The relevant provisions in the Charter for consumer protection

The Charter is structured in six chapters: dignity, freedoms, equality, solidarity, citizens’ rights, and justice. It sets out significant socio-economic rights and some new rights and objectives which constitute an innovation for traditional human rights. Article 38 on consumer protection and Article 8 on data protection are some examples of these innovative provisions.[1]

Previously, consumer law had been regulated in primary and secondary Community law, as well as in Member States’ legislation. Hence, the inclusion of consumer protection in the ‘Solidarity’ chapter of the Charter was controversial. The draft Charter stated that the EU policy would ensure a high level of protection on health, security, and consumer interests.[2] In the following drafts, various proposals were made, ranging from the complete elimination of consumer law from the Charter, to the proposal of a subjective right for consumer protection.[3] None of these proposals has been adopted by the European Union though, as the final text, in Article 38, states that: ‘Union policies shall ensure a high level of consumer protection.’[4]

Article 38 has been based upon Article 169 TFEU (ex 153 EC), which promotes a high level of consumer protection. However, in contrast to Article 169, the consumer provision in the Charter is kept very short. Article 169 TFEU contains more detailed indications as to the way the EU can achieve consumer protection, including specific rights, such as the rights to safety and information. The inclusion of consumer protection as an objective in the Charter can be regarded as a compromise, acknowledging its importance as a policy goal, but without providing it the legal effect of a fundamental subjective right.[5]

Other provisions of the Charter may also help to further consumer protection in a broader sense; among them, the recognition of human dignity in Article 1, and of the ‘right to the integrity of the person’ in Article 3. Article 3(1) states that ‘Everyone has the right to respect for his or her physical and mental integrity’. Article 3(2) specifically requires, for interventions in the health field, ‘the free and informed consent of the person concerned, according to the procedures laid down by law’. In particular, this provision is relevant for consumer protection in relation to the provision of health services. It helps to ensure that no health intervention is made (for example, for preventive, diagnostic, therapeutic, or research purposes), before the person concerned has received appropriate information from a health professional.[6] The principle of informed consent requires that the individual is adequately informed about the purpose and nature of the intervention as well as on its consequences and risks. Furthermore, this implies that consent may be freely withdrawn at any time by the person concerned.[7]

Another fundamental right which is becoming increasingly important for consumers with the frequent use of Internet services for communication or online transactions is the protection of personal data, enshrined in Article 8. Article 8(2) states that ‘data must be processed fairly for specified purposes and on the basis of the consent of the person concerned’. This Article is also essential for the protection of medical records or against misuse by institutions which hold personal data. However, the protection of personal data may conflict with other fundamental rights. The ECJ has already referred to this provision in several cases when it had to balance the right to privacy and information against property rights.[8]

In addition, the freedom of expression and information in Article 11 and the freedom of assembly and of association in Article 12 of the Charter may be relevant for consumer associations to promote consumer interests. Article 11(1) states that: ‘(e)veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. Article 12 of the Charter states that ‘(e)veryone has the right to freedom of peaceful assembly and to freedom of association at all levels’.

Moreover, according to Article 36 of the Charter ‘(t)he Union recognises and respects access to services of general economic interest as provided for in national laws and practices’. This Article provides a framework for those EU activities which may impact on social and territorial cohesion, by requiring that they respect national laws and practices on access to services of general economic interest. This may be particularly relevant for vulnerable consumer groups which could apply the former provision in conjunction with other specific rights. For example, Article 25 of the Charter states that the Union recognizes and respects the rights of the elderly to lead a dignified and independent life, and to participate in social and cultural activities. A similar clause exists in Article 26 concerning the integration of people with disabilities. These provisions could support the promotion of specific technical facilities in Member States, such as transportation or communication devices to enable elderly or disabled consumers to participate independently in daily life.[9]

Furthermore, Article 35 includes a right of access to preventive healthcare, and the right to benefit from medical treatment under the conditions established by national laws and practices.[10] Such a provision might improve consumer access to preventive healthcare services and to medical treatment.[11]

Finally, Article 47(1) provides a right to an effective remedy and to a fair trial. This means that anyone who has had an EU right violated is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. In addition, it also guarantees the possibility of being advised, defended, and represented, and, in particular, legal aid shall be made available for financially disadvantaged individuals. This provision could be invoked to strengthen the right of access to justice for consumers in the Union.[12]

The Charter was included in the 2004 European Draft Constitution and, in particular, its Article 38 became Article II-98 of this draft. Although the European Draft Constitutional Treaty was eventually rejected, the Charter survived in its original form as a separate document and has become legally binding since the entering into force of the Lisbon Treaty.[13]

To conclude, the integration of consumer protection in the Charter shows the commitment of the European Union to promote a high level of consumer protection.[14] Consumer law has thus received recognition as a fundamental social value, which might be further strengthened by the Treaty of Lisbon. However, the Charter also has various limitations, which are discussed in the following subsections.[15]

  • [1] A. Kiss, ‘Environmental and Consumer Protection’, in S. Peers & A. Ward (eds), The EUCharter of Fundamental Rights: Politics, Law and Policy (Oxford: Hart Publishing, 2004); E. Poillot,Droit europeen de la consommation et uniformisation du droit descontrats (Paris: LGDJ, 2006), p. 64.
  • [2] Draft Charter of Fundamental Rights of the European Union- Amendments submitted bythe members of the Convention regarding social rights and the horizontal clauses (Referencedoc.: CHARTE 4316/00 CONVENT no. 34, see Art. 45 regarding consumer protection May 2000.
  • [3] See Draft Charter of Fundamental Rights of the European Union, CHARTE 4372/00CONVENT no. 39 Brussels, June 2000.
  • [4] E. Riedel, ‘Verbraucherschutz, Artikel 38’, in J. Meyer, KommentarzurChartaderGrundrechteder Europdischen Union (Baden-Baden: Nomos, 2003), fn. 4.
  • [5] Regarding different legal approaches to consumer protection, see H.-W. Micklitz, ‘ConsumerRights’, in A. Cassese, A. Clapham, & J .H.H. Weiler (eds), Human Rights and the EuropeanCommunity: The Substantive Law (Baden-Baden: Nomos, 1991), pp. 53-4.
  • [6] This key principle of medical ethics has been enshrined in Art. 5(1) of the BiomedicineConvention.
  • [7] For more information see M. Nowak, ‘Article 3—Right to the Integrity of the Person’,in EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter ofFundamental Rights of the European Union (2006), p. 39, published online, see: .
  • [8] E.g. Case C-275/06, Productores de Musica de (Promusicae) v Telefonica de SAU [2008] ECR I-271, and more recent cases, which will be discussed in greater depth in ch. 6 ofthis book.
  • [9] See more on access to essential services in the telecommunication services in ch. 6 of this book.
  • [10] See T. Hervey, ‘The Right to Health in European Union Law’, in T.K. Hervey & J. Kenner(eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective(Oxford: Hart Publishing, 2003), pp. 193-222; for cross-border healthcare, see the recent Directive2011/24/EU on the application of patients’ rights in cross-border healthcare, OJ L 88/45,4.4.2011.
  • [11] For an international example regarding the impact of the right of access to healthcare, see thecase law in South Africa in subsection 4.3 of this chapter.
  • [12] See ch. 7 in this book; see also E. Storskrubb & J. Ziller, ‘Access to Justice in European ComparativeLaw’, in F. Francioni (ed.), Access to Justice as a Human Right (Oxford: OUP, 2007); pp. 177-203. A. Ward,‘Access to Justice’, in S. Peers & A. Ward (eds), The EU Charter of Fundamental Rights (Oxford: HartPublishing, 2004), pp. 123-40.
  • [13] On EU constitutionalism, see P. Craig, ‘Constitutions, Constitutionalism and the EuropeanUnion’, (2001) 7 Eur. L. J., pp. 125 et seq; J. Shaw, ‘The Emergence of Post-national Constitutionalismin the European Union’ , (1999) 6 J. Eur. Public Polity, pp. 579 et seq; I . Pernice, ‘Multi-levelConstitutionalism and the Treaty of Amsterdam: Constitution-Making Revisited?’, (1999) CMLRev., pp. 703 et seq.
  • [14] Riedel, ‘Verbraucherschutz, Artikel 38’ (n 66), fn. 5.
  • [15] S. Weatherill, EU Consumer Law and Policy (Cheltenham: Edward Elgar Publishing , 2005),p. 31.
 
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