II. JUSTIFICATION OF THE PROPOSAL IN THE LIGHT OF THE SUBSIDIARITY
PRINCIPLE
(a) What are the objectives of the proposed measure, and how
do they relate to the Community's obligations?
Article 129a of the Treaty stipulates that the Community shall
contribute to the attainment of a high level of consumer protection
through measures adopted pursuant to Article 100a in the context
of the completion of the internal market and through specific
action which supports and supplements the policy pursued by the
Member States to protect the health, safety and economic interests
of consumers and to provide adequate information to consumers.
The Community measure is designed to approximate the essential
features of the domestic legal orders pertaining to the sale of
consumer goods, so as to improve the functioning of the single
market and to reduce distortions to competition which may be caused
by differences in the legislations, by providing European consumers
with a minimum standard of protection, no matter where they shop.
More specifically, the envisaged measure would have the following
benefits:
-- strengthen consumer confidence in the single market;
-- facilitate cross-border shopping and strengthen the role
of consumers as active market players;
-- simplify existing national rules;
-- bring Community law closer to European citizens by giving
them direct and very tangible benefits. Hence strengthen the Community
citizen's support for European integration;
-- have positive effects on competition, business competitiveness
and the European economy.
(b) Is the measure an area where the Community has sole jurisdiction
or where it shares jurisdiction with the Member States?
The measure concerns an area where the Community has sole jurisdiction,
namely the creation and operation of the single market.
(c) What options are available to the Community?
The objective pursued can only be achieved by Community Directive
laying down minimum rules.
Independent measures taken by the Member States can ensure neither
a minimum standard of protection for consumers throughout the
Union nor adequate protection of consumers in the context of cross-border
transactions. The Directive's main objective - the approximation
of national rules governing the legal guarantee - is incompatible
with solutions based on "soft law" or codes of conduct.
Moreover, the sectors under consideration are so heterogeneous
that the establishment of pan-European codes of conduct seems
to be an unrealistic option.
(d) Are uniform rules needed, or is it enough to adopt a Directive
setting out general objectives, while leaving implementation to
the Member States?
Considering the existing differences between national laws, both
in respect of issues of principle and legislative techniques,
partial harmonisation is required.
As required by the principle of subsidiarity, the proposal for
a Directive is however strictly limited to the essential aspects
concerning legal guarantees and commercial guarantees. Hence the
proposal concerns only consumers' rights relating to direct "repair"
of the deficiency: Member States remain completely free to determine
the rules on damages, both direct and indirect, applicable to
consumers who have purchased a defective good.
[47] Likewise,
the proposal for a Directive says nothing about the general rules
applicable to sales contracts, those relating to the formation
of the contract, absent of consent, etc. The proposal does not
regulate the substance of commercial guarantees and there is no
general requirement to provide guarantees.
Moreover, within the strict limits of partial harmonisation, the
proposal for a Directive provides only for minimum harmonisation;
hence Member States will be free to adopt or maintain in force
more stringent rules with a view to protecting consumers. Thus
the national margin of discretion will be very wide.
Finally, the very nature of the text-rules applicable in the context
of sales of consumer goods - means that practical enforcement of
most of the provisions will be a task for the national courts,
which will apply these rules on a case-by-case basis.
47
In contrast to the amended proposal for a Directive on unfair
terms in consumer contracts (COM(92) 66 of 4 March 1992, OJ No.
C 73, 24 March 1992), where this aspect was expressly included
in Article 6. Back
