Harmonisation tendencies in European Consumer Law

• Authors: Kunkiel-Kryńska Aleksandra
• Languages of publication: PL

Abstracts

EN

The aim of this article is to examine the ongoing process of harmonisation of consumer law in the European Union and a trend away from minimum harmonisation in consumer law towards full (complete, maximum) harmonisation. First of all, two important observations need to be made regarding a general concept of harmonisation in the EU and its main instruments i.e. directives regulated by Article 288 of the Treaty. Harmonisation of law is the finishing touch for the completion of the internal market of the EU after the directly applicable provisions of the Treaty regulating the four freedoms have done their work. Directives are the most important legislative instrument alongside regulations. They are based on different harmonisation methods e.g. minimum or full harmonisation. Theirs purpose is to reconcile the dual objectives: securing the necessary uniformity of EU law and respecting the diversity of national legal orders, traditions and structures. A directive is binding on the Member States as regards the objective to be achieved. The result is generally a two-stage law-making process, including implementation at the national level. It is of prime importance that in the field of consumer protection, the EU followed for a long time a minimum harmonisation approach and directives were based on this particular method of harmonisation. Over the last years, the EU policy on consumer protection has shifted from minimum to full harmonisation. Whereas minimum harmonisation allows Member States to adopt more protective rules, full harmonisation does not allow Member States to deviate from directives at all. This way, full harmonisation should guarantee that one uniform set of rules applies in the whole EU. In theory, this should contribute to legal certainty for both consumers and businesses. However, in practice, this is undoubtedly controversial. In light of the above, it should be stressed that the EU legislator wants to create a common consumer law for Europe. Admittedly the superficial appeal of full harmonisation from an internal market perspective is clear. One set of rules for traders, which grants access to the entire internal market of 27 states, is obviously appealing. However, this goal is illusory. Certain problems arise, to name a few: the EU's competence to legislate in the field of consumer policy or concrete evidence that full harmonisation is required to deliver the real internal market. What is more, while in some areas the need for full harmonisation is self-evident, for example, as regards product specifications, it is harder to see why private law rules – including consumer law - need to be fully harmonised. In the field of private law there is a much stronger tendency towards flexible thinking and a search for adaptability. Therefore it is hard to justify a full harmonisation approach to flexible and consistent national contract law orders. Last but not least, full harmonisation directives give rise to serious implementation problems at the national level, both in terms of transposition and applying transposition measures by national authorities, mainly courts. National courts – as European courts – ensure the correct application and observance of EU law. Taking the above into consideration, there is a tension between the aim of full harmonisation (uniformity) and interpretation of various general (undefined concepts) used in full harmonisation directives. In particular, there is a risk of divergent national interpretations. To sum up, over the last years the EU consumer protection policy has shifted from minimum harmonisation towards full harmonisation, which is supposed to reduce barriers in the internal market. However, it should be pointed out that there are some objection to the restrictive full harmonisation approach. Legal doctrine indicates certain problems i.e. full harmonisation directives give rise to serious implementation problems at the national level and cause risk of decomposition of national legal orders. Therefore the European Commission is now advocating a milder approach based on “targeted” full harmonisation - more selective, practical, less disturbing to the national legal orders.

Keywords

EN

harmonisation; consumer law; EU law; consumer protection

• Publisher: Instytut Nauk Prawnych PAN / Institute of Legal Studies PAN
• Journal: Studia Prawnicze
• Year: 2012
• Issue: 2 (191)
• Pages: 67-102

Contributors

author

Kunkiel-Kryńska Aleksandra

• Warszawa, Poland