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Chapter 28: Consumer and Health Protection

European Commission adopted in 1975 first Preliminary Programme of the European Economic Community for a consumer protection and information policy and this document also incites basic consumer rights: the right to health safety and security, the right to protect economic interest, the right to legal instrument, the right to be informed and the right to be heard. This Programme laid down the basis for development of EU Consumer Protection Law, which thirty seven years after the adoption of this document stands as a separate and highly developed area of the EU law.

Development of European Consumer protection law is marked with both processes, negative as well as positive harmonization. Negative harmonization was dominant in the beginnings when ECJ’s decisions in Luxembourg examined purpose of existence of certain national legal acts in the field of consumer protection law from the perspective of thee free movement of goods and services. In those cases ECJ examined necessity of national legal acts in Members States that impeded unhampered movement of goods and services between Member States, but as well explained the ways for protection of consumers.

Along with process of negative harmonization, European Commission also proposed unique European legal acts in specific areas of consumer protection, mostly by adopting directives. This process of positive harmonisation has developed rather slow firstly and mostly concerned health protection and safety of consumers. At the beginning of the last decade of twentieth century it has accelerated rapidly. As the result, dozens of directives have been adopted in this field and nowadays only small part of consumer law is not covered with some of European directives and regulations.

EU Member States have only greater freedom in regulating enforcement of transposed provisions in practice, but with clear guidelines for ensuring efficiency, proportionality and deterrence of traders from breaching those acts.

Since its inception, development of the European Consumer Law has been twofold: firstly, reaching high general level of consumer protection and, secondly, ensuring unhampered movement of goods and services between Member States by harmonizing legal acts between them. Thus, development of the European Consumer Law has not been conditioned only with the necessity to provide consumers with high level of protection, but there is also another trigger, that is the essence of the establishment and existence of the EU: establishment and achieving common market.

European consumer policy was characterized for a long time exclusively as a minimal harmonization. Requirements for minimal harmonisation consider that Member States have the obligation to transpose directives into national legal order and comply with minimal level of consumer protection envisaged in directives. On the other side, Member States have freedom to increase level of consumer protection in accordance with their respective national policies (and founding treaties).

However, last decade of European consumer protection law development is marked by radical shift from minimal to maximal harmonisation requirements. All European consumer-related directives adopted in previous years require maximal, complete harmonisation of domestic legal orders with the EU law. Maximal harmonisation lays down requirement for not only minimal level of protection envisaged by particular directive, but also maximally allowed level of protection. This type of approach has been many times reaffirmed within ECJ’s judicial practice.

Seven most important consumer-related directives represent main sources of the EU Consumer Law: Directive on Contracts Negotiated Away From Business Premises, Directive on Unfair Contract Terms, Directive on Distance Contracts, Directive on Sale of Consumer Goods, Directive on Unfair Commercial Practices, Directive on Consumer Credit, and new Directive on Consumer Rights.

Contact person:

Mateja Đurović, CEP - mateja.djurovic@cep.org.rs

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Open Society Foundations

Regional Research Promotion Programme