The Treaty of Maastricht
With the entry into force of the Treaty of Maastricht in 1993, a stronger commitment beyond market goals became apparent in the EU, made manifest by the insertion in the Treaty of explicit consumer protection objectives and new citizenship rights. Article 3(s) of the European Community (EC) Treaty stated that ‘a contribution to the strengthening of consumer protection’ should be part of the activities of the Community.
Furthermore, the Treaty added, for the first time, a formal competence for the European Community to legislate on consumer issues. According to Article 129(a)(1) EC, the ‘Community shall contribute to the attainment of a high level of consumer protection’. In this context, the Community could either adopt measures pursuant to Article 100(a) EC to facilitate the completion of the internal market (Article 129(a)(1)(a) EC), or take a ‘specific action which supports and supplements the policy pursued by the Member States to protect the health, safety and economic interests of consumers and to provide adequate information’ (Article 129(a)(1)(b) EC). Such a formal legal basis was important because the Community was only empowered to act according to Article 3(b)(1) EC, within the limits of the competences provided by the Treaty.
The Community could now officially intervene according to Article 129(a) (1)(b) EC to improve consumer protection, independently from measures taken in connection with the internal market. Practice revealed, however, the relatively low significance of the new legal basis for the development of consumer law. Only in rare cases have specific actions been based on Article 129(a)(1)(b) EC, such as Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers. The majority of directives continued instead to be adopted on the basis of the ‘market integration’ provision (Article 100(a) EC). As we will see later in this book, even after the Lisbon Treaty, consumer measures often still refer back to internal market justifications for harmonization directives.
Another important effect of the Maastricht Treaty was the institutionalization of a minimum-harmonization approach for specific Community actions. Article 129(a)(3) EC stated that actions adopted to support and supplement national policies according to Article 129(a)(1)(b) EC do not prevent Member States from maintaining or introducing more stringent protective measures. However, these consumer measures had to be compatible with the Treaty, and the Member States were obliged to notify the Commission of them.
Consumer policy was also influenced by Article 3(b)(2) EC, which formally introduced the subsidiarity principle by stating that in areas of shared competence ‘the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can (. . .) be better achieved by the Community’. This principle aimed to clarify the division of competences and to control the increase in the Community’s harmonization measures, because it gradually restrained the powers of the Member States.
However, the vagueness of this principle left considerable room for interpretation on the determination of an adequate level of Community action, generating a level of legal insecurity. However, as noted by Weatherill, eventually this principle had rather little effect on consumer law, as the EU continued to adopt consumer measures upon the basis of Article 100(a) EC in the context of the completion of the internal market.
Besides the general modifications introduced by the Maastricht Treaty, the ECJ also showed a change of direction in its case law. In Keck and Mithouard the Court had to decide on the legality under EC law of a French law prohibiting the resale of products at a loss. The Court clarified and refined its earlier case-law by stating that national provisions restricting certain selling arrangements were not such as to hinder trade between Member States, on the condition that ‘those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States’. As an effect of this judgment, Member States gained, under specific conditions, a greater degree of autonomy to adopt and maintain national measures.
Yet, although Member States had, to a certain extent, gained more freedom, their discretionary power remained restricted, as highlighted in Clinique. This case concerned the question whether a prohibition could be imposed in Germany on the importation and marketing of a cosmetic cream named ‘Clinique’, on the basis that this product name may mislead consumers into believing that it had medicinal properties. The ECJ considered that such a prohibition was not required to protect consumers, because the medical connotations of the product name were not sufficient to mislead consumers. In particular, the product was not presented as a medicinal product and a comparison in other countries showed that consumers had not been misled by such a name. Therefore, the Court decided that a prohibition to import and market the cosmetic product in the German market, because of its name, was not justified.
In more recent case law the ECJ has further defined the consumer notion and has paid increased attention to national approaches to consumer protection. On the one hand, the ECJ has often held that it is necessary to take into account the presumed expectations of an ‘average consumer’, who is ‘reasonably well informed and reasonably observant and circumspect’. On the other, in some cases, the ECJ has attached particular importance to even rather subtle differences between Member States. For instance, in Estee Lauder v Lancaster, the ECJ stated that ‘it must be determined whether social, cultural or linguistic factors’ may justify a different national concept of a product, and hence a particular consumer protection level. In this case, the ECJ maintained that a particular, national ‘understanding’ of a cosmetic advertisement and social interest can justify a specific local protection of the consumer.
In conclusion, the Treaty of Maastricht constituted an important milestone because it conferred a legal competence to the EU in consumer protection. However, in practice, this changed little in legislative terms, because the EU continued to adopt consumer directives under Article 100(a) EC, which required a market-making objective.
-  J.H.H. Weiler, ‘To be a European Citizen, Eros and Civilization’ , in J.H.H. Weiler, The Constitution of Europe, Do the New Clothes Have an Emperor? and other Essays on European Integration(Cambridge: CUP, 1999), p. 332.
-  Micklitz & Weatherill, ‘Consumer Policy in the European Community’ (n 75), p. 298.
-  Stuyck (n 31), p. 380.
-  Directive 98/6/EC of 16 February 1998, OJ 1998 L 80/27.
-  See also T. Bourgoignie, ‘European Community Consumer Law and Policy: from Rome toAmsterdam’, (1998), Consumer L. J., pp. 4-43-62, at 4-47.
-  See e.g. subsection 4.4. of this chapter.
-  Micklitz & Weatherill (n 75), p. 300.
-  Weatherill (n 47), p. 19; for a general analysis see L. Grard, ‘La subsidiarite et le droit com- munautaire de la consommation’, in D. Fasquelle & P. Meunier (eds), Le droit de la consommation: bilan et perspectives (Paris: documentation fran?aise, coll. CEDECE, 2002), p. 147.
-  Weatherill (n 47), pp. 20-3.
-  Cases C-267/91 and C-268/91, Keck and Mithouard  ECR I-6093.
-  Cases C-267/91 and C-268/91, Keck and Mithouard  ECR I-6093, para. 16; see a detailedanalysis of the case law that followed in Unberath & Johnston, ‘The Double-Headed Approach ofthe ECJ Concerning Consumer Protection’ (n 56), pp. 1245-48.
-  Case C-315/92, Verbandsozialer Wettbewerb v Clinique ECR I-317.
-  See e.g. Case C-210/96, Gut SpringenheideandTusky  ECR I-4657, para. 31; for a criticalview of the notion of the average consumer, see Incardona & Poncibo, ‘The Average Consumer, theUnfair Commercial Practices Directive, and the Cognitive Revolution’ (n 42), pp. 21-38.
-  Case C-220/98, Estee Lauder Cosmetics GmbH & Co. OHG v Lancaster Group GmbH ECR I-117, para. 27.
-  Case C-220/98, Estee Lauder Cosmetics GmbH & Co. OHG v Lancaster Group GmbH ECR I-117, para. 29.