The European Commission launched a Fitness Check (Refit) of the EU Consumer and Marketing legislation, to provide an evidence-based critical analysis of whether EU actions are proportionate to their objectives and meeting these objectives. As part of this exercise, the Commission opened a consultation on the Consumer Rights acquis.
The letter below sets out the response of the Law Society of England & Wales:
“The Law Society of England & Wales (LSEW) broadly welcomes the initiative of the Commission of a Refit of the European Legislation on consumer rights and shares the aim of closely evaluating the effectiveness of existing EU legislation with the purpose of determining if there is the need for further legislative action at EU level. A similar exercise in the UK resulted in the Consumer Act 2015, which has rationalised consumer rights “with the aim of empowering consumers by creating a simplified and enhanced legal regime that affords greater rights when buying goods, services and digital content.”*
“The LSEW recognises that the work of the EU in the field of Consumer Law has, over the last decade, been fundamental in recognising and furthering consumer’s rights within the EU.
“The LSEW reiterates its conviction that the legislation on consumer rights should be applied only to business to consumer contracts, with the definition of consumer being as provided in the Consumer Act 2015: “an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession”.
“In the eventual proposal of new legislation and in the rationalisation of the existing one, the LSEW wishes to reaffirm that:
- any EU legislation must be fully compliant with the principles of proportionality and subsidiarity; and
- any EU legislation must be based on sound and convincing proof that there is a need for it.
“Furthermore, it must be clear that no legislation can lower existing standards of protection for consumers.
“The LSEW generally supports the present framework, which sets out core wide uniform rights with the provision of minimum standards. The model of minimum harmonisation at a high level of protection has worked well in the field of consumer rights; the existing rules have created a stable, fair and open market, in which both traders and consumers have been able to operate with confidence. Any change in this approach (e.g. maximum harmonisation) should be considered with caution and only if objective evidence clearly demonstrates how minimum standards do not achieve the ultimate aim of comprehensive protection of consumer rights.
“The LSEW is open to the possible need for new legislation, particularly taking into account the fast and welcomed development of the digital economy and, in particular, the new market in digital products.
“EU legislation on consumer rights has broadly had the benefit of flexibility; therefore, the LSEW considers the Consumer Sales and Guarantees Directive 1999/44/EC adequate in its provision of the choice of contractual rights and remedies and does not believe that there is the need to add further, prescriptive rules related to the quality of goods.
“The LSEW believes no uniform rules on the content and form of commercial guarantees should be provided. Commercial guarantees are voluntary commitments so they should not be regulated by legislation; the remedies against non compliance are the same as for breach of contract.
“As for the Unfair Contract Terms Directive 93/13/EEC, in relation to possible grey lists and black lists, the LSEW does not consider a grey list objectionable per se (see the list of terms provided in Schedule 2 of the Consumer Act 2015), but there is a question as to whether the Grey List should be indicative or presumptive. The LSEW would prefer the status quo of an indicative list, thereby preserving the flexibility of the system.
“The LSEW considers, in general, that the problem of cross-border means of redress is better served by a collaborative approach between competent authorities, on the model provided by the 2004 Consumer Protection Cooperation Regulation (CPC Regulation).”
*House of Commons Library, Briefing paper SN 6588 1 October 2015