The implications of the Charter and the Lisbon Treaty

The integration of consumer protection in the binding EU Charter is a significant novelty, because of its high-level legal status and supra-national scope. In fact, as described previously, neither the ECHR nor the international human rights provisions directly address this issue or expressly mention consumer protection. Therefore, the Charter can be regarded as providing a newly added value and higher profile for consumer protection.[1]

We can expect that the formal recognition ofthe Charter by the Lisbon Treaty will generally improve human rights protection, since the EU institutions and the Member States are now legally bound by it.[2] In practical terms, during the last five years and especially since the Charter became binding in 2009, a number of key developments at an institutional and policy level have helped to promote fundamental rights.[3] In 2007, the Agency for Fundamental Rights (FRA) was established in Vienna as an independent advisory body of the European Union,[4] which aims to assist EU institutions and Member States by providing expertise and support regarding fundamental rights.[5] Its main tasks are to monitor fundamental rights in the EU by gathering data on the situation of fundamental rights, analyzing core human rights issues, and raising awareness on this topic.[6]

Since 2010 the European Commission has intensified its efforts to check compliance of all its legislative proposals with EU fundamental rights,[7] adopting a strategy for the effective implementation of the Charter. The Commission also published an annual report in 2010 on the application of the Charter and its progress on this.[8]

The most recent annual report (2011) on the application of the Charter shows a marked increase of references to the Charter by the ECJ and by national courts makings requests for preliminary rulings.[9] The report also deals on several occasions with the issue of consumer protection.

In the field of consumer protection, the Charter could have three major effects,[10] influencing consumer protection in respect of: (1) legislative actions; (2) contractual relationships; and (3) possible exceptions to the free movement provisions.[11]

First, the Charter could give a new direction to legislative actions both at the European and at national level. Under EU law, fundamental rights must be respected when adopting and implementing EU provisions and the national law of the Member States must be interpreted and applied in a way which is compatible with them. Thus, the provision regarding consumer protection may be used to influence the interpretation of specific legislation or to abrogate incompatible legislation.[12] EU institutions are obliged to promote the Charter without an extension of their powers, and Member States have to respect these rights. When the European Union adopts new consumer laws, a high level of protection has to be respected according to the fundamental rights principle contained in the Charter. For example, the recent Directive 2011/83/EU on consumer rights[13] expressly states in its recital 66 that it ‘respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’. Consequently, consumer law should not only be revised for improved coherence, but also has to comply with fundamental rights standards and principles.

Secondly, contractual relationships between private parties, such as a consumer and a company, might be directly affected. A contract can be tested through a fundamental rights review of EU legislation and of national laws adopted to implement directives. Such a contractual review might challenge the validity of certain contractual terms and strengthen the position of the consumer as the weaker contractual party.

Finally, the Charter may help to justify an exception to the free movement of goods and services for reasons of general interest, such as the protection of consumer health or human dignity.[14] In recent case law, the ECJ has recognized that fundamental rights may serve as a justification for the Member States’ restriction of free movement rights. This may result in the prohibition of a commercial activity in a Member State despite the cross-border element. For example, in Omega[15] the German authorities banned the computer game ‘Laserdrom’ as it involved simulated killings. The Court held that the objective of the protection of human dignity could justify the restriction of the freedom to provide services.

As the Treaty of Lisbon has only been in force since December 2009, the long-term impact of the binding Charter remains to be seen.[16] The ECJ increasingly refers to the Charter besides the ECHR, using it as a primary source of human rights in its judgments.[17] A growing number of these ECJ cases also directly or indirectly affect consumer-related matters.[18] These will be discussed in detail in the following chapters.

The Charter can help to confirm and strengthen applicable rights. This is particularly true for the application of consumer provisions in combination with other rights, such as the right to dignity, healthcare, or the right to autonomy.

A number of constitutional cases in Member States illustrate the role that basic constitutional rights and principles can have in protecting the weaker contractual party. The next sections will illustrate some of these cases.

  • [1] See also F. Benoit-Rohmer, ‘Article 38, Protection des Consommateur’, in EU Network ofIndependent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights ofthe European Union (2006), p. 319.
  • [2] Except Poland and the UK which opted out of the Charter; see the opt-out Protocol onthe application of the Charter of Fundamental Rights to Poland and the UK, OJ C 115/313-14,9.5.2008.
  • [3] S. Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ 9(2011) 11(4) Hum. Rts. L. Rev., pp. 645-82.
  • [4] Council Regulation No 168/2007 of 15 February 2007 establishing a European Unionagency for fundamental rights, OJ L 53/1, 22.2.2007.
  • [5] See the FRA website: .
  • [6] For more see P. Alston and O. de Schutter, Monitoring Fundamental Rights in the EU: TheContribution ofthe Fundamental Rights Agency (Oxford: Hart Publishing, 2005).
  • [7] See the European Commission’s website, DG Justice: .
  • [8] .
  • [9] The number of references by the ECJ and by national courts addressing questions to the ECJ has grown by almost 50% in comparison to the previous year; see European Commission, 2011Report on the Application ofthe EU Charter of Fundamental , COM(2012) 169, p. 24.
  • [10] O. Cherednychenko, ‘Fundamental Rights and Contract Law’, (2006) Eur. Rev. Contract ,pp. 500 et seq.
  • [11] Additional results could be: (1) creating additional legislation on consumer protection;(2) promoting the enforcement of existing laws and regulations; (3) influencing governments andthe judiciary to intervene.
  • [12] H. Collins, (2005) ‘European Social Policy and Contract Law’, (2005) 11 Eur. Rev. ContractLaw, p. 115, at 117.
  • [13] Directive 2011/83/EU on consumer rights, OJ L 304/64, 22.11.2011.
  • [14] T. Wilhelms son, ‘The Ethical Pluralism of Late Modern Europe and Codification ofEuropean Contract Law’ in J Smits (ed.), The Need for a European Contract Law: Empirical and LegalPerspectives (Groningen: Europea Law Publishing, 2005), p. 143; de Schutter (n 83).
  • [15] Case C-36/02, Omega Spielhallen- und Automatenauftellungs-GmbH v Oberburgermeisterin derBundesstadt Bonn [2004] ECR I-9609; see also Case C-112/00, SchmidbergerInternationale TransporteundPlanzuge v Republik Ostereich [2002] ECR I-5659.
  • [16] Even before the Charter became a binding document it was being interpreted extensively.For instance, in the BECTU case, Advocate General Tizzano of the ECJ stated that the Chartercannot be ignored as a ‘substantive point of reference for all those involved ( . . . ) in the Communitycontext’. Opinion of Advocate General Tizzano, in Case C-173/99, BECTU v Secretary of State forTrade and Industry, 8 February 2001; see also Joined Cases C-402/05P & C-415/05P, Kadi and AlBarakaat v Council [2008] ECR I-6351.
  • [17] E.g. Case C-236/09, Association Belge des Consommateurs Test-Achats et al. v , 1 March 2011; Joined Cases C-297/10; and C-298/10, Hennigs v Eisenbahn-Bundesamt, Land Berlin v Mai, 8September 2011; and Case C-447/09, Prigge, 13 September 2011.
  • [18] See e.g. Case C-236/09, Association Belge des Consommateurs Test-Achats ASBL and Others vConseil des ministres, 1 March 2011.
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