Feasibility and policy implications
The previous sections have proposed potential developments for EU consumer law: a shift towards social and sustainability objectives, and a strengthening of procedural rights. Would the EU have sufficient competences to promote such a broader consumer approach?
The EU has developed consumer law, mainly on the basis of Article 114 TFEU (ex Article 95 EC). As the Tobacco Advertising case has shown, there are competence limitations for the EU to legislate by invoking Article 114 without a clear market-making objective. However, the ensuing case law has been more permissive with regard to new directives, so that broader measures may be adopted in consumer law on the basis of this Article, if they also promote market integration.
However, for the adoption of provisions that have no economic integration goals, Article 169(2)(b) TFEU (ex 153(3)(b) EC) can serve as an appropriate basis, which states that the EU shall contribute to the realization of consumer protection objectives ‘through measures which support, supplement and monitor the policy pursued by the Member States’.
It may be argued that this norm does not confer an outright power on the EU to legislate, as its competence is made conditional on the existence of Member State policies, which the EU can support, supplement and monitor. However, given that each Member State does have policies and legal provisions which protect consumers, it would appear that the EU de facto has some competence to legislate in this area. In particular, the reference to measures to ‘support, [and] supplement’ perfectly supports the creation of empowering procedures and protective measures.
Given that the Commission possesses the legal means to propose a broader model of consumer law, the question is then whether there is the political will within the EU to change its approach. At the moment there does not seem to be a strong political willingness to initiate a regulatory reform in primary law. However, the EU would already have some competence to adopt a broader approach like the one proposed in this chapter. The first signs of a trend towards strengthened procedural and social objectives have appeared in specific areas of secondary consumer law. The next chapters will examine these first steps by looking at a number of consumer areas.