Prof. Dr. Christa Tobler, LLM
THE LISBON TREATY AND ITS INFLUENCE ON CONSUMER LAW
Content
I. Introduction ....................................................................................................................................................... 1
II. Consumer law and civil law more generally before the Lisbon revision ........................................................... 1
1. Consumer law ............................................................................................................................................. 1
2. Civil law more generally............................................................................................................................... 2
III. Selected aspects of the Lisbon Treaty and their relevance for consumer law ................................................ 3
1. The latest of a series of comprehensive Treaty revisions............................................................................ 3
2. Structure of the EU and the EU’s basic legal texts ...................................................................................... 4
3. Competences of the EU (including in relation to consumer protection) ....................................................... 4
4. Legislative procedures................................................................................................................................. 6
5. Changes on the level of the substantive law ............................................................................................... 6
IV. The effect of the Lisbon revision on consumer law: two case studies ............................................................ 7
1. First case study: rights of air passengers .................................................................................................... 7
2. Second case study: insurance law .............................................................................................................. 8
3. Findings based on the case studies ............................................................................................................ 9
I. Introduction
The following text is based on a presentation given on 23 April 2011 at the Ryukoku
University in Kyoto, Japan. The subject for the presentation had been agreed upon with the
host, Prof. Kunihiro Nakata of that same university and of the Kyoto Comparative Law
Center, where I used to do research when in Japan from September 1988 until April 1989.
The aim of the presentation was to be twofold. First, the presentation was to deal with the
Lisbon Treaty, i.e. with the fundamental revision of European Union (EU) and European
Community (EC) law brought about by the so-called Lisbon Treaty, signed in Lisbon in 2007
and entered into force on 1 December 2009. Second, it was to sketch the effect of the revision
on consumer law.
Accordingly, the following text begins by providing some general background
information on consumer law and civil law more generally as they stood under EU law before
the Lisbon revision (below II.), followed by a discussion of selected aspects of the Lisbon
Treaty and its effects on consumer law and civil law more generally (below III.). Finally, two
case studies illustrate effect of the changes in the law brought about by the Lisbon revision on
the substantive level (below IV.).
II. Consumer law and civil law more generally before the Lisbon revision
1. Consumer law
When considering the effect of the Lisbon revision on EU consumer law, it must be
remembered that consumer law was a well-established policy area long before that revision.
While not mentioned in the original Treaty on the European Economic Community (EEC), a
first action programme on consumer protection was formulated in 1975.1 It was followed by
1
Preliminary programme of the European Economic Community for a consumer protection and information
policy, OJ 1975, C 92/2.
the adoption of a number of directives, which were conceived of as common market
instruments (i.e. legislation originally based on Art. 100 and later on Art. 100a of the EEC
Treaty, later Arts. 94 and 95 EC). Among these were the Directive on cosmetics (1976),2 the
Directive on the labelling of food (1979),3 the Directive on misleading advertising (1984),4
the Directive on toys (1988) and the Directive on package tours (1990), 5 to mention a number
of important examples.
On the level of the EEC Treaty, the Treaty revision brought about by the Single
European Act (1986/1987) introduced the obligation of the institutions to aim for a high level
of protection of consumers in its common market legislation (Art. 100a(3) of the EEC Treaty,
later Art. 95(3) EC, post-Lisbon Art. 114(3) TFEU). In 1979, the Court of Justice of the
European Union (European Court of Justice, ECJ) in the context of the prohibition of
quantitative restrictions on the importation of goods (post-Lisbon: Art. 34 TFEU) recognised
the protection of the consumers as a mandatory requirement in its famous Cassis de Dijon
decision.6 Finally, the Treaty of Maastricht (1992/1993) made consumer law an express
policy area under European Community law (Title XI of the EC Treaty, Art. 129a). However,
the new title in the Treaty did not contain any directly effective, substantive provision on
consumer protection. Rather, it was a combination of a programme provision with a legal
basis provision. In other words, consumer law was to be established through secondary law.
The same is still the case post-Lisbon (Art. 169 TFEU).
2. Civil law more generally
Turning to civil law more generally, it should first be noted that the historically most
important Treaty rules of a substantive nature, i.e. the provisions concerning free movement
and competition, have always applied both in the context of both public and civil law. In fact,
the original EEC law itself was not based on this distinction, which rather originated from the
national laws of the Member States. Today, the term „civil“ is used on the level of the Treaty
in very limited contexts only, not all of which concern civil law (e.g. judicial cooperation in
civil matters under Arts. 81 TFEU et seq., and civil protection under Art. 196 TFEU).7
On the level of secondary law, much of the secondary legislation traditionally
concerns the legal relationship between private individuals (e.g. the e-commerce Directive8
and the Distance Sales Directive).9 Further, there are interesting projects in the field of civil
law, such as the creation of a Common Frame of Reference, intended to increase the overall
coherence of European contract law.10 In 2010, the Commission published a Green Paper on
contract law for consumers and businesses,11 which mentions various options for action.
2
Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products, OJ
1976 L 262/169.
3
Directive 79/112/EEC on the approximation of the laws of the Member States relating to the labelling,
presentation and advertising of foodstuffs for sale to the ultimate consumer, OJ 1979 L 33/1.
4 Directive 84/450/EEC relating to the approximation of the laws, regulations and administrative provisions of
the Member States concerning misleading advertising, OJ L 1984 250/17.
5
Directive 90/314/EEC on package travel, package holidays and package tours, OJ 1990 L 158/59.
6
Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR.
7
Compare however e.g. the German terminology, which does not include the term „civil“: Katastrophenschutz.
8
Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic
commerce, in the Internal Market, OJ 2000 L 178/1.
9
Directive 97/7/EC on the protection of consumers in respect of distance contracts, OJ 1997 L 144/19.
10
See http://ec.europa.eu/consumers/cons_int/safe_shop/fair_bus_pract/cont_law/common_frame_ref_en.htm.
11
Green Paper on policy options for progress towards a European Contract Law for consumers and businesses,
COM(2010) 348.
Among these is a European Civil Code. However, the Commission itself notes in the Green
Paper: „Although impediments to the smooth functioning of the internal market exist also in
areas of law other than contract law, it is yet to be established to what extent an extensive
instrument such as a European Civil Code could be justified on grounds of subsidiarity.“
Indeed, under the present Treaties it seems rather unlikely that the EU has the competence to
adopt a truly general European Civil Code.
Overall, it can be stated that whilst civil law has always been under the influence of
EU law (formerly: European Community law), it has never as such been a general policy area
of the former European Community or now of the European Union.
III. Selected aspects of the Lisbon Treaty and their relevance for consumer law
Against the above background, the question arises of what are the consequences of the Lisbon
revision for the field of consumer law. Below, some important aspects concerning the Lisbon
revision are mentioned.12
1. The latest of a series of comprehensive Treaty revisions
First, it should be noted that the Lisbon revision is the latest of a series of large Treaty
revisions. There have been several such large revisions since the founding of the three
economic Communities in the 1950s. Particularly important were: 1) the Single European Act
1986/1987 (reviving the Internal Market), 2) the Maastricht revision 1992/1993 (founding of
the European Union), 3) the Amsterdam revision 1997/1999 (structural changes to the EU)
and 4) the Nice revision 2001/2003 (preparation for the upcoming enlargement). Following
these revisions the Lisbon revision of 2007/2009 brought about fundamental changes to
structure and institutions in particular. It was the latest comprehensive revision (for the sake
of completeness: a small revision was decided in March 2011: insertion of a new section (3)
into Art. 136 TFEU in the context of the crisis of the euro, through a simplified procedure).
The Lisbon Treaty, which contains the changes agreed upon in the revision procedure,
must be seen against the background of the Laeken Declaration of 15 December 2001 on the
future of the European Union. The declaration resulted from a meeting of the European
Council held in Laeken (Belgium) in December 2001.13 The declaration stated the aims for
any further reform as being „more democracy, transparency and efficiency.“
Attempts to create a Constitutional Treaty14 based on these aims did not succeed but
the Lisbon revision – eventually – did. The changes brought about by this revision are
contained in the so-called Lisbon Treaty.15 These changes concern in particular the structure
of the EU, the institutions (which are not discussed in this text) and the EU’s competences
and decision-making. In contrast, the Lisbon Treaty brought about few real changes on the
level of substance.
12
Concerning the Lisbon revision, see Michael Dougan, The Treaty of Lisbon 2007: Winning Minds, Not
Hearts, Common Market Law Review 45 (2008), 617-703; see also e.g. the summaries prepared by the
Europa Institute of Leiden University, available online at http://media.leidenuniv.nl/legacy/lisbon-treatysummaries.pdf.
13
See http://european-convention.eu.int/pdf/lknen.pdf.
14
Treaty Establishing a Constitution for Europe, OJ 2004 C 319 (not entered into force; ”Constitutional
Treaty”).
15
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European
Community, OJ 2007 C 306 („Lisbon Treaty“).
2. Structure of the EU and the EU’s basic legal texts
The structural changes brought about by the Lisbon Treaty must be seen against the
background of the unique structure that characterised the EU before that revision. At that
time, the EU was often compared to a temple whose roof rests on three pillars, the first being
the law relating to the European Communities, the second the law relating to the Common
Foreign and Security Policy (CFSP) and the third on Police and judicial cooperation in
criminal matters. Connected to this structure was the fact that the EU worked in two
fundamentally different ways: while the first pillar (Community law) was supranational in
nature (i.e. comparatively strong international law), the second and third pillars were
intergovernmental (i.e. traditional international law and, thereby, comparatively week). As a
consequence, they were characterised by different legal instruments and different effects of
the law. This made the system very complex and difficult to understand. It also led to disputes
between the EU’s institutions (e.g. the EC Criminal Law case).16
The Lisbon revision led to a fundamentally different structure of the EU. It abolished
the hitherto traditional pillar structure and in particular the EC, which was integrated into the
EU. Euratom continues to exist. As a result, post-Lisbon the EU can be seen as a planet, with
Euratom circulating around it like a satellite (metaphor according to Tobler/Beglinger).17
These changes also had consequences for the EU’s basic legal texts. First, the former
EC Treaty continues to exist in a revised form and under the new name of the Treaty on the
Functioning of the European Union (TFEU). It exists alongside the (also revised) Treaty on
European Union (TEU)18 and the European Union’s Charter of Fundamental Rights
(Charter).19 Through the Lisbon revision the Charter, which had originally been proclaimed in
2000 as an instrument that was not binding on the Member States, has become a basic legal
text of the EU with the same legal effect as the two Treaties (Art. 6(1) TEU). On a practical
level, both in the TEU and in the TFEU the Lisbon revision led to a renumbering of the
articles. Accordingly, in the practical work with EU law pre- and post-Lisbon numbering
must be distinguished.
Returning to the EU’s former pillar structure, it is important to note that, as a
consequence of the Lisbon revision, the former first pillar, including consumer law, is no
longer called „Community law“ but now „EU law”.20 The former third pillar (criminal law)
was integrated into the TFEU, and more specifically into the part on the „Area of freedom,
security and justice“ (Arts. 67 TFEU et seq.). Through this so-called „Communitarisation“,
this field takes on the character of the former first pillar. As for the former second pillar
(CFSP), post-Lisbon it is the only policy area that is regulated in the TEU, rather than in the
TFEU. It has a special position within the structure of the Treaties and it essentially remains
intergovernmental.
3. Competences of the EU (including in relation to consumer protection)
Through the Lisbon revision, the system regarding the competences had become more
transparent. Before the revision, the EC Treaty referred to “non-exclusive competences of the
16
Case C-176/03 Commission v Council [2005] ECR I-7879 (EC Criminal Law); see the annotation by Christa
Tobler in the Common Market Law Review, 2006, 835-854.
17
Christa Tobler/Jacques Beglinger, Essential EU Law in Charts, Budapest: HVG-Orac 2010, Chart 2/21 et seq.
18
Consolidated versions of the Treaties as they result from the Lisbon revision can be found in the EU’s Official
Journal, OJ 2010 C 83/1 (most recent version).
19
Charter of Fundamental Rights of the European Union (including explanations relating to the interpretation of
the Charter), OJ 2007 C 303/1, OJ 2010 C 83/389 (originally, before being re-enacted: OJ 2000 C 364/1).
20
Though now legislative measures of the European Union and thus technically EU law, Regulations and
Directives adopted in the framework of the EC before the Lisbon revision keep their historical official
numbers and designations, e.g. „Directive 244/113/EC“ (see below, in the section on the case studies).
EU” without defining this term and without listing the relevant competences. To a certain
degree, clarification was brought about through the ECJ‘s case law. For example, the Court21
made it clear that the Common Commercial Policy (CCP, i.e. trade with third countries) was
an exclusive competence of the EU. In other fields, the doctrine of pre-emption applied, i.e.
the Member States loose their competence if and insofar as the EC used its competence.
Following the Lisbon revision, the TFEU explicitly names, describes and lists
different competences (Arts. 2 TFEU et seq.). First, there are exclusive competences of the
EU, with an exhaustive list of the relevant competences. Second, there are shared
competences between the EU and the Member States, for which the Treaty gives examples.
Finally, there are supportive, coordinating and supplementing competences of the EU, again
with an exhaustive list. It should be noted that the Lisbon Treaty introduces very few new
competences (e.g. Art. 195 TFEU on tourism, Art. 196 TFEU on civil protection). They do
not include civil law as an overall category.
As for consumer protection, it is explicitly mentioned as an example of a shared
competence in Art. 4(2)(f) TFEU. The Lisbon Treaty has not brought about any changes
either in relation to the extent of the competence of the EU nor regarding the legislative
procedure that is applicable in this context. Art. 169 TFEU reads:
“1. In order to promote the interests of consumers and to ensure a high level of
consumer protection, the Union 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.
2. The Union shall contribute to the attainment of the objectives referred to in
paragraph 1 through:
(a) measures adopted pursuant to Article 114 in the context of the completion of the
internal market;
(b) measures which support, supplement and monitor the policy pursued by the
Member States.
3. The European Parliament and the Council, acting in accordance with the ordinary
legislative procedure and after consulting the Economic and Social Committee, shall
adopt the measures referred to in paragraph 2(b).
4. Measures adopted pursuant to paragraph 3 shall not prevent any Member State from
maintaining or introducing more stringent protective measures. Such measures must
be compatible with the Treaties. The Commission shall be notified of them.“
It emerges from this provision that the TFEU envisages the adoption of secondary EU
consumer law in different legal contexts: first, such law may be internal market law adopted
on the basis of Art. 114 TFEU. Under this provision, the European Parliament and the
Council shall adopt the measures for the approximation of the provisions laid down by law,
regulation or administrative action in Member States which have as their object the
establishment and functioning of the internal market.
Second, consumer protection legislation may be adopted on the basis of Art. 169(3)
TFEU. In addition and in a broader sense, consumer protection legislation may also be found
in other legal contexts, e.g. transport law or social non-discrimination law. These issues will
be touched upon later in the context of the two case studies.
21
See E.g. Case 41/76 Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République au
tribunal de grande instance de Lille and Director General of Customs [1976] ECR 1921.
However, what will change following the Lisbon revision is the appearance of the
legal basis of measures of secondary law, e.g. the draft Directive on consumer rights.22 If
adopted it will be based on Art. 114 TFEU, instead of on Art. 95 EC.
4. Legislative procedures
The legislative procedure that applies under both Arts. 114 TFEU and Art. 169 TFEU is the
co-decision procedure, post-Lisbon called the ordinary legislative procedure. Under this
procedure, the European Parliament and the Council of Ministers act as co-legislators.
Adoption by the Council requires a qualified majority. Under the pre-Lisbon formula for this
mode of voting, a qualified majority requires a majority of the Member States and a minimum
of 255 of the (weighted) votes of the Member States, plus, if required by a Member State, at
least 62 % of the EU population.
The Lisbon Treaty introduces a new formula, which is to be applied as of 1 November
2014 in principle. Under the new formula, the weighing of votes is abolished. A qualified
majority generally requires: 1) 55 % of the members of the Council, 2) 15 members of the
Council, and 3) 65 % of the population of the EU. In addition, there are new rules on the size
of a blocking minority, which must consists of 4 members of the Council.
5. Changes on the level of the substantive law
The Lisbon revision has not brought about any changes of the substantive Treaty provisions
(in particular on the four freedoms, competition law, and movement and residence of EU
citizens). As before the revision, consumer protection needs to be taken into account in all
areas of EU law and a high level of protection should be aimed at. Before the revision, this
obligation was based on Art. 95(3) EC, which demanded a high level of protection in internal
market legislation adopted based on this provision. Under Art. 153(2) EC, consumer
protection was an overarching task. After the revision, Art. 12 TFEU states that consumer
protection is an overarching task and Art. 114(3) TFEU demands a high level of protection in
internal market legislation adopted based on this provision. This is echoed, in a general
context, in Art. 38 of the Charter of Fundamental Rights.
The Charter of Fundamental Rights was originally (2000) proclaimed as a non-binding
instrument, i.e. the Member States where not bound by it. Nevertheless, it was referred to in
secondary law, e.g. Directive 2004/38/EC23 (movement and residence of EU citizens). Also,
the Court of Justice began to refer to it (e.g. in Mannesmann,24 though it did not apply it), but
not as a main element. Through the Lisbon revision, the Charter was made a binding
instrument. According to Art. 52 of the Charter, both the EU institutions and the Member
States are bound by it, though the latter only „when implementing Union law“ (the meaning
of this is much disputed in academic writing).
The relevance of the Charter should not be underestimated, also in relation to
consumer law. In this context, it should be remembered that all secondary law is based on and
derived from primary law. As a consequence, all secondary law must be in line with primary
law, both on the level of competences and procedure and on the level of substance. Higherranking substantive law includes the Treaties (TEU, TFEU) and the Protocols attached to
them, the Charter of Fundamental Rights and the EU‘s general principles.
22
Proposal for a directive of the Parliament and of the Council on consumer rights, COM(2008) 614 fin.
Directive 2004/38/EC on the right of citizens of the Union and their families members to move and reside
freely within the territory of the Member States, OJ 2004 L 158/77.
24
Case T-112/98 Mannesmannröhren-Werke AG v Commission [2001] ECR II-729.
23
IV. The effect of the Lisbon revision on consumer law: two case studies
Two cases studies shall illustrate the potential meaning of general principles of EU law,
including the human right to equal treatment as expressed in the Charter of Fundamental
Rights, in the field of consumer protection.
1. First case study: rights of air passengers
The first case study concerns the rights of air passengers in the case of long delays and
cancelled flights. Passenger rights are regulated in Regulation 261/2004 establishing common
rules on compensation and assistance to passengers in the event of denied boarding and of
cancellation or long delay of flights.25 This is an issue of consumer protection law, even
though the relevant Regulation is technically transport law.
The basic principles of consumer protection on which the Regulation is based are: 1)
assistance to passengers in the event of delay (Art. ….#) and 2) assistance and, under certain
circumstances, compensation to passengers in the event of cancellation (Art. ….#). It should
be noted that there is a deliberate difference in treatment of the two cases. When submitting
its proposal for the Regulation,26 the Commission considered that the two situations were not
comparable from the point of view of the air companies.
The different treatment just mentioned led to the preliminary ruling case Sturgeon,27
which was decided on 19 November 2009 (i.e. pre-Lisbon). The case concerned a number of
air passengers who suffered very long delays and then brought actions against the air
companies (Condor Flugdienst GmbH and Air France SA, respectively – i.e. both private
companies). The legal issues raised in the case were, first, do such passengers have a right to
compensation, i.e. if the delays are that long, are they legally delays or rather cancellations?
Second, are there extraordinary circumstances that could exonerate the companies?
The Court of Justice began its considerations by recalling two well-known elements of
EU (then: Community) law, namely that, „[a]ccording to a general principle of interpretation,
a Community act must be interpreted, as far as possible, in such a way as not to affect its
validity“28 and that „all Community acts must be interpreted in accordance with primary law
as a whole, including the principle of equal treatment, which requires that comparable
situations must not be treated differently and that different situations must not be treated in
the same way unless such treatment is objectively justified.“29
Applying this, the Court found that from the point of view of the consumers, very long
delays can have the same effect as cancellations, i.e. the two situations are comparable.
Accordingly, different treatment amounts to discrimination. In such cases, the provision of the
Regulation on the rights of passengers of delayed flights must – against its wording - be
interpreted as also including a right to compensation.
25
26
27
Regulation 261/2004/EEC establishing common rules on compensation and assistance to passengers in the
event of denied boarding and of cancellation or long delay of flights, OJ L 46/1.
Proposal for a Regulation of the European Parliament and Council establishing common rules on
compensation and assistance to air passengers in the event of denied boarding and of cancellation or long
delay of flights, COM(2001) 784; Proposal for a Council Regulation amending Regulation (EEC) nr
295/91 establishing common rules for a denied-boarding compensation system in scheduled air transport,
COM(1998) 41.
Joined cases C‑402/07 and C‑432/07 Christopher Sturgeon, Gabriel Sturgeon, Alana Sturgeon v Condor
Flugdienst GmbH (C-402/07), and Stefan Böck, Cornelia Lepuschitz v Air France SA (C-432/07), # ....
28
Sturgeon, para. 47 of the judgment.
29
Sturgeon, para. 48 of the judgment.
Unsurprisingly, the Court‘s judgment led to an outcry in aviation circles, among others
based on the argument that the Court’s case law does not respect the decision made by the EU
legislator.30
2. Second case study: insurance law
The second case study concerns insurance contracts and the treatment of men and women
insurance holders in that context. Under EU law, the provision of insurance is a service.
Directive 2004/113/EC31 deals with the implementation of the principle of equal treatment
between men and women in the access to and supply of goods and services. Again, this can be
seen as type of consumer protection law, even though formally it is non-discrimination law.
The basic principles of consumer protection on which the Directive is based are: 1) as
of 21 December 2007, there must be equal treatment of men and women (Art. 5(1) of the
Directive), though with the possibility of a derogation under national law (in Member States
that did not yet provide for equal treatment) based on actuarial factors (Art. 5(2) of the
Directive) in contexts other than maternity (Art. 5(3) of the Directive). Again, it should be
noted that this is a deliberate difference in treatment. However, this time the difference does
not go back on the Commission but was the result of the lobbying of the private insurance
industry during the legislative process (the derogation was not part of the Commission‘s
proposal for the directive).32
Belgium in a last minute action made use of the possibility to provide for different
treatment, which led to court proceedings in Belgium and then to a preliminary ruling
procedure before the Court of Justice in the Test-Achats case.33 The ruling of the Grand
Chamber dates from 1 March 2011 (i.e. post-Lisbon, though the case originates from before).
The complainants, a Belgian consumer association and two individuals, complained about the
derogation on insurance and actuarial factors. The legal issue raised under EU law by this
case was: is the derogation in line with primary EU (formerly: EC) law, i.e. is it valid in the
light of the principle of equal treatment of men and women? Before the Court of Justice, the
case therefore concerned a preliminary ruling on a question of validity (rather than of
interpretation, as in the Sturgeon case). More specifically, the case raised the question of
whether Art. 5(2) of the Directive is in line with the principle of equal treatment for men and
women (i.e. validity of EU secondary law in the light of EU primary law).
The Court found that it was not. As for the relevant primary law, since recital 4 to
Directive 2004/113 expressly refers Articles 21 and 23 of the Charter, the Court stated that
validity of Article 5(2) of that directive must be assessed in the light of those provisions. Arts.
21 and 23 of the Charter of Fundamental Rights state, respectively, that any discrimination
based on sex is prohibited and that equality between men and women must be ensured in all
areas. (The Court did not refer to Art. 52 of the Charter, perhaps because the action was
30
For academic comments on the Sturgeon case, see e.g. John Balfour, Airline Liability for Delays: The Court of
Justice of the EU Rewrites EC Regulation 261/2004, Air and Space Law 2010 Vol. 35 Issue 1, 71-75;
Kåre Lilleholt, Case: CJEU - Sturgeon and others, European Review of Contract Law 2010 Vol. 6 No. 2,
184-191; Ludger Giesberts/Guido Leve, Compensation for Passengers in the Event of Flight Delays Interpretation of the Air Passenger Rights Regulation after the European Court of Justice Judgment of 19
November 2009, Air and Space Law 2010, 293-304.
31
Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access
to and supply of goods and services, OJ 2004 L 373/37.
32
Proposal for a Council Directive implementing the principle of equal treatment between women and men in
the access to and supply of goods and services, COM(2003) 657.
33
Case C-236/09 Association belge des Consommateurs Test-Achats, judgment of a Grand Chamber of the Court
of Justice of 1 March 2011, not yet reported.
brought before 1 December 2009.) The Court further recalled the meaning of legal equality:
under EU law, “the principle of equal treatment requires that comparable situations must not
be treated differently, and different situations must not be treated in the same way, unless
such treatment is objectively justified.”34 According to the Court, it follows from the
Directive that it considers men and women as being in comparable situations as far as
insurance is concerned. However, given the general legal and factual context, it was
acceptable to introduce legal equality step by step rather; i.e. there may be a derogation,
though not for an infinite time, as is made possible under the Directive. The Court’s final
finding was that Art. 5(2) of Directive 2004/113 is invalid with effect as of 21 December
2012.
As did Sturgeon in the air transport industry, Test Achats led to an outcry in insurance
circles. Again, one of the complaints was that the Court does not respect the respect the EU
legislator. Further, it is argued that the Court disregards obvious differences between the
sexes.35
3. Findings based on the case studies
Both Sturgeon and Test-Achats led to spectacular judgments by the Court of Justice in which
the Court acted as a constitutional court. In the context of consumer protection, the two cases
illustrate how primary law can heavily influence the meaning and even the content of existing
secondary law. More specifically, Test-Achats illustrates the importance of the Charter of
Fundamental Rights in this context. While Test-Achats concerned action by an EU institution
(i.e. the Council of Ministers as the legislator that adopted Directive 2004/113), since the
Lisbon revision the Charter has also been an instrument that is binding on the EU Member
States. In this way the Lisbon revision has increased the importance of primary law for
consumer law (and civil law more generally). Accordingly, there is an ever-increasing need
that lawyers specialising in a given area of EU secondary law, such as consumer law, must
also know about EU primary law and about the relationship between these two levels of law.
34
35
Test-Achats, para. 28.
For academic comments on the Test-Achats case, see e.g. the case note by Christa Tobler in the Common
Market Law Review, forthcoming.