Basic consumer rights and fundamental rights Jules Stuyck Professor K.U.Leuven, partner, Liedekerke. Wolters. Waelbroeck. Kirkpatrick, Brussels

Outline  Introduction  Basic Consumer rights in EC Consumer Policy  The Consumer’s right of self-determination  The place of fundamental rights in the EU  The importance of fundamental rights for consumers  The case law of the ECJ on fundamental rights and its impact on basic consumer rights  Horizontal effect of fundamental (consumer) rights  Basic (fundamental) consumer rights and the new consumer

Introduction Development of consumer law in EU closely linked to development free movement law Development of consumer law in EU closely linked to development free movement law EC Competition law also serves the interests of consumers EC Competition law also serves the interests of consumers Free competition and free movement are basic – quasi constitutional – principles of EC law Free competition and free movement are basic – quasi constitutional – principles of EC law Fundamental rights play an increasing role in free movement case law Fundamental rights play an increasing role in free movement case law Fundamental rights: individual v. State; basic consumer rights: individual v individual Fundamental rights: individual v. State; basic consumer rights: individual v individual Consumer’s basic right of self determination v. fundamental rights? (e.g. human dignity) Consumer’s basic right of self determination v. fundamental rights? (e.g. human dignity) The new consumer (fair trade) The new consumer (fair trade)

Basic Consumer rights in EC Consumer Policy part 1 First EC Consumer Programme: First EC Consumer Programme: The right to protection of health and safety The right to protection of health and safety The right of protection of economic rights The right of protection of economic rights The right of redress The right of redress The right to information and education The right to information and education The right of representation The right of representation

Basic Consumer rights in EC Consumer Policy part 2 The second Action Programme 1981 The second Action Programme 1981 Five basic consumer rights reaffirmed Five basic consumer rights reaffirmed Council Resolution 1986: necessity of high level of consumer protection Council Resolution 1986: necessity of high level of consumer protection

Basic Consumer rights in EC Consumer Policy part 3 The Single European Act 1987 The Single European Act 1987 Art. 100a(3) (now 95(3))EC: “3. The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.”

Basic Consumer rights in EC Consumer Policy part 4 The Treaty of Maastricht ( ): The Treaty of Maastricht ( ): New Chapter XI on Consumer Protection New Chapter XI on Consumer Protection New Article 3(s) (now (t)): “a contribution to the strengthening of consumer protection” New Article 3(s) (now (t)): “a contribution to the strengthening of consumer protection” Art. 129a (now 153): “the Community shall contribute to the attainment of a high level of consumer protection” Art. 129a (now 153): “the Community shall contribute to the attainment of a high level of consumer protection”

Basic Consumer rights in EC Consumer Policy part 5 The Treaty of Amsterdam; new Article 153(1) EC: The Treaty of Amsterdam; new Article 153(1) EC: “In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests. “ “In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests. “

The consumer’s right of self- determination Art. 2(1) GG (German Constitution): “freie Entfaltung der Persönlichkeit” – Private autonomy Art. 2(1) GG (German Constitution): “freie Entfaltung der Persönlichkeit” – Private autonomy Jozef Drexl 1998: the right of self- determination is the most important constitutional right of consumers Jozef Drexl 1998: the right of self- determination is the most important constitutional right of consumers Consequence: consumer protective measures should respect this principle (proportionality test) Consequence: consumer protective measures should respect this principle (proportionality test)

The place of fundamental rights in the EU Since Case 29/69 Stauder: fundamental rights form part of the general principles of Community law; importance of ECHR – binding on institutions and M.S. acting within field of Community law Since Case 29/69 Stauder: fundamental rights form part of the general principles of Community law; importance of ECHR – binding on institutions and M.S. acting within field of Community law Art. 6(2) EU Treaty Art. 6(2) EU Treaty “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. “ “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. “ Charter of Fundamental Rights 2000 Charter of Fundamental Rights 2000 EU Constitution (incorporation of Charter) EU Constitution (incorporation of Charter)

The importance of fundamental rights for consumers Participation rights: freedom of assembly and of association/right of access to documents Participation rights: freedom of assembly and of association/right of access to documents Limitations on fundamental rights of undertakings, e.g.: Limitations on fundamental rights of undertakings, e.g.: Party protection at same level as freedom of contract (as a fundamental right)? (B. Lurger, ERCL 2005, p. 448) Party protection at same level as freedom of contract (as a fundamental right)? (B. Lurger, ERCL 2005, p. 448) freedom of expression and commercial speech; freedom of expression and commercial speech; respect of private and family life (Article II-67 Constitution) respect of private and family life (Article II-67 Constitution) protection of personal date (Article II-68(1) Constitution) protection of personal date (Article II-68(1) Constitution) Equality: non-discrimination (art. II-80 and 81 Constitution) Equality: non-discrimination (art. II-80 and 81 Constitution)

The ECJ’ s fundamental rights case law and consumer rights Case C-71/02 Karner v Troostwijk: margin of appreciation of M.S. in restricting freedom of expression in commercial matters, especially with regard to advertising Case C-71/02 Karner v Troostwijk: margin of appreciation of M.S. in restricting freedom of expression in commercial matters, especially with regard to advertising Case Omega Spielhallen: reliance on fundamental principle of human dignity (“public policy” in Art. 46 EC) justifies prohibition of a killer game: human dignity v. consumer’s right of self-determination? Case Omega Spielhallen: reliance on fundamental principle of human dignity (“public policy” in Art. 46 EC) justifies prohibition of a killer game: human dignity v. consumer’s right of self-determination?

Horizontal effect of fundamental (consumer) rights Fundamental rights: individual v. State; basic consumer rights: individual v individual Fundamental rights: individual v. State; basic consumer rights: individual v individual No horizontal direct effect of (consumer) directives: Case C-91/92 Faccini Dori v Recreb No horizontal direct effect of (consumer) directives: Case C-91/92 Faccini Dori v Recreb But consistent interpetration: case C-240/98 Oceano Grupo But consistent interpetration: case C-240/98 Oceano Grupo Significance of Case C-144/04 Mangold? Significance of Case C-144/04 Mangold? “[…]it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law.” “[…]it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law.”

The new consumer Fair Trade: “market driven ethical consumption” (see Alex Nicholson & Charlotte Opal) Fair Trade: “market driven ethical consumption” (see Alex Nicholson & Charlotte Opal) The consumer is not necessarily a “homo economicus” The consumer is not necessarily a “homo economicus” Shouldn’t we rethink the consumer’s basic rights? Or do effective competition and the right to be correctly informed suffice? Shouldn’t we rethink the consumer’s basic rights? Or do effective competition and the right to be correctly informed suffice?