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  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  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  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  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.