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

Hans-W. Micklitz
5. Impact on Standardisation of services
The European Commission has taken a series of attempts to regulate the
market in services. However, so far most of the rules cover certain sectors only,
mainly because the policy behind has been and still is to open-up markets. In
sector-specific rules standardisation may only fill gaps left by the legislator. In
essence, the regulatory framework is set by the relevant Directives. EC law
defines a minimum set of binding and non-binding rules which define the
relationship between the service provider and the consumer. This policy has
now been overruled by the Services Directive. The Service Directive rests on a
different policy. The idea is not so much to define harmonised European legal
rules, be they binding or not, which shape the relationship between the service
provider and the consumer, but to use the freedom of services and the freedom
of establishment as the leading concepts. Standardisation has to compensate
for the absence of legal rules. In this respect standardisation within the Directive
of Services has a much more prominent role to play.
II.
Types of services (horizontal classification)
The European Commission did not rely on a vertical approach alone to set
common European rules on contracts for services. Two kinds of strategies
might be identified, both aiming at a horizontal regulation.
1. Consumer protection regulation on services
Usually, the four consumer directives, 97/7/EC 89 on distance selling,
2002/65/EC 90 on distance selling for financial services, 2000/31/EC 91 on e-
commerce, and 93/13/EC 92 on unfair terms in consumer contracts, are put into
the same box, the one of consumer protection. However, contrary to the
directives on credit, package tours and time sharing, these four directives lay
down horizontal rules on consumer contracts, both for sales contracts and
contracts for services. The first three are all dealing with the modalities under
which the contract is concluded, i.e. the relevant distance communication
means. The doubling of the distance selling regulation turned out to be the
result of hard lobbying of the financial services sector claiming special treatment
due to the specific character of these services. Directive 2002/65/EC on
distance selling of financial services, which was adopted five years after
Directive 97/7/EC on distance selling provides for particular rules on financial
89 OJ L 144, 4.6.1997, 19.
90 OJ L 271, 9.10.2002, 16.
91 OJ L 178, 17.7.2000, 1.
92 OJ L 95, 21.4.1993, 29.
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