MARMARA ÜNİVERSİTESİ HUKUK FAKÜLTESİ HUKUK ARAŞTIRMALARI DERGİSİ C. 20 S. 3 - PDF

Description
MARMARA ÜNİVERSİTESİ HUKUK FAKÜLTESİ HUKUK ARAŞTIRMALARI DERGİSİ C. 20 S. 3 Y THE EU REGULATION ON AFTER-SALES SERVICES IN THE CONSUMER RIGHTS DIRECTIVE: MISSED OR SEIZED THE OPPORTUNITY? TÜKETİCİ

Please download to get full document.

View again

of 21
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Information
Category:

Automobiles

Publish on:

Views: 23 | Pages: 21

Extension: PDF | Download: 0

Share
Transcript
MARMARA ÜNİVERSİTESİ HUKUK FAKÜLTESİ HUKUK ARAŞTIRMALARI DERGİSİ C. 20 S. 3 Y. 2014 THE EU REGULATION ON AFTER-SALES SERVICES IN THE CONSUMER RIGHTS DIRECTIVE: MISSED OR SEIZED THE OPPORTUNITY? TÜKETİCİ HAKLARI DİREKTİFİ NDEKİ SATIŞ SONRASI HİZMETLERE İLİŞKİN AB DÜZENLEMESİ: FIRSATI KAÇIRMAK YA DA YAKALAMAK? Dr. Deniz TEKİN APAYDIN * ÖZET Avrupa Birliği nin İç Pazar projesi önemli ölçüde sınır ötesi satımlara dayanmaktadır. Bu resimde tüketiciler, güveninin sağlanması gereken asli aktörlerden biri haline gelmektedir. Anketler tüketicilerin, diğerlerinin yanı sıra, satış sonrası hizmetlere ilişkin de endişeleri olduğunu göstermektedir. Ancak AB yakın zamana kadar bu konuda harekete geçmekten kaçınmıştır tarihli Tüketici Hakları Direktifi değişik tipte tüketici sözleşmeleri için satış sonrası hizmetlere ilişkin hükümler ihtiva etmektedir. Bu direktifte benimsenen yaklaşım, Komisyon un 1993 tarihli Tüketici Malları için Garanti ve Satış Sonrası Hizmetlere ilişkin Yeşil Kitap ında tartışmaya sunulan bilgi-odaklı rejimi yansıtmaktadır. Bu çalışma, Yeşil Kitap ta önerilen rejimleri incelemek ve Tüketici Hakları Direktifi nde benimsenen metodun potansiyelini tüketicinin güveni açısından değerlendirmek amacındadır. Bu bakış açısı ile bilgi-merkezli rejimi güçlü kılmanın ve tüm potansiyelini ortaya çıkarmanın anahtarı olduğu için, önerilen rejime uyulmasını sağlayacak yollar tespit edilmeye çalışılacaktır. Anahtar Kelimeler: Avrupa Birliği hukuku, tüketici güveni, tüketici sözleşmesi, satış sonrası hizmetler, Tüketici Hakları Direktifi, sınır ötesi ticaret * Marmara Üniversitesi Hukuk Fakültesi Milletlerarası Hukuk Anabilim Dalı 4 MÜHF HAD, C. 20, S. 3 ABSTRACT The Internal Market project of the European Union is largely dependent on cross-border sales. Consumers in this panorama become one of the vital actors, yet whose confidence needs to be maintained. Surveys indicate that consumers have concerns regarding the provision of after-sales services, inter alia others. Yet the EU avoided acting on it until recently. The Consumer Rights Directive of 2011 encompasses provisions regarding aftersales services in different types of consumer contracts. The approach adopted by this Directive reflects the information-based regime, which was presented for discussion in the Commission s Green Paper on Guarantees for Consumer Goods and After-sales Services of This article examines the proposed regimes of the Green Paper and explores the potential of the method adopted by the Consumer Rights Directive, vis-à-vis consumer confidence. In this perspective, a strong compliance with the proposed regime will be sought to be maintained, since it is the key to empowering the information-oriented regime to reach its potential. Keywords: European Union law, consumer confidence, consumer contracts, after-sales services, Consumer Rights Directive, cross-border trade INTRODUCTION Regulation of after-sales services for consumer goods within the EU framework has been in the EU s agenda since the beginning of 90 s, hence with a fading interest in the area. The action plan on consumer policy of the Commission made a reference to the subject by including examination of possible initiatives to simplify cross frontier consumer contracts, guarantees and after sales service into its action plan for the period. 1 In its following three year action plan, the Commission clearly declared its intention to prepare a green paper on guarantees and after-sales service conditions, emphasising the significance of the area with reference to its key role for the single market, and states that: Transfrontier shopping can only flourish if the consumer is assured that he can enjoy the same after- 1 Commission (EEC), Three Year Action Plan of Consumer Policy in the EEC ( ) COM (1990) 98 final, 3 May 1990, p.16 Dr. Deniz Tekin Apaydın The EU Regulation On After-Sales Services in The Consumer Rights Directive: Missed or Seized The Opportunity? 5 sales and guarantee terms no matter where the supplier is domiciled. 2 A few months into this declaration, the Green Paper was ready and up for a discussion. In spite of the strong argumentation and reference of the Green Paper on Guarantees for Consumer Goods and After-sales Services 3 (hereinafter referred as the Green Paper ) for the subject, it was avoided to be enacted. In the Consumer Guarantees Directive of , which is the product of the process that started with this Green Paper, it was decided to not to regulate the after-sales services. The ambitious Proposal for a Consumer Rights Directive 2008, 5 which intended to replace eight of the existing consumer protection directives, 6 one of which is the Consumer Guarantees Directive, with a horizontal approach structure, transformed along the way and ended up as the Consumer Rights Directive (the CRD), 7 which only repealed two directives 8 and amended further two, 9 one of which Commission (EC), Second Commission Three-Year Action Plan ( ) COM (93) 378 final, 28 July 1993, p.26 COM (93) 509 final, 15 November 1993 Council Directive (EC) 99/44 on certain aspects of the sale of consumer goods and associated guarantees (the Consumer Guarantees Directive) [1999] OJ L171/12 Commission (EC), Proposal for a Directive on consumer rights COM (2008) 614 final, 8 October This project was the product of the Commission s Green Paper on the Review of the Consumer Acquis, which sought to implement a framework instrument. Commission (EC), Green Paper on the Review of the Consumer Acquis COM (2006) 744 final, 8 February 2007 Council Directive (EEC) 85/577 to protect consumer in respect of contracts negotiated away from business premises (the Doorstep Selling Directive) [1985] OJ L372/31; Council Directive (EEC) 90/314 on package travel, package holiday and package tours (the Package Travel Directive) [1990] OJ L158/59; Council Directive (EEC) 93/13 on unfair terms in consumer contracts (the Unfair Terms in Consumer Contracts Directive) [1993] OJ L95/29; Council Directive (EC) 94/47 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis (the Timeshare Directive) [1994] OJ L280/83; Council Directive (EC) 97/7 on the protection of consumers in respect of distance contracts (the Distance Selling Directive) [1997] OJ L144/19; Council Directive (EC) 98/6 on consumer protection in the indication of the prices offered to consumers (the Price Indications Directive) [1998] OJ L80/27; Directive 98/27/EC (the Injunctions Directive) [1998] OJ L166/51; and Council Directive (EC) 99/44 on certain aspects of the sale of consumer goods and associated guarantees (the Consumer Guarantees Directive) [1999] OJ L171/12 Council Directive (EU) 2011/83 on consumer rights (the Consumer Rights Directive) [2011] OJ L304/64 Council Directive (EEC) 85/577 (the Doorstep Selling Directive) and Council Directive (EC) 97/7 (the Distance Selling Directive) Council Directive (EEC) 93/13 (the Unfair Terms Directive) and Council Directive (EC) 99/44 (the Consumer Guarantees Directive) 6 MÜHF HAD, C. 20, S. 3 is the Consumer Guarantees Directive. The CRD had references to aftersales services, which is an improvement; but the question is whether it is a potent enough reference to tackle consumer confidence issues. This article aims to provide a closer look into the subject of after-sales services for consumer products, and explore the reach of the regulation of the Consumer Rights Directive on the area with reference to consumer protection in general and consumer confidence in particular. With this purpose in mind, first the relevance of the subject in terms of the Internal Market will be mentioned, with a particular emphasis on consumer confidence. Second, the subject will be tested against the competence of the EU vis-à-vis conferral, subsidiarity and proportionality principles. Next, the possible solutions referred in the Green Paper will be analysed, and the best method to regulate the area will be identified. Then the regulation of the Consumer Rights Directive will be examined in this regard and the possible improvements will be established. THE INTERNAL MARKET & CONSUMER CONFIDENCE CORRELATION The Internal Market is asserting to be the largest domestic market in the industrialised world. This big market was created for a number of reasons, the most important of which is the facilitation of Europe s economic and political integration, as can be understood observing the historical background. Although European integration commenced for political rather than economic reasons, 10 the further processes led to the dominance of economic integration over the political agenda. 11 Economic co-operation was viewed as a politically acceptable way of increasing integration while laying the groundwork for political co-operation at a future date. 12 Further integration of the Internal Market demands key actors to participate the process. Consumers, who enter into cross-border transactions The leading policy was the need for guaranteeing peace, through a number of cooperation establishing agreements, following the Second World War. For further information see: F Scharpf, Negative and Positive Integration in Governing in Europe: Effective and Democratic? (OUP, Oxford 1999) p.44 A Sbragia, Key Policies in E Bomberg and A Stubb (eds), The European Union: How Does It Work? (OUP, London 2003) p.119 Dr. Deniz Tekin Apaydın The EU Regulation On After-Sales Services in The Consumer Rights Directive: Missed or Seized The Opportunity? 7 within the EU, are one of the most significant actors that can advance integration; while online purchases made through the Internet is the most available tool to be used in the process. However, the level of participation in cross-border e-commerce within the EU is rather low amongst European consumers. The potential of cross-border e-commerce is suppressed by lack of consumer confidence. There is no established legal definition of consumer confidence within the EU, although this concept is at the heart of most activities within the field of consumer protection. The significance of consumer confidence for the EU is due to its key role in facilitating the Internal Market. Therefore it is of particular importance in relation to cross-border transactions. Consumer confidence may generally be defined as the consumers perception on the level of credibility of the current and future economic outlook. The expression of the sentiment of consumers about the economy is generally exposed by the willingness to make purchases. Therefore, when we say low levels of consumer confidence, it refers to consumers unwillingness to conclude transactions with a variety of traders. The higher the level of consumer confidence, the higher the level of economic activity is. The EU consumer policy agenda has long been searching for solutions to address the low levels of consumer confidence. With the Internal Market concerns in mind, consumer confidence is now the core of a new approach to consumer protection in the EU. The Consumer Policy Strategy , emphasizing the consumer dimension of the Internal Market, acknowledges the fact that our need for confident consumers to drive our economies has never been greater Similarly the current European Consumer Agenda establishes that Improving consumer confidence in cross-border shopping online by taking appropriate policy action could provide a major boost to economic growth in Europe. Empowered and confident consumers can drive forward the European economy. 14 Therefore the current Agenda is built on endeavours to identify key policy areas to serve to that end. With these activities on one hand, lower levels of consumer confidence persist on the other. According to the findings of an extensive survey in the Commission (EC), Consumer Policy Strategy COM (2007) 99 final, 13 March 2007, p.9 Commission (EC), A European Consumer Agenda- Boosting confidence and growth COM (2012) 225 final, 22 May 2012, p.1 8 MÜHF HAD, C. 20, S. 3 EU, 59 per cent of consumers feel confident buying online from a domestic retailer, while only 36 per cent feel the same as regards retailers located in another EU country. 15 The ratio of consumers who do not feel confident is given as 31 per cent and 49 per cent respectively. 16 For a fully functioning Internal Market the gap between domestic and cross-border sales needs to be approximated. Another survey conducted within the EU reveals that an average of 27 per cent of the people, who do not use the Internet as a shopping medium, cited concerns regarding after-sales services as a reason. 17 It is only logical that should the EU seek to provide a remedy for low levels of consumer confidence in cross-border e-commerce, measures that are capable of tackling consumer confidence weakening components must be taken. COMPETENCE OF THE EU TO REGULATE THE AREA Before the entry into force of the TFEU (Treaty on the Functioning of the European Union) 18 most of the consumer law Directives were based on Article 95 EC (now Article 114 TFEU). Therefore, any consumer protection harmonisation activity based on this Article was constructed on eliminating barriers to trade and distortions of competition along the lines of Internal Market integration purpose of the Article. It is observed that this approach has not changed in the Consumer Rights Directive. The other legal basis was Article 153 EC (now Article 169 TFEU), 19 which presented a supplementary competence limited to measures designed to support, supplement and monitor Member States policies, and has been hardly ever used as a legislative base. 20 The fact that this provision embodies a minimum Flash Eurobarometer 358, Consumer attitudes towards cross-border trade and consumer protection (Report) (2013) p.23 ibid. Special Eurobarometer, European Opinion Research Group, European Union Public Opinion on Issues Relating to Business to Consumer E-Commerce (Executive Summary) (2004) p.17 OJ C 306/1 of 17 December 2007 (entered into force on 1 December 2009) Article 169 TFEU is the renumbered version of Article 153 EC, except for the second paragraph, which has been moved to Article 12 TFEU and placed as an individual provision. Only the Directive on price indications has been based on Article 153 EC. (98/6/EC on consumer protection in the indication of the prices offered to consumers [1998] OJ L80/27) Dr. Deniz Tekin Apaydın The EU Regulation On After-Sales Services in The Consumer Rights Directive: Missed or Seized The Opportunity? 9 harmonisation clause 21 may also have an effect on this preference, where the current trend is maximum harmonisation. Although the debate on whether the consumer policy of the EU has an autonomous character independent of the Internal Market is still hot, it will not be discussed here. It is currently sufficient to mention that of the two Articles referred above, Article 95 EC was limited in its scope to market integration, while Article 153 EC could only be used in limited circumstances. Although set down that it is better avoided to use a double legal basis where the measure s centre of gravity mainly relates to one of the relevant matters, 22 the ECJ (The Court of Justice of the European Union) acknowledges that it is still possible if the act concerns two subjects equally. Leaving the discussions on whether a legislation regulating after-sales services for consumer products should have a double legal basis or a single one (and if so which one) to one side, taking the Internal Market aspect of consumer policy in the EU, which was briefly given in the previous section, the preferred basis for legislation on after-sales services will be accepted as Article 114 TFEU, following the common practice, and in line with the Consumer Rights Directive. As clearly established, the limits of the competence of the EU is governed by the principle of conferral, according to which, the EU can only act within the domain conferred upon it by the Treaties. 23 This was also reinforced by Art.4 of the TEU, which confirms clearly that competences not conferred upon the Union in the Treaties remain with the Member States. The somewhat complicated division of competence between the EU and the Member States have been relatively clarified in the post-lisbon era by the introduction of a competence catalogue in the TFEU. Both internal market and consumer protection have been cited as areas of shared competence in Art.2(2) of the TFEU. 24 However, the same Article also Article 169(4) provides that measures adopted under Article 169 TFEU shall not prevent any Member State from maintaining or introducing more stringent protective measures. For more information, see: Kathleen Gutman, The Constitutional Foundations of European Contract Law: A Comparative Analysis (OUP, Oxford 2014) Section 9.3 The Scope of Article 169 TFEU, p.409 Case C-178/03 Commission of the European Communities v European Parliament and Council of the European Union [2006] ECR I-107, para 42 TEU, Article 5 Therefore, even in case of the use of a double legal basis (Internal Market and consumer competence) for such an act would be more straightforward, since it could have been 10 MÜHF HAD, C. 20, S. 3 stipulates that the Member State can exercise competence only to the extent that the EU has not exercised or has decided to cease to exercise its competence within any such area. It is this pre-emption rule, which renders the competence of the EU constantly expanding against the domain of competence of the Member States within the shared competence areas. So far it is clear that the subject matter of this paper is in an area on which the EU is statutorily competent to act, nevertheless, besides the Member States. So this paper will next seek to address the question of who is best to use competence to act on after-sales services, the EU or the Member States. Confirming the potential competence of the EU on the area, it should now be explored whether an EU-wide action was necessary to regulate the area. It is the subsidiarity test that needs to be applied to answer this question. Subsidiarity principle, along with proportionality, is intended to structure the exercise of competence. Introduced by the Maastricht Treaty, and retained in the Lisbon Treaty, subsidiarity principle has been an important political and legal control mechanism. 25 It is contained in Art.5(3) TEU: 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. According to this article there are three preconditions for complying with the principle of subsidiarity: (a) the area concerned does not fall within the Union s exclusive competence; (b) the objectives of the proposed action 25 problematic if one of the matters fell in the exclusive competence area. For more information see: Andrea Biondi, Piet Eeckhout and Stefanie Ripley (eds), EU Law after Lisbon (OUP, Oxford 2012) p.88 Gibson reports that there is a paternalistic assumption that it would be used as a shield to protect Euro-sceptics and disenchanted voters against unwarranted and excessive interference from Brussels. Leigh Gibson, Subsidiarity: The Implicati
Related Search
Similar documents
View more...
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks