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

Hans-W. Micklitz
for the increasing risks which results from the open markets for services.
However, not even the professional liability insurances or guarantee is
obligatory. That means Member States may equally decide not to put pressure
on service providers, in order not to discriminate their own national service
providers against the foreign service providers which might benefit from a laxer
policy.
The relationship between the national rules on the liability for the safety of
services and the national rules on professional liability insurances and
guarantees is even more complicated. As there are no European liability rules,
the applicable law will have to be decided by the envisaged Rome II
regulation 227 . This means, in essence, that the differences between the Member
States’ rules on professional liability remain in principle unaffected. The
consumers’ rights will entirely depend on the degree to which the applicable law
protects his or her interests. It has to be recalled that the European Commission
has not systematically investigated national rules on professional liability. The
Service Directive pursues a policy which is in no way based on concrete
knowledge. Possible consequences in differing national legal orders were of
little concern in the legislative process.
However, indirectly the European Commission might affect national liability
rules by way of developing common criteria for establishing equivalence. The
European Commission therefore intends to catch up what it missed during the
preparatory works. Formally the common criteria to be developed do not affect
national rules on professional liability, as the Member States are not legally
obliged to compel service providers to ensure against such professional risks,
but in practice the common criteria might provide ground rules for a future
European law on the liability of services. This is harmonisation of liability for the
safety of services by the back door! The common criteria are not to be
discussed in Parliament and in the Council, as they are not submitted to the
normal law making procedure. The common criteria will be approved in the
comitology procedure, where the European Commission has a key role to play.
dd) Impact on standardisation of services
There is not so much room for standardisation here. The determination of the
equivalence is in the hands of the European Commission and the Member
States. However, European technical standards could provide for professional
liability insurance and/or directly lay down liability rules. European Standards
227 See Chapter II, II, 2.
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