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

Hans-W. Micklitz
In theory there is room for developing European standards in the field of safety,
at least as long as the European Community has not taken legislative action.
These European standards could then indirectly affect the Member States
competence to take action in emergency situations.
b) The two freedoms and the protection of consumers
The case law of the European Court of Justice starts from the premise that the
freedom to provide services constitute directly applicable rights for the service
providers and for the recipient of the service. Articles 19 and 20 of the Service
Directive sum up the legal position of the recipient of the service. Member
States may not impose on a recipient requirements which restrict the use of a
service in particular by an obligation to obtain an authorisation from, or to make
a declaration to, their competent authorities or set discriminatory limits on the
grant of financial assistance by reason of the fact that the provider is
established in another Member State, or by reason of the location of the place
at which the service is provided (Article 19)). The host country may not make
the recipient subject to discriminatory requirements based on his nationality or
place of residence (Article 20)).
However, the “true” consumer problem results from the different degree of
consumer protection between Member States. It has to be recalled that there is
and there has never been a particular EC policy on consumer services. There is
a piecemeal sector-specific approach, but there is no horizontal policy. It is here
where the famous Cassis de Dijon 219 formula is of importance, under which
Member States are free to protect the consumer in areas where there are no
harmonised European rules as long as they respect the proportionality
principle 220 . The Service Directive, however, seems to induce an important
policy change. Whereas the Directive does not affect the Member States’
competence to raise the level of consumer protection as long as he or she
contracts with a supplier which is established in the consumer’s home country
(Articles 15 and 4 para 8); the situation seems to be different with regard to the
freedom to provide services. Articles 16 and 17 seem to deviate from the Cassis
de Dijon Doctrine. Article 16, after reiterating the Member States’ obligation to
219 Case 120/78, Rewe vs. Bundesmonopolverwaltung, ECR 1979, 649.
220 The principle of proportionality is a political maxim which states that any layer of
government should not take any action that exceeds that which is necessary to achieve the
objective of government. It was initially developed in the German legal system. It is a
fundamental principle of European Union law. According to this principle, the EU may only
act to exactly the extent that is needed to achieve its objectives, and no further. This
principle has underpinned the European Union since its inception in 1957. It is explicitly
specified in the proposed new Treaty establishing a constitution for Europe.
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