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

Hans-W. Micklitz
has already achieved in other fields where it has taken measures to regulate
services 111 .
There is a tendency in European law on services to shift away from traditional
instruments towards less traditional instruments 112 . The latter category covers
default rules and self-regulatory measures in consumer contract law as well as
co-regulation (the combination of a binding legal framework and non-binding
self-regulatory instruments) 113 . It encompasses contract lawmaking and contract
shaping along the line of the quasi New Approach of the Service Directive 114 as
well as the Lamfalussy procedure in Directive 2004/39/EC on financial
instruments.
At a closer look, the set of services offers a heterogeneous picture. The
European Commission has undertaken numerous attempts to enhance the role
and function of self-regulation in consumer law. However, the European
Commission did not succeed in substantially influencing the deeply rooted
cultural differences between Member States. Those Member States who are
traditionally relying on self-regulatory measures could continue their way of
implementing EC law, whereas those Member States that have no such
tradition remain largely unaffected. Two prominent examples might help to
underpin these findings: regulation on unfair commercial practices 115 and the
role and importance of voluntary dispute settlement procedures 116 . The same is
more or less true with regard to co-regulation. The European Commission did
not convince Member States in the Council to test new forms of lawmaking and
law enforcement as discussed in various documents in the aftermath of the
111 See the Commission paper on a consumer policy strategy 2002-2006, KOM (2002) 208
endg. 7.5.2002; quite critical on this policy shift, Reich, Die Stellung des Verbraucherrechts
im “Gemeinsamen Referenzrahmen” und im “optionellen Instrument”, in: Reich/Thévenoz
(eds.), Droit de la consommation – Konsumentenrecht – Consumer Law, Liber amicorum
Bernd Stauder, 2006, pp. 357-382.
112 Ogus, The Regulation of Services and the Public-Private Divide, in: Caffaggi/Muir Watt
(eds.), New Modes of Governance in Private Law, to be published in 2007.
113 Liikanen, Co-Regulation: a modern approach to regulation, 2000, p. 4. Le Livre blanc sur la
gouvernance européenne COM (2001) 428 final and Suivi du Livre blanc sur la
gouvernance européenne – Pour un usage mieux adapté des instruments, COM (2002)
278 final, 5.6.2002, Recours encadré à un mécanisme de corégulation. See for a deeper
analysis Cafaggi (ed.), Reframing self-regulation in European Private law, 2006.
114 See Chapter III, I, 2, f).
115 See Henning-Bodewig, Unfair Competition Law: European Union and Member States,
(International Competition Law) 2006; Howells/Micklitz/Wilhelmsson, European Fair
Trading Law – The Unfair Commercial Practices Directive, 2006.
116 The University of Leuven is currently undertaking a research project inter alia on the law of
the 25 Member States on behalf of DG SANCO which will be available soon.
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