In the Green Paper on the Review of the Consumer Acquis [ 1 ] , the Commission of the European Communities raised a figure of propositions sing the harmonization of European consumer contract jurisprudence and asked for interested parties to react [ 2 ] , with their positions, to a figure of inquiries raised [ 3 ] . The Green Paper does non try to pull any decisions as to the best attack to accomplish or the degree of harmonization required, but there is a sense that the Commission is in the belief, based on a Eurobarometer [ 4 ] , that some grade of harmonization would be good to traverse surround consumer trading. Given the definition of a horizontal instrument and the nature of the job this Green Paper intends to discourse, it is inevitable that, if implemented new European Union statute law in this country would ensue in a European Consumer Code.
Included in the options for greater harmonization contained within the Green Paper is that of a horizontal instrument. There are a figure of issues which must be addressed in order for there to be, as is described by Pierre Legrand a ‘principal juris Europaeum’ [ 5 ] , a unvarying organic structure of European jurisprudence, non least the fact the European Union is formed from 20 seven [ 6 ] distinguishable legal systems. It is these differences together with the bing legislation’s low degree of harmonization which creates atomization within the system and causes low degrees of consumer assurance in relation to traverse boundary line minutess.
The usage of the horizontal instrument proposed by the Commission would ensue in a figure of the issues which are dealt with by bing statute law and which are common to all facets of cross boundary line consumer traffics being unified within all Member States in a individual piece of statute law. The Commission proposes that these issues could include inside informations as to the definition of consumer and professional ( or individual moving within their trade ) , the degree of chilling off period for minutess and the method and handiness of backdown from contracts [ 7 ] . The Green Paper besides suggests that and statute law might convey into conformance all contracts of sale, together with a figure of facets already contained within the Unfair Commercial Practices Directive [ 8 ] .
There are a figure of possibilities put frontward by the Commission in relation to the possible range of the horizontal instrument described above. The instrument could be used to make a state of affairs where there is entire uniformity in all cross boundary line and domestic consumer minutess. In essence consumer Torahs would be standardised in all Member States and minutess, whether within the State or cross boundary line, would be capable to the same ordinances. The 2nd possibility would be that the instrument would merely use to traverse surround consumer minutess. This would go forth the specific Member State free to pass as it chooses on domestic consumer minutess, but gives the consumer the security and the professional a unvarying degree of understanding in order to ease greater cross boundary line trading. The 3rd option would be for the statute law to standardize consumer minutess in relation to all distance merchandising, whether cross boundary line or domestic. Once once more this leaves the single Member State with freedom to pass over face to confront minutess, but gives cognition and security to both consumers and professionals.
In order for a horizontal attack to consumer trade ordinances to be effectual there must be a great trade of harmonization within the legislative demands of the Member States. The current statute law provides for minimal harmonization within Member States. This means that whilst consumers can be confident of a minimal degree of protection afforded to them by the statute law, Member States are able to supply protection over and above that required by the current consumer directives. The effects of this are double – consumers are incognizant of the degree of protection they might have when come ining into a contract within another Member State and professionals are faced with a figure of possibilities associating to their contractual duties depending on the location of their consumer. The Green Paper recognises that maximal harmonization may non be possible [ 9 ] , but suggests that the options of minimal harmonization with limitation, forestalling Member States’ domestic statute law being effectual on professionals from other Member States, either to the minimal EU degree or the degree in the place province, would non assist to simplify affairs in relation to traverse surround consumer minutess [ 10 ] .
The horizontal instrument discussed supra is non the lone suggestion put frontward in the Green Paper on the Review of the Consumer Acquis. One option suggested is the care of the current state of affairs, whereby Member States continue to hold a great trade of control in relation to consumer minutess by trusting on the current legislation’s credence of minimal harmonization. No new statute law would be put frontward to turn to this state of affairs and atomization would surely non diminish and may increase. Alternatively the Green Paper suggests a perpendicular attack whereby each directive is separately amended to conform to the demands of each facet of trade. Clearly there would be advantages to this attack, in that, each country could be addressed separately and amended, or non, in the best involvements of that specific country. This would of class nevertheless be both much more clip consuming and affect a far greater complexness of legislative assembly than the simple all devouring horizontal attack.
There can be small uncertainty that the horizontal attack to legislature associating to consumer cross boundary line trade mooted in the Green Paper would ensue in a European Consumer Code. In order for its success any horizontal instrument will necessitate about entire harmonization of consumer trade Torahs between member provinces and, rather evidently, hence unanimity in each State’s consumer dealing Torahs. There can be small uncertainty that this sort of statute law would turn to the issues inherent in the current system, viz. insecurity for consumers and an burdensome degree of apprehension of each State’s current Torahs for professionals. This in bend would assist the European Union address the struggle these issues create with one of its cardinal aims – free and undistorted competition [ 11 ] .
EC Treaty, Article I-3
Foster, N. ,EC Legislation 2004-2005 15ThursdayEdition( 2004 ) , Oxford: OUP
Green Paper on the Review of the Consumer Acquis ( COM ( 2006 ) 744 concluding )
Hesselink, M. W. ,The Politics of a European Civil Code( 2004 ) , European Law Journal ( Vol.10 No.6 pp.675 – 697 )
Legrand, P. , ( 2006 )European Legal Systems are non Converging.
Proposal for a Directive of the European Parliament and the Council on Consumer Rights ( COM ( 2008 ) 614 concluding )
Smits, J. M. ,Diverseness of Contract jurisprudence and the European Internal Market( 2005 ) , Maastricht: Universiteit Maastricht
Unfair Commercial Practices Directive ( Directive 2005/29/EC )
Weatherill, S. ,Cases and Materials on EU Law 8ThursdayEdition( 2007 ) , Oxford: OUP