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

Services Standards
respect the freedom to provide services, allows Member States to restrict that
very right only for reasons of public policy, public security, public health or the
protection of the environment. Consumer protection, however, is not mentioned.
Article 17 allows for additional derogations from the freedom to provide
services, inter alia services of general economic interests (postal services,
electricity, gas, water, treatment of waste), freedom of lawyers to provide
services, judicial recovery of debts, acts requiring by law the involvement of a
notary, statutory audit of annual accounts and consolidated accounts,
registration of vehicles leased in another Member States, and last but not least
(Para 15), provisions regarding contractual and non-contractual obligations,
including the form of contracts, determined pursuant to the rules of private
international law. However, there is no general disclaimer. That is why it seems
as if Articles 16 and 17 have to be read that consumer protection per se may no
longer justify the restrictions of the freedom to provide services 221 .
To avoid misunderstandings: consumer protection here does not mean private
law rules but public law standards on professional qualifications which are
meant to protect the consumer. The formula in van Binsbergen 222 , although
developed with regard to lawyers that are exempted under Article 17 Para 4
anyway, provides guidance on the importance of the policy shift 223 :
“As the Court has repeatedly observed, the application of professional rules to
lawyers, in particular those relating to organization, qualifications, professional
ethics, supervision and liability, ensures that the ultimate consumers of legal
services and the sound administration of justice are provided with the necessary
guarantees in relation to integrity and experience 224 .”
The European Court of Justice underlines the remaining competence of the
Member States to take appropriate measures to ensure that the consumer is
protected against unprofessional behaviour in the performance of services. This
does not mean that the Member States remain entirely free. They may protect
the consumer only within the limits of the proportionality principle 225 .
bb) Impact on standardisation of services
221 This is the reading of Roth, to be published in No. 5 Verbraucher und Recht, 2007.
222 Judgment 3.12.1974, C-33/74, Van Binsbergen vs. Bedrijfsvereniging voor de
Metaalnijverheid, ECR 1974, 1299.
223 Judgment 3.12.1974, C-33/74, Van Binsbergen vs. Bedrijfsvereniging voor de
Metaalnijverheid, ECR 1974, 1299; Judgment 12.12.1996, C-3/95, Reisebüro Broede vs.
Sandker, ECR 1996, I-6511 at 38.
224 See to that effect, the judgments in C-292/86, Gullung vs. Conseils de l'Ordre des Avocats
du Barreau de Colmar et de Saverne, ECR 1988, 111.
225 See Judgment, 25.7.1991, Case 76/90, Säger vs. Dennemeyer, ECR, 1991, I-4221.
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