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

Hans-W. Micklitz
regulation is to put international private law rules under the jurisdiction of the
European Court of Justice by way of relying on Articles 61/67 of the ET. This
has not been the case under the Rome Convention which was concluded by
Member States as an international convention.
However, international private law is not only important to define the applicable
contract law. It might well happen that consumers come into contact with foreign
law without concluding a contract, e.g. if they suffer from an accident during
their holidays. International private law is therefore likewise important in
deciding over the applicable law in case consumers suffer from injuries or
economic loss through the non-fulfilment of extra-contractual obligations. So far
there has not been any European convention concluded by Member States
similar to the Rome Convention on Contract Law or a European regulation,
adopted by the European Community, dealing with extra-contractual liability.
This gap will now be closed by the draft EC regulation on extra-contractual
liability, the so-called Rome II Regulation 101 . The work is far advanced and the
envisaged rules already take clear shape. The project does not distinguish
between liability resulting from unsafe goods, or liability resulting from unsafe
services. The draft regulation will apply in situations involving a conflict of laws
to non-contractual obligations in civil and commercial matters, with limited
exemptions for accountants and trustees. It lays down specific rules for product
liability and unfair commercial practices. Directive 85/374/EEC on product
liability, however, applies to products only. Electricity is regarded as a product,
contrary to its supply which is regarded as a service. That is why liability claims
which result from accidents deriving from the unsafe use or unsafe supply of
electricity would come under the Directive. The originally intended directive on
the liability for the safety of services had to be withdrawn due to the strong
resistance of some Member States 102 . This means that there is an important gap
in the existing set of European liability rules. This is all the more important as
the Service Directive opens up markets for all sorts of non-sector-specific
services without providing for appropriate rules that deal with the liability for the
safety of services in cross border cases 103 . It remains to be seen whether the
European Commission is willing to pick up the issue of liability for the safety of
101 COM (2003) 427 final, 22.7.2003, as revised COM (2006) 83 final, 21.2.2006.
102 See with regard to the proposal COM (1990) 482 final, OJ C 12, 18.1.1991, 8 and the
withdrawal COM (1994) 260 final.
103 See for a more detailed analysis, Chapter III, I. 2.
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