The role of the Charter
The Charter of Fundamental Rights may influence financial consumer protection in a number of ways, some of which are not specific to consumer law but highlighted here as relevant examples. First, an increasing number of financial services directives which deal with consumer issues now expressly refer to fundamental rights. Second, the Charter contains several provisions that may directly affect EU policy or the reasoning of the Court in matters of financial services. Third and closely related to the previous points, the Charter may function as a yardstick to assess the validity of legislative acts, directly influencing financial regulation.
The first role is exemplified by the aforementioned 2008 directive on credit agreements, whose preamble explicitly refers to the Charter, by stating that the directive respects fundamental rights and observes the principles recognized by the Charter. Paragraph 45 of the preamble is more specific as it stipulates that ‘the Directive seeks to ensure full respect for the rules on protection of personal data, the right to property, non-discrimination, protection of family and professional life, and consumer protection pursuant to the Charter1 (emphasis added). This shows that the Charter has influenced EU financial legislation, at least formally, requiring compliance with its standards, and being expressly and increasingly referred to. As for the second role, the Charter itself includes a number of provisions that may be relevant for financial consumer protection. We analyze some of these provisions, which are scattered around the Charter.
Article 38 of the Charter, which has already been mentioned in Chapter 3, is a key provision regarding consumer law, because it stipulates that ‘Union policies shall ensure a high level of consumer protection’. This may influence EU policies in financial matters to take account of consumer interests. The recent Consumer Agenda of 2012 expressly mentions the objective to develop ‘a systematic approach to integrating consumer interests into all relevant policies’ focusing in particular on financial consumer protection. The Agenda contains a number of concrete actions for the Union. Some that are particularly noteworthy include: a recommendation to combat unfair practices in the financial services sector, and a commitment to evaluate the implementation of the Consumer Credit Directive, to assess whether this needs a revision, in particular regarding what concerns the protection of vulnerable consumers. Furthermore, it mentions the provision of basic bank accounts as a measure to prevent financial and social exclusion. This has been followed up by a recent legislative initiative which proposed, among other things, to promote this type of financial service. Interestingly, the Agenda refers precisely to Article 38 of the Charter, and to Article 12 TFEU, thus clarifying the source of its inspiration.
Another important provision of the Charter is Article 33, which states that ‘The family shall enjoy legal, economic and social protection’. This provision may, for example, be applied, together with other relevant binding provisions, to protect family members who act as consumer credit guarantors for a relative, if they have received misleading information by a financial institution. As will be seen in the next subsections, a growing number of such cases have emerged in Member States where individuals have acted as financial guarantors for their relatives, sometimes without having received proper information from the bank regarding the related risks.
The last article of the Charter to be considered here is Article 36 concerning access to services of general economic interest. This provision states that ‘The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union’. The reason why this is relevant in our context is that basic financial services are increasingly acknowledged in Member States as services of general interest, so such a provision may promote a stronger focus on financial inclusion. This is in line with the aforementioned Consumer Agenda, which also expressly recognizes financial services as essential services for consumers. As we saw before and as we will discuss in more depth later, the Union is starting to enquire into how the financial inclusion of consumers may be improved.
A third role that the Charter may play in financial consumer protection is that of a yardstick to examine the legality of specific measures. This is best illustrated by the recent Test-Achats case, discussed at more length later on, where the ECJ referred inter alia to Article 21 of the Charter, which forbids discrimination. This provision was used by the Court as part of the assessment of the validity of secondary law in the insurance sector, and eventually led to an interpretation which was favourable to the consumer organization that brought the claim.
The following subsections describe the influence that constitutional rights can have on financial services agreements in specific Member States, to assess whether the Charter might have a similar effect.
-  OJ L 133/66-92, 22.5.2008.
-  See also Institute for Financial Services, Fundamental Rights and Consumer Credit, Are theseRights still Taken Seriously in the European Credit Society? (2006).
-  Communication from the Commission, A European Consumer Agenda—Boosting confidenceand growth, COM(2012) 225 final, 22.5.2012, Brussels.
-  Proposal for a Directive on the comparability of fees related to payment accounts, paymentaccount switching and access to payment accounts with basic features, COM(2013)0266 final -2013/0139 (COD).
-  Communication from the Commission, A European Consumer Agenda - Boosting confidence and growth, COM(2012) 225 final, 22.5.2012, Brussels.
-  See the report financed by and prepared for the European Commission and drafted byReseau Financement Alternatif, Financial Services Provision and Prevention of Financial Exclusion(2008).