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Consumer Affairs

Overview

 
 
 Review of the Consumer Acquis
 
Current Status
 
On 8 February 2007, the European Commission adopted a Green Paper on the review of the Consumer acquis calling on all interested parties to express their views.
 
In order to protect the Direct Marketing industry, after thorough analysis and discussion with our Legal Affairs Committee members, FEDMA sent its position paper to the Commission at the end of the consultation period (15 May 2007).
The Commission is currently analyzing the contributions and will publish a summary in the 4th quarter of 2007 on whether there is a need for a legislative initiative.
 
Background
The Commission is reviewing the following 8 Directives:
All these Directives are based on minimum harmonization principle hence the existing inconsistencies in terms of the level of protection afforded to EU consumers and increased legislative burden on business. It was felt that a review was clearly needed to avoid internal market barriers arising from these failings
 
FEDMA position
 
 
FEDMA believes that a compromise must be reached between the necessary protection offered to the consumer and the indispensable legal security for business operators when operating cross-border.
 
FEDMA hopes the European Commission, during its revision of consumer policy, will correct inconsistencies, update the directives and remove unnecessary prohibitive restrictions.
 
The Commission intends to harmonise the essential rights to consumers throughout the EU to cover every means used to purchase products. Nonetheless, FEDMA considers the intention of the Commission to extend the relevant requirements of the Distance Selling and Direct Selling Directives to all the retail trade as an ambitious venture.
 
Distance Selling Directive
 
The Distance Selling Directive is one of the 8 Directives under review by DG SANCO. It applies to any consumer distance contract made under the law of an EU-Member State as well as the European Economic Area (EEA), and is aimed at putting consumers who purchase goods or services through distance communication means in a similar position to consumers who buy goods or services in shops.
 
FEDMA is currently updating its implementation tables on the Directive. 
 
Background
 
Distance communication includes traditional means such as press adverts accompanied by order forms, catalogue sales, telephone. It also covers more technologically advanced means of distance communication such as teleshopping, mobile phone commerce (m-commerce), and the use of the Internet (e-commerce).
  
FEDMA was invited to contribute to a specific consultation on the review of the Distance Selling Directive at the end of last year (insert date) Please find below some considerations in our position paper:
 
  1. FEDMA emphasized the consistency of definitions of keywords like “consumer” and “supplier” throughout the 8 Directives in the Consumer Acquis, as well as the UCP and the other relevant Directives. 
  2. It urged a redefinition of unclear concepts such as “durable medium”, necessary  to take into account the developments in the means of communication. 
  3. We believe precision for details like “exceptions to right of withdrawal”, “cost of return” are also required in the light of new market developments and technologies. Above all, these definitions should be compatible with other relevant directives for purposes of legal certainty and coherence.  
  4. FEDMA considered that the use of the minimal clause i.e. the possibility for Member States to retain or introduce provisions offering a higher standard of consumer protection affected cross border trade and competition was the most contentious and problematic article of the Directive. 
  5. FEDMA supports the idea that the review should be done with the aim of full liberalization which would not only be beneficial for cross-border transactions but would also contribute towards legal certainty in all aspects of distance selling and would still not exclude the possibility of self-regulation.  
  6. We believe that the level of harmonization must also take into consideration both the interests of business and consumer.  Whereas full harmonization proves impossible, full country of origin principle is the only alternative to prevent Member States from introduction tariff barriers and protectionism.
 
 
 Unfair Commercial Practices (UCP) (2005/29/EC)
 
The Directive was adopted by the European Parliament and the Council on 11 May 2005 with the aim of enhancing consumers' rights and boosting cross-border trading by harmonizing divergent national rules on business-to-consumer commercial practices.  The deadline for transposition was 12 June 2007. Its provisions must be applicable in the Member States by 12 December 2007.
 
FEDMA is currently gathering information from members on the transposition of the Directive into national law.  
 
Background
 
The UCP Directive contains an annex with 15 practices such as pressure selling, misleading marketing and unfair advertising, which are considered unfair and to be prohibited throughout the EU. 
Through this legislation, EU consumers will be given the same protection whether buying locally or from other Member States' markets. Business is expected to benefit from having a clear set of common rules to follow, rather than a myriad of divergent national laws and court case rulings.
 
FEDMA Position
 
FEDMA is not in favor of reviewing the UCP Directive but urges the correct implementation of the existing Directive. Some countries, by trying to protect national business, have been listing other items as unfair practices under national law.  FEDMA would like the Commission to use its powers to stop Member States from violating the maximum harmonized principles of the UCP.