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

Services Standards
EC legislator is seeking new regulatory techniques which combine traditional
“command and control” regulation with new forms of regulation through softer
forms of intervention. It is here where the Service Directive paves the way for
new initiatives to use standardisation as a means to increase the quality of
services in the Internal Market.
1. Traditional versus less traditional instruments
However, the starting point is traditional regulation through public and private
law means. This distinction is used pragmatically: public law and public
regulatory instruments are mostly all measures which are taken to establish a
competitive European market for the services in question, for setting up single
passport regulation on the basis of home country authorisations, for privatising
former natural monopolies, for guaranteeing access to universal services, for
unbundling the supply of the service and the supply of the net, for creating
single contact points to enhance cooperation between agencies – and for
setting binding requirements on the professional training of service providers.
Private law is used as an instrument to directly intervene in the contract for
services and to shape the contractual obligations 110 . It is a common
characteristic of all regulation on services that the EC legislator combines public
and private law means, although the emphasis is put on public law means in the
here defined sense – with the exemption of consumer law which nearly entirely
focuses on private law.
Traditional instruments in the field of private law are legislative interventions in
order to guarantee a certain level of justice in a supposedly unbalanced
contractual relationship between a consumer or customer or investor and a
supplier by way of mandatory contract law rules. Notwithstanding the field of
services, the European legislator heavily relies on mandatory contract law rules,
i.e. rules that the parties may not contract out e.g. legislative limits to the
exclusion of liability, to shape its consumer policy and to supplement its
liberalisation and privatisation policy. In the field of consumer law these
mandatory rules laid down minimum standards, thereby leaving it for Member
States to adopt more stringent rules. The European Commission is now striving
for full harmonisation in consumer contract law, a policy which the Commission
110 There has been an extensive debate in Germany on whether the legal character of civil law
changes when it is submitted to regulatory interventions. In particular, scholars from the
University of Bremen have been involved in the debate, see
Assmann/Brüggemeier/Hart/Joerges, Wirtschaftsrecht als Kritik des Privatrechts, 1980.
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