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Procedure : 2007/2010(INI)
Document stages in plenary
Document selected : A6-0281/2007

Texts tabled :

A6-0281/2007

Debates :

PV 06/09/2007 - 2
CRE 06/09/2007 - 2

Votes :

PV 06/09/2007 - 5.6
Explanations of votes

Texts adopted :

P6_TA(2007)0383

Texts adopted
PDF 143kWORD 65k
Thursday, 6 September 2007 - Strasbourg
Review of the consumer acquis
P6_TA(2007)0383A6-0281/2007

European Parliament resolution of 6 September 2007 on the Green Paper on the Review of the Consumer Acquis (2007/2010(INI))

The European Parliament,

–   having regard to the Green Paper on the Review of the Consumer Acquis (COM(2006)0744) and the EU Consumer Law Compendium – comparative analysis(1),

–   having regard to Community law on consumer protection, electronic commerce and the development of the information society,

–   having regard to its resolutions of 23 March 2006 on European contract law and the revision of the acquis: the way forward(2), of 7 September 2006 on European contract law(3) and of 21 June 2007 on consumer confidence in the digital environment(4),

–   having regard to the public hearing on the review of the European consumer acquis held at the European Parliament on 10 April 2007,

–   having regard to Rule 45 of its Rules of Procedure,

–   having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinions of the Committee on Economic and Monetary Affairs and the Committee on Legal Affairs (A6-0281/2007),

A.   whereas 48% of retailers are prepared to trade cross-border, but only 29% actually do so; whereas 43% of retailers believe that their cross-border sales would increase if the provisions of the laws regulating transactions with consumers were the same throughout the European Union(5),

B.   whereas half of all Europeans (50%) are warier of making cross-border purchases than domestic purchases; whereas over two-thirds (71%) think it is harder to resolve certain problems such as complaints, returns, price reductions and guarantees when shopping cross-border(6),

C.   whereas the overarching aim of the review is to achieve a real consumer internal market while striking a balance between a high level of consumer protection and the competitiveness of enterprises,

D.   whereas 90% of enterprises in Europe are very small enterprises, which by their nature establish a direct relationship of trust with the consumer, and are generally very local, and whereas account should be taken of these specific characteristics in the context of the review,

E.   whereas the minimum harmonisation approach does not achieve the aim of harmonisation and in 20 years of evolving consumer law has not been able to create an integrated internal retail market that benefits the public,

F.   whereas the eight consumer protection directives(7) named in the Green Paper need to be simplified and made consistent to avoid fragmentation and to achieve the modernisation of Community consumer law,

G.   whereas it is determined to complete the European internal market, for the benefit of the Community's 493 million consumers, and to remove remaining restrictions on competition in contract and commercial law,

H.   whereas, in order to enhance European citizens' confidence in the internal market, legal certainty, both for consumers and economic operators, needs to be increased and the legislation in force needs to be effectively applied,

I.   whereas the review, which will deal with consumer contract law, should utilise the current work on contract law and the creation of a common frame of reference (CFR) for European contract law, and should be integrated coherently therewith,

1.  Welcomes the Commission's Green Paper on the Review of the Consumer Acquis, particularly the stated goal of modernising, simplifying and improving the regulatory regime for professionals and consumers, thus facilitating cross-border trade and strengthening consumer confidence;

SCOPE OF THE REVIEW OF THE ACQUIS

2.  Recommends that the scope of the review concentrate on updating and creating coherence between the eight consumer protection directives named in the Green Paper; calls on the Commission to present, to Parliament and the Council, a report on the implementation of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('e-commerce Directive')(8), identifying questions relating to consumer confidence;

3.  Believes that it is essential for the Community legislature to take action to eradicate any inconsistencies that exist between the consumer directives under review;

4.  Believes that it is essential to have a clear overall vision of how the various legal and regulatory regimes affecting consumer and commercial law activities at EU level interact and function together, especially the relationship between any instrument produced by the review and those dealing with conflict of law rules(9) and those based on the country of origin principle (such as the e-commerce Directive);

GENERAL LEGISLATIVE APPROACH
The choice of a mixed approach

5.  Expresses its preference for the adoption of a mixed or combined approach, i.e. a horizontal instrument with the primary goal of ensuring the coherence of the existing legislation and enabling loopholes to be closed by grouping together, in consistent law, cross-cutting issues common to all the directives; considers that specific questions which are outside the scope of the horizontal instrument should continue to be considered separately in the sectoral directives;

6.  Considers that the horizontal instrument should be regularly reviewed and its effectiveness and impact evaluated, with a view to a revision if necessary;

7.  Is against the review of the Community acquis being used as a pretext to extend the scope of the legislation in the existing sectoral directives or to bring in additional directives;

Scope of the horizontal instrument

8.  Considers that the horizontal instrument should be applied as widely as possible to all consumer contracts, whether for national or cross-border transactions, in order to avoid introducing a further element of complexity by imposing different legal regimes on consumers depending on the nature of the transaction;

Degree of harmonisation

9.  Points out that harmonisation must not lead to a decline in the level of consumer protection as achieved under certain national laws, but should lead to a comparable level of consumer protection in all Member States;

10.  Welcomes the Commission's proposal for a horizontal instrument and acknowledges the possible advantages of what some have termed a basic 'consumer rights' directive; suggests that the horizontal instrument with cross-cutting policy areas, which should help to increase the coherence of terminology and remove loopholes and inconsistencies, should start from the principle of full targeted harmonisation;

11.  Suggests that sectoral tools that are being reviewed should be based on the principle of minimum harmonisation, combined with the principle of mutual recognition where the coordinated area is concerned; notes, however, that this does not exclude full targeted harmonisation where this proves necessary in the interests of consumers and professionals;

12.  Points out that as the law stands at present as regards the non-coordinated areas, the applicable law is determined by the rules of international private law, in particular the Rome Convention of 19 June 1980 on the law applicable to contractual obligations (Rome I); in this regard it will be important, during the current discussions, to avoid divergences between this Convention and specific Community legal acts;

13.  Recommends the inclusion, in the sectoral instruments, of an internal market clause to allow consumers to benefit fully from the internal market;

CONTENT OF THE HORIZONTAL INSTRUMENT AND RESPONSES TO THE GREEN PAPER

14.  Notes that Annex 1 to the Green Paper contains at points 4 and 5 an extensive list of contractual issues relevant to consumer contracts, that some of those issues have already formed part of the work on the CFR and that many are of a highly political nature where, were any general rule to form part of a harmonised instrument at EU level, there would need to be extensive (including public) debate and consideration;

15.  Is in favour of certain cross-cutting principles, applicable to all consumer contracts, being included in the horizontal instrument if they make that instrument more coherent, e.g. common definitions and general rules covering information requirements and the way the law on termination and withdrawal operates;

Definitions of consumer and professional

16.  Considers that the definitions of 'consumer' and 'professional' are not consistent either in Community legislation or in national legislation, and that it is essential to clarify these concepts in the horizontal instrument given that they determine the scope of consumer law;

17.  Considers that a consumer should be defined as any natural person acting for purposes which are outside their trade, business or profession; and considers that a professional should be defined as any person acting for purposes relating to their trade, business and profession;

18.  Furthermore, supports the inclusion in the horizontal instrument of further definitions such as 'written form' and 'durable media';

General clause of good faith and fair dealing

19.  Opposes the insertion in the horizontal instrument of a general clause of good faith and fair dealing applicable to consumer contracts;

Unfair terms
Scope

20.  Does not consider it appropriate to apply the rules on unfair terms to individually negotiated terms so as to restrict the freedom of the contracting parties to conclude contracts;

List of terms

21.  Considers that, in order to boost consumer confidence in the internal market, arrangements affording more protection should be introduced, while retaining a degree of flexibility; requests the Commission to carry out further examination of the use of a combination of a black list of banned terms and a grey list of terms presumed to be unfair and other terms which consumers could demonstrate to be unfair by means of legal action, on the basis of previously determined and uniform criteria;

Scope of the unfairness test

22.  Rejects the idea of extending the unfairness test to all the core terms of a contract, including the main subject matter of the contract and the assessment of the price, having regard to the principle of contractual freedom;

The contractual effects of failure to provide information

23.  Considers that at this stage it is very difficult to determine general rules on the contractual effects of failure to provide information which take into account the characteristics of each contract;

The right of withdrawal
Duration and the method of calculating the withdrawal period

24.  Underlines the need to standardise the methods for triggering and calculating the withdrawal period by giving priority to calculation according to calendar days in order to enhance the legal certainty of transactions;

25.  Considers that the length of the period should be harmonised where this is justified by the circumstances;

Methods of exercising the right of withdrawal

26.  Emphasises that consumer confidence in the internal market will be enhanced if the horizontal instrument provides for the consumer to be able to withdraw from the contract; considers that the means of withdrawal should be harmonised to improve legal certainty for both consumers and economic operators; considers also that the horizontal instrument should provide that consumers should not bear any costs other than the direct cost of returning the goods;

27.  Takes the view that in the case of a horizontal instrument, Member States could provide for exceptions to the right of withdrawal, if the contract is drawn up in the form of an authentic act;

28.  Believes that the introduction of a standard withdrawal form in all Community languages would simplify procedures, reduce costs, and increase transparency and consumer confidence;

Introduction of general contractual remedies

29.  Considers that the introduction of general contractual remedies goes beyond the scope of the review as it is something to be determined by national contract law;

30.  Recalls the discussion on collective redress and believes it deserves further consideration;

Specific rules on consumer sales
Types of contracts to be covered

31.  Considers that it is appropriate to examine issues relating to the protection of consumers when they conclude contracts providing digital content, software and data, in the light of the protection afforded by Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees; asks the Commission to examine this matter in detail so as to determine whether it is appropriate to propose one or more specific rules or to extend the rules set out in that Directive to this type of contract;

Second-hand goods sold at public auction

32.  Proposes excluding this issue from the scope of the horizontal instrument and maintaining the possibility for Member States to provide that the definition of consumer goods does not cover second-hand goods sold at public auctions; recommends, however, the adoption of specific rules for on-line auctions;

Definition of delivery and rules on passing of risk

33.  Considers that the definition of delivery is closely linked to the rules on passing of risk; proposes, therefore, the inclusion in the horizontal instrument of a common definition of delivery under which, in principle, priority should be given to contractual agreements;

Conformity of goods

34.  Considers that the horizontal instrument could, to good effect, extend the length of the statutory guarantee to include the period when the goods are unable to be repaired;

35.  Stresses, however, that the horizontal instrument should not include specific rules for second-hand goods, in order to respect rules adopted by Member States in accordance with their own legal traditions;

Burden of proof

36.  Proposes to maintain the principle of rebuttable presumption in its present form;

Remedies
Order in which remedies may be invoked

37.  Considers that the horizontal instrument could establish an order of available remedies in the case of wrong performance, with termination of the contract being reserved for total non-performance or particularly serious breaches of contract;

Notification of the lack of conformity

38.  Considers it appropriate for the horizontal instrument to eliminate existing divergences concerning the notification of lack of conformity, which are currently a source of confusion;

Direct producers' liability for non-conformity

39.  Considers that it is not appropriate to introduce direct producers" liability for non-conformity;

Commercial guarantees

40.  Points out that the issues relating to commercial guarantees (content, transfer, limitation) are not to be determined by a legal framework but are subject to the principle of contractual freedom; considers, therefore, that these issues should not be part of the horizontal instrument;

THE GREEN PAPER AND EUROPEAN CONTRACT LAW

41.  Insists that the review, which will deal with consumer contracts, should be coherently integrated with the work being carried out on contract law in general within the continuing process of achieving a CFR; emphasises, therefore, that the review and the work on the CFR need to progress in a complementary way, whilst acknowledging that achieving this coherence should not impede or delay the current review process;

EFFECTIVE APPLICATION OF CONSUMER LAW

42.  Emphasises the need to ensure the effectiveness of consumer law in order to strengthen consumer confidence in the internal market;

43.  Urges the Commission to improve existing consumer protection and information mechanisms, including ensuring proper application of and compliance with the rules in force;

44.  Urges the Commission to thoroughly assess the impact of any measures proposed within the framework of the review to ensure that they increase consumer confidence without imposing unnecessary burdens on businesses, especially small and medium-sized enterprises, and that they contribute to the completion of the internal market;

45.  Urges the Commission to coordinate its action internally and to promote the coherent development of sectoral legislation;

46.  Recommends scrupulous application of the principles of better regulation;

47.  Urges the Member States to strengthen cooperation between their authorities responsible for the application of consumer law and to promote judicial or extrajudicial remedies enabling consumers to enforce their rights at European level;

48.  Calls on the Member States to take up their responsibility to complete the internal market for goods and services and to refrain from gold-plating European consumer legislation; calls on the Member States to agree instead on a coherent strategy for targeted harmonisation of consumer legislation combined with an internal market clause that would enhance consumer confidence in the functioning of the internal market;

49.  Supports the Commission's current and planned initiatives concerning the education of consumers; takes the view that more could be done through cooperation between governments and industry in order to promote the provision of high-quality training in the financial sector so as to increase financial literacy and improve the quality of products and the legitimacy of the sector as a whole; welcomes the study commissioned on initiatives for general financial literacy in the European Union, the results of which are due to be available at the end of 2007;

50.  Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.

(1) http://ec.europa.eu/consumers/cons_int/safe_shop/acquis/comp_analysis_en.pdf.
(2) OJ C 292 E, 1.12.2006, p. 109.
(3) OJ C 305 E, 14.12.2006, p. 247.
(4) Text adopted, P6_TA(2007)0287.
(5) Business attitudes towards cross-border sales and consumer protection, Flash Eurobarometer 186, December 2006.
(6) Consumer protection in the internal market, Special Eurobarometer 252, September 2006.
(7) Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ L 372, 31.12.1985, p. 31).Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ L 158, 23.6.1990, p. 59).Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29).Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis (OJ L 280, 29.10.1994, p. 83).Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144, 4.6.1997, p. 19).Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ L 80, 18.3.1998, p. 27).Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers' interests (OJ L 166, 11.6.1998, p. 51).Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, 7.7.1999, p. 12).
(8) OJ L 178, 17.7.2000, p. 1.
(9) Proposal for a regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I) (COM(2005)0650) and Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199, 31.7.2007, p. 40).

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