Brussels, 23/06/2010 (Agence Europe) -Work is being stepped up at the European Parliament on the draft directive of October 2008 on consumer rights. This is proving to be a real headache, but which could perhaps be resolved by way of mixed harmonisation. This appears to be the opinion the majority at the European Parliament are moving towards, rather than maximum harmonisation, as initially proposed by the European Commission (before Vice-President Viviane Reding said that she was in favour of targeted maximum harmonisation and which has subsequently allowed for a small breakthrough to be made in the discussions at the Council - EUROPE 10146).
On Thursday 24 June, Andreas Schwab (EPP, Germany), the rapporteur on this dossier will present the second part of his report to the EP internal market and consumer protection committee, which tackles some the most difficult issues, as well as the remedies, for compensation and guaranteed deadlines in the event of product non-compliance (chapters IV - VI in the draft directive).
Schwab is a supporter of maximum harmonisation but is also aware of the determination of member states to protect what they consider as advantages in their respective national legislation. It is therefore the issue of flexibility that is urging the rapporteur to advocate a mixed approach, with its subsequent benefits to consumers. In other words, Schwab, will make a symbolic gesture to supporters of minimum harmonisation (the group of Social Democrats and consumer organisations such as BEUC, defenders of this approach, which will enable the EU27 to go further than the text contained in the future directive and swiftly adapt to changes on the markets).
In the context of the three most controversial solutions for non-delivery of goods and compensation in the event of non-compliance or unfair contractual clauses, Andreas Schwab would like to leave it up to member states to decide on whether to maintain their national provisions (the principle of minimal harmonisation), as long as these are necessary, proportional and efficient and that member states justify this efficiency “as a point of view in both commercial and legal practice”.
France, for example, is particularly keen on preserving its system applied to hidden defects, which enables consumers to invoke hidden defects beyond the two-year legal guarantee contained in the draft directive on unfair terms of contract - the rapporteur does not have a problem with this deadline. Schwab, however, is not sure that this actually represents an advantage to consumers if they have to provide proof of the hidden defect at the time of purchase and which can turn into a real assault course in terms of the procedure consumers have to go through.
With regard to the terms of contract, his report includes the black list of nine clauses that are now considered unfair in current legislation in force, as well as the grey list, which sets out a non-exhaustive list of contractual clauses that could be unfair but which explains that member states will now be able to maintain their own national law and introduce additional clauses in an effort to ensure that the internal market operates appropriately and prevents any distortion to competition in the EU ( reference is made to C-64/09, paragraph 35 of the European Court of Justice)
In the flexible approach being advocated, member states would be obliged to notify the European Commission of any of the specificities contained in their national law. Member states are also being urged to provide a mutual assessment of the efficiency of their measures, by way of peer assessment, based on what was put in place under the so-called “Bolkestein Services Directive”. The report established by the Commission and discussed at the Council would oblige member states to ask themselves a number of appropriate questions: do they want an optimal system or is it better to implement harmonisation in an effort to ensure fair competition conditions for all? According to the rapporteur, the only viable solution is to bring the different parties of the Council closer together and to provide a clearer explanation of the advantages contained in the different national laws to consumers.
After the presentation of the Schwab report on Thursday to members of the leading Parliamentary committee (the EP's legal committee will also give its opinion), it will be possible to submit amendments over a three-month period. The committee vote is expected to take place in October. The future Belgian Presidency begins on 1 July and is determined to finalise this text during its mandate at the head of the Council. (A.N./transl.fl)