The European Commission could consider additional and drastic measures if directive 2019/2161 on the modernisation of consumer protection rules does not deliver the expected results, especially against ‘dual quality of goods’, a senior Commission official assured MEPs in the Internal Market and Consumer Protection Committee (IMCO) on Thursday 28 October.
“We the European Commission, we are really confident that this provision is the right approach and that it can work”, Blanca Rodriguez Galindo, head of unit for consumer and marketing law in the European Commission’s Directorate-General for Justice and Consumers (DG JUST), told MEPs.
“But if it’s not the case, we are committed to reporting on this Directive by May 2024 and then proposing, if necessary, other ways to address this situation of ‘dual quality’, including banning and blacklisting under the Unfair Commercial Practices Directive”, she added.
The announcement did not enthuse the representatives of the economic sector, in particular the retail sector, such as Fabian Fechner, deputy head of the Brussels office of the ‘Handelsverband Deutschland’, the German retail federation.
“I would be cautious on the question whether there should be an absolute ban by a blacklist as Ms Rodrigues said, because this is a very complex issue and there are justified, objective factors why product composition can be different”, the representative of the German Federation replied. In his view, the possibility in the Directive of providing objective justifications for the justification of a differentiation in product quality is not compatible with such a ban.
A directive that can be improved
Many consumer organisations present at the hearing and MEPs from all political persuasions criticised the shortcomings of the legislation, in particular the possibility for manufacturers to justify their practice of differentiation on the grounds that it is necessary to adapt to the tastes of citizens in a given region. This possibility is a loophole in the eyes of several speakers, such as David Cormand (Greens/EFA, France) or Biljana Borzan (S&D, Croatia).
In particular, the latter indicated that the justification of consumer habits and tastes for product adaptation could not be valid for non-food products. Yet, according to the MEP, there are also significant differences between European regions for some soaps and detergents. Others were generally concerned about the lack of legal certainty of the concept of ‘dual quality’ allowing for differences in interpretation among Member States.
Others criticised the methodology of the European Commission’s Joint Research Centre, which published a study on the subject based solely on an analysis of the ingredients listed by manufacturers on the packaging and not on a laboratory analysis of the composition of the product.
Ms Rodriguez Galindo assured that the Commission was doing everything possible to improve the situation. The institution is expected to publish new guidelines on unfair practices by the end of the year, she said.
After tough negotiations, the co-legislators adopted a revision of the Consumer Protection Directive in April 2019 (see EUROPE 12238/16). The Directive included provisions to combat dual quality of goods.
Most importantly, the text includes, among other things, a review clause obliging the Commission to assess the situation within 2 years of transposition in order to determine whether ‘dual quality’ of goods should be added to the blacklist of unfair commercial practices.
The deadline for transposition of the Directive is 28 November and many Member States have not yet fully notified the transposition of the Directive, according to several stakeholders. (Original version in French by Pascal Hansens)