The Lisbon Treaty

The Lisbon Treaty was signed in 2007 and entered into force on 1 December 2009 to reform the foundations of the European Union following the two waves of enlargement. It replaced the draft Constitutional Treaty,[1] which was rejected in 2005, and amended the Treaty on European Union (TEU) and the Treaty establishing the European Community, renaming the latter, Treaty on the Functioning of the European Union (TFEU).[2] The Lisbon Treaty introduced structural and institutional changes and strengthend the role of fundamental rights.[3] While some Treaty provisions bring modest substantive innovation, others may influence consumer protection in new ways, in particular regarding regulatory participation, access to justice, and fundamental rights protection. A number of key aspects of the Lisbon Treaty which are relevant to consumer protection are described here, whereas broader changes will be considered in more detail in the following chapters.

Since the Lisbon Treaty reforms, the division of competences between the European Union and Member States has become to a certain extent more transparent. The TFEU sets out three main categories of competences: exclusive, shared, and supporting competences (Articles 2 to 6 TFEU). Furthermore, it contains a non-exhaustive description of the areas covered by each category, including consumer protection as a shared competence between the EU and Member States (Article 4(2)(f) TFEU). According to Article 2(2) TFEU this means that both the EU and the Member States are authorized to adopt legally binding acts in that area. However, the Member States may only exercise their competences provided that the EU has not exercised its competence or has decided to cease exercising them.[4] In addition, Article 5 TEU sets out three fundamental principles applicable to the exercise of EU competences. According to the principle of conferral: ‘the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’ (Article 5(2)). All other competences remain with the Member States. Pursuant to the principle of subsidiarity, for shared competences, ‘the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States ( . . . )’(Article 5(3)). Finally, under the principle of proportionality ‘the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’ (Article 5(4)).[5] These provisions are more detailed than pre-Lisbon and intend to clarify the distribution of competences, which has been relatively vague and contentious in the past.[6] While they do not involve any notable transfer of competence and still leave scope for interpretative questions, they provide some guidance, potentially contributing to an easier control and exercise of these competences.

Furthermore, the Treaty states for the first time in the field of health protection in Article 168(c) TFEU (ex Article 152 EC) that the EU can adopt measures setting high standards of quality and safety for medicinal products and devices. While this provision primarily concerns health protection measures, it is arguably also essential for consumer safety, to protect them from hazardous drugs and harmful medical devices.

Another set of Treaty provisions expressly mentioning consumer protection do not, at first sight, seem to bring major substantive innovations. Nonetheless a change in the placement of the consumer protection provision in the Treaty and its recognition in the binding Charter may entail a distinct qualitative improvement. Article 12 TFEU, as under the pre-Lisbon provision (ex Article 153(2) EC), states that ‘Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities’. However, in contrast with the earlier version, this provision now appears at the beginning of the Treaty under Title II together with other ‘provisions having general application’, which might improve the visibility of this objective. In addition, Article 38 of the Charter of Fundamental Rights provides further support in this regard as it stipulates that Union policies shall ensure a high level of consumer protection.

The inclusion of consumer protection in such a list of transversal provisions and in the Charter may facilitate the systematic consideration of this objective before an EU measure is adopted and possibly contributes to a more consistent integration of consumer interests within different EU policy fields. Such integration is already most evident in specific areas of competition policy,[7] where consumer interests are applied as the ultimate standard to assess whether the practice of a dominant undertaking is legitimate under competition law.[8] For example, a dominant market position of a business may be accepted if the overall balance in terms of consumer interests is positive.[9]

A core provision of consumer protection comes under Title XV and its Article 169(1) TFEU and remained substantially unchanged, besides the renumbering. It states, like Article 153 EC previously, that the Community has the power to ‘contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests’. Article 169(2) TFEU then specifies that these goals can be achieved either by ‘(a) measures adopted pursuant to Article 114 TFEU in the context of the completion of the internal market’; or ‘(b) measures which support, supplement and monitor the policy pursued by the Member States’.[10] Here no modification in wording or strategy is apparent. The term ‘supplement’ national policies provides the Commission, in theory, with the opportunity to create new consumer provisions that protect consumers per se, without the need for a market-integration justification, provided that Member States have already acted in this field.[11] However, as explored earlier in this chapter, in practice, Community legislation in relation to consumer protection has been based almost exclusively upon Article 169(2)(a) and Article 114 TFEU (ex Article 95 EC), which continues to be the case.[12] Although Article 114(3) TFEU requires that a directive has to comply with a high level of consumer protection, the main requirement remains that of promoting economic efficiency. This harmonization approach based on market-focused rationales is problematic, owing to potential tensions between economic efficiency objectives and consumer protection per se in some areas, and may lead to a lowering of standards in specific countries.[13] This requires an open debate and new strategies on how consumer protection can be promoted when it pursues broader objectives, for instance of a social nature, that may be unrelated to, or clash with, market-integration goals.

Later on, we will examine in more depth the issue of whether the Lisbon Treaty, along with the Charter of Fundamental Rights, may contribute to a more comprehensive form of consumer protection. For now, we anticipate that the Treaty will strengthen the role of fundamental rights, with important implications for the discussion in the following chapters. Article 6(1) TEU states that the EU ‘recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights’. More importantly this provision also expressly stipulates that the Charter ‘shall have the same legal value as the Treaties’.[14] Therefore, with the adoption of the Treaty of Lisbon, the Charter has now become legally binding for EU institutions and for most Member States applying EU law, acquiring an equal status with EU Treaties.[15] At the same time, the Charter is not designed to extend the competence of the EU as circumscribed in the Treaties (Article 6(1) TEU). Another significant innovation in terms of human rights is provided by Article 6(2) TEU, which stipulates that the EU shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, without affecting the Union’s competences established in the Treaties. The wider implication of the Charter of Fundamental Rights and of the Lisbon Treaty for consumer law will be assessed in the following chapters.[16]

  • [1] The Lisbon Treaty contains a modified part of the rejected draft Constitution; see P. Craig,The Lisbon Treaty, Law Politics and Treaty Reform (Oxford: OUP, 2010).
  • [2] Consolidated versions of the Treaty on European Union and the Treaty on the Functioningof the European Union, OJ C 83,30.3.2010.
  • [3] For a comprehensive legal analysis of the Lisbon Treaty see Craig, The Lisbon Treaty, LawPolitics and Treaty Reform (n 165); A. Biondi, P. Eeckhout, & S. Ripley (eds), EU Law after Lisbon(Oxford: OUP, 2012).
  • [4] Protocol No. 25 to the Lisbon Treaty further defines the exercise of shared competences, bystipulating that when the Union has taken action, ‘the scope of this exercise of competence onlycovers those elements governed by the Union act in question’. Therefore, it does not cover thewhole area, leaving the possibility for Member States to intervene.
  • [5] Protocol no. 2 provides more details on the application of the principles of subsidiarity and proportionality in the Lisbon Treaty; see also the description at: .
  • [6] For a detailed analysis, see S. Weatherill, ‘The Limits of Legislative Harmonization Ten Yearsafter Tobacco Advertising: How the Court’s Case Law has become a “Drafting Guide” ’, (2011) 12(3)German L. J., pp. 827 et seq.
  • [7] See also the recent case by the General Court in T-224/10, Association beige des consommateurstest-achatsASBL v European Commission 12 October 2011, not yet reported, paras 43-4.
  • [8] Article 102 TFEU (ex Art. 82 EC).
  • [9] European Commission, ‘Antitrust: Consumer Welfare at the Heart of the Commission Fightagainst Abuses by Dominant Undertakings’, in IP/08/1877, 03/12/2008. The guidance paper onArt. 82 sets out the Commission’s determination to prioritize cases where the exclusionary conductof a dominant undertaking is liable to have harmful effects on consumers.
  • [10] In addition, Art. 169(3) TFEU repeats the provision already existent in the previous Treatiesthat measures adopted under para. 2(b) should not prevent Member States introducing more stringent protective measures.
  • [11] Stuyck (n 31), p. 387.
  • [12] See e.g. the recent 2011 legislative proposals on consumer ADR and ODR, which are basedon Art. 114 TFEU described in ch. 7 of this book.
  • [13] C.U. Schmid, ‘The Instrumentalist Conception of the Acquis Communautaire in ConsumerLaw and its Implications on a European Contract Law Code’, (2005) 2(1) Eur. Rev. Contract Law, pp. 211—27; for a general assessment of harmonization in private law, see W van Gerven, ‘Harmonizationof Private law: Do we Need it?’ , (2004) 41 CML Rev., p. 505; S. Weatherill, ‘Why Object to theHarmonization of Private Law by the EC?’, (2002) 39 CML Rev., p. 12; Weatherill (n 103).
  • [14] For the online version of the Treaty of Lisbon, see the Council website: .
  • [15] Poland and the UK opted out of the Charter; see also the opt-out Protocol on the applicationof the Charter of Fundamental Rights to Poland and the UK, OJ 9.5.2008 C 115/313-14.
  • [16] See in particular ch. 3 and chs 5, 6, 7, and 8 of this book.
 
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