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

Services Standards
I. General observations
1. Disclaimer
Regulation of services as well as standardisation of services is a relatively new
field, for lawyers and for standardisers. Consumer contract law in the area of
services is basically general contract law, the law of obligations. However, the
law of obligations all over Europe has developed together with the
industrialisation process. The main legal area of concern was the producing,
dealing, buying and selling of products. Contract law in essence still today is
sales law. National private legal orders that emerge in the age of
industrialisation had to deal with services only in labour law and with services
provided by craftsmen, legally speaking the contract to manufacture. The socalled
service society emerged in the last decades of the 20 th century. National
and the European legislators dealt with contracts for services in a sectorspecific
way. This is exactly what can be shown in the EC regulation of
services. However, there was no attempt so far to look into common
denominators of all the services and to define ground rules. A first and more
systematic attempt has been made by the study group which proposes a nonbinding
set of rights and duties in the area of services 422 .
Standardisation of services is even younger, at least for consumer services.
Although standardisation of services started long ago, before the Service
Directive had been adopted, the scope and range of available standards is still
rather limited, even more limited than sector-specific EC directives and
regulations. This is to say that the basis of analysis, the standards which could
be screened, is rather slim. Standardisation of services will gain pace in the
future. For this reason the conclusions drawn from the reviewing process should
rather be read as an invitation to more fully consider the identified core
consumer elements in future standard-making.
2. The regulatory divide – traditional law making and less traditional
regulation via standardisation
There is a clear divide between traditional lawmaking and less traditional
regulation via standardisation. The existing EC regulation of services puts
emphasis on the regulation of the content of the service and its legal
implications – it is command and control regulation. The recent initiatives on
standardisation of services are less focussed on the content, they are much
422 See Chapter IV, I, 7.
187