Basic consumer rights
and fundamental rights
Jules Stuyck
Professor K.U.Leuven,
partner, Liedekerke. Wolters.
Waelbroeck. Kirkpatrick, Brussels
Outline
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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
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Development of consumer law in EU closely
linked to development free movement law
EC Competition law also serves the interests of
consumers
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: individual v. State; basic
consumer rights: individual v individual
Consumer’s basic right of self determination v.
fundamental rights? (e.g. human dignity)
The new consumer (fair trade)
Basic Consumer rights in EC
Consumer Policy part 1
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First EC Consumer Programme:
The right
safety
The right
rights
The right
The right
The right
to protection of health and
of protection of economic
of redress
to information and education
of representation
Basic Consumer rights in EC
Consumer Policy part 2
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The second Action Programme 1981
Five basic consumer rights reaffirmed
Council Resolution 1986: necessity of
high level of consumer protection
Basic Consumer rights in EC
Consumer Policy part 3
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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
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The Treaty of Maastricht (19921994):
New Chapter XI on 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”
Basic Consumer rights in EC
Consumer Policy part 5
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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. “
The consumer’s right of selfdetermination
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Art. 2(1) GG (German Constitution):
“freie Entfaltung der Persönlichkeit” –
Private autonomy
Jozef Drexl 1998: the right of selfdetermination is the most important
constitutional right of consumers
Consequence: consumer protective
measures should respect this
principle (proportionality test)
The place of fundamental rights
in the EU
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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
“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. “
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Charter of Fundamental Rights 2000
EU Constitution (incorporation of Charter)
The importance of fundamental
rights for consumers
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Participation rights: freedom of assembly and of
association/right of access to documents
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)
 freedom of expression and commercial speech;
 respect of private and family life (Article II-67
Constitution)
 protection of personal date (Article II-68(1)
Constitution)
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Equality: non-discrimination (art. II-80 and 81
Constitution)
The ECJ’ s fundamental rights
case law and consumer rights
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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?
Horizontal effect of fundamental
(consumer) rights
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Fundamental rights: individual v. State; basic consumer
rights: individual v individual
No horizontal direct effect of (consumer) directives: Case C91/92 Faccini Dori v Recreb
But consistent interpetration: case C-240/98 Oceano Grupo
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.”
The new consumer
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Fair Trade: “market driven ethical
consumption” (see Alex Nicholson &
Charlotte Opal)
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?