Brussels, 30/09/2009 (Agence Europe) - The subject of a public hearing during the previous European Parliament, the October 2008 draft directive on consumer rights on contract law for remote and outlet sales (see EUROPE 9757) has again come under expert scrutiny, being examined on Tuesday 29 September 2009 at a new public hearing organised by the European Parliament's Internal Market and Consumer Protection Committee, chaired by Malcolm Harbour (ECR, United Kingdom). The MEPs got their teeth into the issues surrounding this complex legislation that has been roundly criticised for its scope of application and the level of harmonisation desired by the Commission. There are strong fears that total harmonisation would lead to a levelling down of consumer rights as already guaranteed in some Member States. Reaction was contradictory, ranging between a call for minimum legislation, maximum legislation and a fresh start. It emerged that mixed degrees of harmonisation might be the middle road (full harmonisation for definitions, duties and withdrawal timelines and minimum harmonisation for remedies for breaking the contract, failure to comply and abusive clauses), which is the line taken by the working group set up at the Council, the European Economic and Social Committee and some national parliaments, commented Anders Dölling, who advises the Luxembourg consumers' union on EU affairs.
Opening the hearing, Malcolm Harbour thanked the Commission for trying to introduce greater clarity by providing MEPs with two additional working documents - a document explaining the scope of application, and a non-exhaustive table comparing the draft directive with consumers' rights in law in the various Member States.
Andreas Schwab (EPP, Germany), the EP's rapporteur on the draft directive, who hopes to publish a working document on the public hearing before the end of October, said he would do all he could to help ensure this important issue is a success, without caving in to time pressures. He said the point of the debate was to strike a balance between a good supply of products at the best price for consumers, a good level of consumer protection and cutting the cost of legal advice for SMEs. Consumer law is currently governed by 27 separate legal systems in the EU. By reforming and harmonising the rules, the European Commission wants to encourage EU-wide remote sales, explained the rapporteur, adding that the problem was whether Europe was actually ready for this.
Speaking on behalf of the European Commission, Paola Testori Coggi, Deputy Director General at DG SANCO, said that only full harmonisation of consumer rights could create and island of legal certainly amidst a sea of uncertainty. The three problems the Commission is prepared to resolve with the EP and the Council are: 1) the scope of application: Clarification is required over how the EU rules will mesh with national rules; 2) consumer compensation and guarantees for defective products - a full harmonisation clause is needed to cover compensation without affecting consumer rights under national legislation and possibly adding the right of consumers to reject the product (as found in the United Kingdom) and a hidden defect guarantee (as found in France and Belgium). These issues are being discussed by the Council's working group; 3) abusive clauses: blacklists of abusive clauses need to be amended, explained Testori Coggi, but this would not affect the intervention of national legal systems because the Member States would be left autonomy in this area. German law professor Hans Schulte-Noelke said the directive was not very clear over general contract law and it raised questions about the degree of protection guaranteed in the Member States (like consumers' right to choose to have a product repaired or replaced), and the definitions of consumers and operators are unclear. Deputy director general of BusinessEurope, Carlos Almaraz, said he favoured a fully harmonised legal framework but called for clarification about the scope of application, for consumer duties to be added (the duty to react diligently) and a softening of certain measures deemed to be too harsh on manufacturers (like extending the delivery deadlines and taking account of force majeure for certain delays). There should also be clarification about how this directive would interact with the Services Directive and the e-commerce directive, the idea of mixed contracts should be spelt out (both goods and services) and it should be made clear whether services will be covered by the new directive. Pierre Chalançon, vice president of German industrial company Vorwerk&CO KG, which sells directly to the consumer in 23 different Member States, explained that in his industry, full harmonisation was the best way forward because it would act in an upward direction and improve consumer rights rather than watering them down, whether in terms of timelines for changing one's mind, the guarantee period or making the manufacturer responsible for proving that the product was not defective at the time of delivery). Monique Goyens, BEUC director general (the European Consumer Union), totally disagreed, saying that this major item of EU legislation would have a limited impact and set new upper limit for consumer protection. She said that BEUC was not taking a dogmatic approach but wanted an acceptable and very high level of protection, but the draft directive did not provide an acceptable level of protection despite not leading to full harmonisation. (A.N. trans fl)