The full-harmonization trend

The full-harmonization trend was initiated by the Consumer Policy Strategy 2002-2006, which stated the objective to progressively adapt existing consumer directives from minimum-harmonization to full-harmonization measures.[1] The Distance Marketing of Consumer Financial Services Directive,[2] issued in 2002, was the first measure adopting the maximum- harmonization principle, and was followed by the Unfair Commercial Practices Directive in 2005.[3] The EU Consumer Policy Strategy 2007-2013 then reaffirmed the intentions of its 2002-2006 predecessor, stating that ‘if legislative proposals are identified as the appropriate response, targeted full harmonization of consumer protection rules at an appropriately high level will tend to be the Commission’s approach’.[4] The Consumer Credit Agreement Directive of 2008[5] and the Timeshare Directive of 2009[6] followed this approach, further reflecting the paradigm shift from minimum to full harmonization. More recently, on 8 October 2008, the European Commission adopted a controversial proposal for a directive on consumer rights, which intended to fully harmonize various directives on contract law.[7] [8] [9] The resulting draft directive revised and merged four existing EU consumer directives—Unfair Contract Terms,1 24 Sales and Guarantees, 1 25 Distance Selling,[10] and Doorstep Selling[11]—into one single instrument. While the original directives followed the principle of minimum harmonization, the new draft directive on consumer rights proposes a fully targeted harmonization.[12] Directive 2011/83/EU on consumer rights was eventually adopted in November 2011,[13] applying a full-harmonization approach. It is, however, smaller in scope than originally proposed, as it only replaces two legislative acts: Directive 97/7/EC on the protection of consumers in respect of distance contracts, and Directive 85/577/EEC, which protects consumers in contracts negotiated away from business premises.[14] The new directive fully harmonizes key provisions on distance contracts, including pre-contractual information and rights of withdrawal. Here too, full harmonization is explicit: Article 4 stipulates that ‘Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this directive, including more or less stringent provisions to ensure a different level of consumer protection’.

The main argument in favour of full harmonization is that it fosters economic integration and promotes the consumers’ interest in cross-border purchases. Common rules can encourage companies to access cross-border markets, which may result in greater competition and ultimately reduce prices and broaden the choice of products and services.

Full harmonization though, and especially the idea that this is the best way to strengthen consumers’ confidence in the market, as they would only face one set of standards, has been critically questioned by scholars.[15] On the one hand, harmonized rules do not automatically result in consumer confidence to undertake cross-border purchases. The importance of harmonization in itself to boost cross-border purchases may be smaller than assumed at first sight. Consumers may prefer to continue to shop within their country, owing to commercial customs, language, and the convenience of shopping at a well-known local seller.

On the other hand, it is not clear to what extent the potential financial gains would compensate for the fact that protection standards were lowered in some Member States. From the perspective ofconsumer protection, minimum harmonization offered security in the event that EU laws did not provide a sufficiently high level of protection. Minimum harmonization also drew a demarcation line of competences which left ample room for Member States to provide more stringent protection for national consumers, if they wished to do so.

The following subsection analyses the impact of the full-harmonization interpretation of directives taken by the ECJ on national consumer protection frameworks.

  • [1] Communication from the Commission of7 May 2002—‘Consumer Policy Strategy 2000-2006’,COM (2002) 208 final—OJ 2002 C137/2.
  • [2] Directive 2002/65/EC of 9 October 2002, OJ 2002, L 271/16.
  • [3] Directive 2005/29/EC of 11 June 2005 concerning unfair commercial practices in the internal market, OJ L 149/22.
  • [4] EU Consumer Policy Strategy 2007-2013, COM(2007), 13.3.2007 (OJ C 279/E).
  • [5] Directive 2008/48/EC of2008 on credit agreements for consumers, OJ 2008 L 122/66.
  • [6] Directive 2008/122/EC of2009 on certain aspects of timeshare and long-term holiday products, 2009 OJ L 33/10.
  • [7] Proposal for a Directive on Consumer Rights, COM(2008) 614 final, 2008/0196 (COD) (2008) ; see also the 2003 Action Plan on a more coherent European contract law COM(2003) 68final OJ 2003, C 63/01 and Green Paper on the Review of the Consumer Acquis, Brussels, COM(2006) 744 final.
  • [8] Directive 93/13/EEC of 21 April 1993 on unfair terms in consumer contracts, OJ L 95/29.
  • [9] Directive 1999/44/EC of 7 July 1999 on sale of consumer goods, OJ L 171/12.
  • [10] Directive 97/7/EC of 4 June 1997 on consumer protection regarding distance contracts, OJL 144/19.
  • [11] Directive 85/577/EEC of 31 December 1985 to protect consumers in respect of contractsnegotiated away from business premises, OJ L 372/31.
  • [12] For a critical assessment, see M. Loos, ‘Consumer Sales Law in the Proposal for a ConsumerRights Directive’, (2000) 1 Eur. Rev. Private Law, pp. 15-55; H.-W. Micklitz & N. Reich, ‘Cronicade una Muerte Anunciada: The Commission Proposal for a “Directive on Consumer Rights” ’ 1 (2009) 46 CML Rev., pp. 471-519.
  • [13] Directive 2011/83/EU of 25 October 2011 on consumer rights, amending Council Directive93/13/EEC and Directive 1999/44/EC and repealing Council Directive 85/577/EEC andDirective 97/7/EC OJ L 304/64, 22.11.2011.
  • [14] In contrast, Directive 1999/44/EC on certain aspects of the sale of consumer goods andassociated guarantees as well as Directive 93/13/EEC on unfair terms in consumer contractsremain in force.
  • [15] Micklitz & Reich, ‘Cronica de una Muerte Anunciada’ (n 128), pp. 471-519; Weatherill (n103), pp. 155-6; for a new understanding of full harmonization, see V. Mak, ‘Full Harmonization inEuropean Private Law: A Two-Track Concept’, (2012) 1 Eur. Rev. Private Law, pp. 213-36.
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