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

Hans-W. Micklitz
2004/39/EC dealing with “Protection to ensure investor protection” (Articles 19
et seq.) starts from a very broad concept. It lays down principles and guidelines
and no, or very few, clear-cut rules. Directive 2006/73/EC, which meant to give
shape to these broad principles, remains again rather broad. For example,
Article 27 of Directive 2006/73/EC will shape Article 19 (2) of Directive
2004/39/EC in the following way:
(The information) shall be accurate and in particular shall not emphasise any
potential benefit of an investment service ... without also giving a fair prominent
indication of the relevant risk. … It shall not disguise, diminish or obscure
important items, statements or warnings.
The question remains whether such an article is really helpful in giving shape to
a ruling which is adopted by the European Parliament and the Council. It is very
likely that the hardcore questions may well be resolved at the third and fourth
level.
The New Approach type of regulation relies much more on shared
responsibilities and cooperation between public regulator and private
institutions. The results obtained in the field of technical standardisation are
regarded as a success story 185 . In fact, the New Approach has boosted
European standard-making through CEN and CENELEC to the detriment of
National Standards Bodies such as AFNOR, BSI and DIN which have lost
influence. Whether the adopted standards satisfy the needs of effective
consumer protection against risks to their health and safety has never been
systematically and comprehensively evaluated 186 . The GPSD builds on the New
Approach type of regulation. The work within CEN/CENELEC and also ISO,
however, has already begun. It is subject to detailed analysis.
The Common Frame of Reference, which will have to developed by the aquis
group and the study group, will be completed in 2007. A set of Principles on
European Law on Service Contracts (PELSC) has already been elaborated by
the study group 187 . However, it has not been merged with the findings of the
acquis group and not been agreed by the European Commission. The principles
as they stand today contain seven chapters dealing with general provisions,
construction contracts, processing contracts (such as repair and maintenance),
storage contracts, design contracts, information supply and medical treatment.
185 http://ec.europa.eu/enterprise/newapproach/index_en.htm.
186 As a scarce exemption to the rule, the study done for ANEC by Micklitz/Schieble, Legal
Study – Exclusion Clauses in Standard Clauses under the EU Low Voltage Directive
73/22/EEC (Children and Disabled People using Electrical Appliances), 2004.
187 Available on the website of the study group.
http://www.sgecc.net/media/downloads/sgeccservices_contracts.pdf.
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