi) Equality Solidarity (consumers protection) Citizens’ rights Justice (Kadi, Fransson)

The Charter of Fundamental Rights Horizontal provisions (artt ) - “ art. 51(1): the provision of the Charter is addressed to the EU institutions, agencies and bodies and to MS when they implement Union law” (See Fransson, C-617/10) - Art. 52(1): limitations on the exercise of the Charter rights - Art. 52(5): distinction between rights and principles - Art. 53: the protection afforded by the Charter cannot fall beyond that afforded by international law and international agreements to which the EU or all MS are parties, including the ECHR, and by MS’s constitutions (see Melloni, C- 399/11)

Art. 38 of the Charter “Union policies shall ensure a high level of consumer protection” Free movement (Cassis de Dijon) EU legislation affecting the consumer (art. 169 TFEU, art. 114 TFEU)  art. 12 TFEU: “Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities”

Art. 38 of the Charter It is not confined to economic activities but to all Union policies  ‘A European Consumer agenda – Boosting confidence and growth’ (2012): “In line with the Treaty (Article 12 TFEU) and the Charter of Fundamental Rights (Article 38), the Agenda develops a systematic approach to integrating consumer interests into all relevant policies and puts a special emphasis on tackling problems faced by today’s consumers in the food chain, energy, transport, digital and financial services sectors”

Art. 38 of the Charter Regulation 178/2002 (GFL) Regulation 1169/2011 on the provision of food information to consumers Regulation 1829/2003 on GMOs Regulation 882/2004 on official controls Directive 2011/83 on consumer rights Directive 2000/31 on electronic commerce Doorstep selling Directive (85/577/EEC) Etc.

Art. 38 of the Charter In the CJEU case-law: is it justiciable?

Art. 38 of the Charter A number of case in which art. 38 Charter has been cited en passant and other in which, even though not directly cited it could have been: See Deutsches Weintor eG v Land Rheinland-Pfalz, C-544/10; Bundesverband der Verbraucherzentralen und Verbraucherverbände, C-195/14  “ensure a high level of health protection for consumers” BUT….

Art. 38 of the Charter Deposit Guarantee (Case C-233/94): the direction to pursue a high level of consumer protection does not mean that the finally agreed harmonized norm must comply with the highest standard found among the MS!.....what about the human health and food safety?

Art. 38 of the Charter According to you, could the principle of consumers protection evolve and become a subjective right through the development of case law?

THANK YOU FOR YOUR ATTENTION!