Services Standards: Defining the Core Consumer Elements ... - ANEC

Hans-W. Micklitz
(3) with regard to the content of the contract, rules on the minimum content
could be specified. Safety requirements remain underdeveloped, just as
billing rules which are of utmost importance in the field of consumer
services;
(4) in terms of rights and remedies most of the EC directives and
regulations contain only very basic or no rules. They define
comprehensive information obligations which should be met by the
provider, but do not foresee any sanctions 398 . The same is true with
regard to standards of care. Compliance could be secured by a strong
liability regime. This is missing in most of the directives;
(5) in the post-contractual stage, the directives and regulations remain
certainly underdeveloped. There are no consistent rules on after-sales
services, limited rules on insolvency, some and very inconsistent rules
on in-house complaint handling and out of court dispute settlement
procedures. Rules on collective redress are more or less lacking at all;
(6) last but not least, monitoring and compliance rules do not appear in EC
law relating to services.
The second lesson to learn – if there is something to learn – is the different
language the EC legislator is using. Not only binding law, but also most of the
non-binding recommendations and guidelines, contain relatively clear
messages which could ideally guide the service provider and in case, there is
need, the courts, in assessing whether the provider complied with the self set
standard. However, all EC rules are missing a link between the hard law, i.e. the
directives and regulations and the soft law, i.e. the codes, guidelines and
recommendations. There is no such rule saying that if the service provider
subscribes to the voluntary rules, he may be held liable exactly under these
standards. There is a first hint in the Principles of European Law on Services
Contracts which have been elaborated by the study group 399 . Article 1:107 (3)
General Standard of Care for Services runs as follows:
If the service provider is, or purports to be, a member of a group of professional
service providers for which standards exist that have been set by a relevant
authority or by that group itself, the service provider must exercise the care and
skill expressed in these standards.
398 In its Green Paper on the review of the consumer acquis, COM (2007) 744 final, 8.2.2007,
the European Commission raises the question of whether additional tools are needed, p.
22 under 4.7.
399 Principles of European Law (ed.), Service contracts, prepared by Barendrecht/Jansen/Loos/Pinna/Cascao/van
Gulijk, in the context of Chapter II, IV, 3.
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