1. Introduction EC consumer law, and to some extent EC ... - ASF

Common Market Law Review 40: 1107–1135, 2003.c© 2003 Kluwer Law International. Printed in the Netherlands.

MINIMUM HARMONIZATION FOR THE COMPLETION OF THE

INTERNAL MARKET? THE EXAMPLE OF CONSUMER SALES LAW

PETER ROTT∗

1. Introduction

EC consumer law, and to some extent EC health law, face a dilemma. TheEC Treaty does not give full competence to the EC for the regulation ofconsumer law or health law. Therefore, almost all consumer law Directiveshave been adopted as internal market measures under Article 95 EC and itspredecessors.1 Article 95 EC has also been used for regulating health-relatedissues.2 The introduction of Articles 152 and 153 EC has not changed therelevance of Article 95 EC in this respect.3

Consequently, directives in these areas (have to) claim to serve thefunctioning of the internal market. Recital 4 of Directive 1999/44/EC onconsumer sales and guarantees even talks of the “completion” of the intern-al market. At the same time, most EC consumer law directives follow theconcept of minimum harmonization,4 and so do some health law direc-

∗ Junior Professor for Private Law, in particular European Private Law, University ofBremen.

1. The only exception is Directive 98/6/EC on the indication of prices, O.J. 1998, L 80/27.2. This is different in environmental law where market-related Directives are based on Art.

95 EC whilst Directives primarily aimed at the protection of the environment are based on Art.175 EC. See e.g. Case C-300/89, Commission v. Council, [1991] ECR I-2867; Case C-155/91,Commission v. Council, [1993] ECR I-939; Case C-187/93, European Parliament v. Council,[1994] ECR I-2857.

3. See e.g. Case C-183/00, Maria Victoria Gonzalez Sanchez v. Medicina Asturiana SA,[2002] ECR I-3901 para 24. See also infra, at 4.

4. See e.g. Art. 7(1) of Directive 84/450/EEC on misleading advertising, O.J. 1984, L250/17, as amended by Directive 97/55/EC on comparative advertising, O.J. 1997, L 290/18;Art. 8 of Directive 85/577/EEC on contracts negotiated away from business premises, O.J.1985, L 372/31; Art. 8 of Directive 93/13/EEC on unfair terms in consumer contracts, O.J.1993, L 95/29; Art. 14(1) of Directive 97/7/EC on distance contracts, O.J. 1997, L 144/19. TheProduct Liability Directive 85/374/EEC, O.J. 1985, L 210/29, forms an exception amongstthe earlier Directives. According to ECJ judgments of April 2002, this Directive fully definesthe balance of interests between producers and consumers, from which Member States areonly permitted to deviate inasmuch the Directive expressly permits so. See Case C-52/00,Commission v. France, [2002] ECR I-3827, para 24, and Case C-154/00, Commission v.Greece, [2002] ECR I-3879, para 20.

1108 Rott CML Rev. 2003

tives.5 For example, Article 8(2) of Directive 1999/44/EC on consumer salesand guarantees6 reads: “Member States may adopt or maintain in force morestringent provisions, compatible with the Treaty in the field covered by thisDirective, to ensure a higher level of consumer protection”. The main reasonfor the concept of minimum harmonization is, of course, that the various ECMember States have great difficulties in finding agreement on the appropriatelevel of protection to be afforded to consumers. Even though the EC Treatyseeks a high level of consumer protection, it does not oblige the EC legislatureto adopt the highest level of consumer protection that can be found in anyparticular Member State.7 The final text of a consumer law directive alwaysrepresents a compromise between Member States, some of whom have moreprotective attitudes whereas others have less. Consequently, those who fol-low a more protective approach wish to reserve their legislative freedom toadopt or maintain a higher level of protection. In this respect, the inclusionof minimum harmonization clauses was needed to allow the EC legislatureto secure the adoption of EC consumer law measures.8

However, the situation is changing. More recent Directives, such as Dir-ectives 2000/31/EC on electronic commerce9 and 2002/65/EC on distancemarketing of financial products10 have expressly been adopted as total har-monization Directives.11 The aim of a “high common level of consumer pro-tection” has also been expressed in the Community consumer policy strategyfor 2002 to 2006,12 with further detail in the related Communication by the

5. See, in particular, Art. 5 of the annulled Directive 98/43/EC on advertising and spon-sorship of tobacco products, O.J. 1998, L 213/9, and Art. 13 (2) of Directive 2001/37/ECconcerning the manufacture, presentation and sale of tobacco products, O.J. 2001, L 194/26.Environmental law Directives based on Art. 95 EC, in contrast, are all total harmonizationDirectives. See infra, at 4.

6. Directive 1999/44/EC on certain aspects of the sale of consumer goods and associatedguarantees, O.J. 1999, L 171/12.

7. See Case C-233/94, Germany v. European Parliament and Council, [1997] ECR I-4205,para 48. See also Case C-52/00, Commission v. France, [2002] ECR I-3827, Opinion of A.G.Geelhoed, para 55, note 10.

8. See e.g. Micklitz, “Zur Notwendigkeit eines neuen Konzepts fur die Fortentwicklungdes Verbraucherrechts in der EU”, (2003) Verbraucher und Recht, 2 at 7.

9. Directive 2000/31/EC on electronic commerce, O.J. 2000, L 178/1.10. Directive 2002/65/EC on the distance marketing of consumer financial services, O.J.

2002, L 271/16.11. See also Art. 30(1) of the proposal for a new Directive on credit for consumers, O.J.

2002, C 331 E/200. The new Directive 2003/33/EC on advertising and sponsorship of tobaccoproducts, O.J. 2003, L 152/16, does not provide for a minimum harmonization clause either.Instead, Art. 8 guarantees the free movement of goods and services that comply with theDirective.

12. Council Resolution on Community consumer policy strategy 2002–2006, O.J. 2003, C11/1, at I. Emphasis added.

Minimum harmonization 1109

Commission.13 The reason given for this recent approach is that total har-monization serves the purposes of the internal market better than minimumharmonization since the latter still allows for different sets of rules in theMember States.

This leads us back to the old question: to what extent does the internalmarket approach allow for the adoption of minimum harmonization directivesand the existence of related incoherence of national rules even after theirimplementation. Unlike other EC competences, such as Article 137(2)(b) ECon the protection of workers, Article 95(1) EC does not explicitly mentionthe adoption of minimum requirements. In contrast, the availability of specialrules in Article 95(4) and (5) EC may indicate that, generally speaking, totalharmonization should be the way towards the establishment and functioningof the internal market. Related to this is the fact that the diversity of privatelaw rules has been identified, by the Commission, as an obstacle to trade,14

which triggers the question as to whether Article 28 EC limits the MemberStates’ freedom to make use of minimum harmonization clauses.

In light of the above, this article explores how much freedom minimumharmonization clauses give or are able to give to the Member States to affordconsumers a higher level of protection than is actually required. With an eyeon recent ECJ case law, this article argues that the Member States’ right toadopt or maintain more stringent legislation in favour of the protection of theconsumer does not extend to the core provisions of internal market directives,such as Article 2 and 3 of Directive 1999/44/EC on the conformity of goodswith the contract and on remedies.15 Building on these considerations, theauthor offers some reflections on the future balance between harmonizationfor the completion of the internal market and diverging national protectionconcepts in EC consumer law.

2. Limitations by the EC Treaty

As Article 8(2) of Directive 1999/44/EC explicitly states, Member States mayonly adopt or maintain more stringent provisions where they are “compatible

13. Commission’s Communication on Consumer Policy Strategy 2002–2006, O.J. 2002, C137/2, at 3.1.

14. Proposal for a Directive on the sale of consumer goods and associated guarantees,COM(95)520 final, 25 and 27. See also Micklitz, “Ein einheitliches Kaufrecht fur Verbraucherin der EG?”, (1997) EuZW, 229 at 237.

15. It should be mentioned at the outset that these two aspects of Directive 1999/44/EC,the conformity test and the remedies, pose different harmonization questions: in the case ofthe “conformity” of goods, the issue of a harmonized interpretation of the ground for legalaction is addressed, whereas in the case of the set of remedies, the Member States’ freedom ofaffording a higher level of consumer protection concerning the legal consequences is at stake.


with the Treaty”. Such a reference to compatibility with the Treaty, whilstself-evident,16 has been introduced into some of the more recent consumerlaw Directives whereas it was not part of earlier minimum harmonizationclauses.17 Limitations to the adoption or maintenance of more stringent pro-visions can, in particular, result from the free movement of goods, Article 28EC,18 but possibly also from the competence rule of Article 95 EC.

2.1. The free movement of goods, Article 28 EC

Since consumer sales law regulates cross-border trade in goods, rules that gobeyond the level of consumer protection as required by Directive 1999/44/ECmay have to be tested against Article 28 EC.

2.1.1. ECJ case law on minimum harmonization and the four freedomsThe fundamental freedoms, and especially the free movement of goods, havereceived a great deal of attention in the context of ECJ case law on misleadingadvertising. Like Directive 1999/44/EC, Directive 84/450/EEC on misleadingadvertising includes a minimum harmonization clause, in Article 7(1). In anumber of cases – most of them from Germany, which probably used to havethe most protective system of advertising law – the question arose how muchprotection Member States were allowed to afford to consumers. Disputescentred around the consumer image towards which Member States shoulddirect their protective measures. In a number of cases, national courts hadregarded advertising, often in the form of packaging or labelling, as having thepotential to mislead consumers and had therefore prohibited such advertising.

The ECJ took a more restrictive view and interpreted “misleading” as mean-ing misleading to the “average consumer”, whom the ECJ described as beingreasonably well informed and reasonably observant and circumspect.19 This

16. See e.g. Pfeiffer, “Richtlinie 93/13/EWG des Rates uber missbrauchliche Klauseln inVerbrauchervertragen”, in Grabitz and Hilf (Eds.), Das Recht der Europaischen Union, vol.III, A 5, Art. 8, at 20.

17. See also Klauer, “General clauses in European Private Law and ‘stricter’ nationalstandards: The Unfair Terms Directive”, (2001) European Review of Private Law (hereafter:ERPL), 187 at 202.

18. See Case C-322/01, Deutscher Apothekerverband e.V. v. 0800 DocMorris NV andJacques Waterval, Opinion of A.G. Stix-Hackl of 11 March 2003, nyr, para 51, with respect toArt. 14 of Directive 97/7/EC. See also Staudenmayer, “The Directive on the Sale of Con-sumer Goods and Associated Guarantees – a Milestone in the European Consumer andPrivate Law”, (2000) ERPL, 547 at 562; Grundmann, in Grundmann and Bianca (Eds.), EU-Kaufrechtsrichtlinie (Dr. Otto Schmidt, 2002), Art. 8, para 12; Oughton and Willett, “QualityRegulation in European Private Law”, 25 Journal of Consumer Policy (2002), 299 at 301.

19. Case C-112/99, Toshiba Europe GmbH v. Katun Germany GmbH, [2001] ECR I-7945,para 52; Case C-44/01, Pippig Augenoptik GmbH & Co. KG v. Hartlauer Handelsgesellschaft


is a consumer image that the ECJ applied to Article 28 EC20 as well as toa number of pieces of secondary legislation which all prohibit actions thatmay mislead a consumer.21 In this context, it is noteworthy that most of thesemeasures have been held to be total harmonization measures.22 Therefore,the ECJ merely had to interpret the relevant provisions of EC law prohib-iting actions which may mislead a consumer. In contrast, one might haveexpected that the minimum harmonization clause of Article 7(1) of Directive84/450/EEC would make a difference. However, notwithstanding the min-imum harmonization character of Directive 84/450/EEC, the ECJ did nothesitate to apply the usual test under Article 28 EC (ex 30) and to argue thata more protective national interpretation of “misleading”, or similar notions,constitutes an obstacle to the free movement of goods which cannot be jus-tified on the grounds of consumer protection.23 In summary, one could referto the Opinion of A.G. Jacobs in Warsteiner. He first established that thegeographical indication “Warsteiner”, which refers to a small town in Ger-many, was not misleading to the consumer, even though the beer in questionwas not brewed in Warstein. Thus, the prohibition of using the indication“Warsteiner” could not be justified as a measure that was necessary for theprotection of consumers, under Article 28 EC. Nor could this notion “mis-

mbH, judgment of 8 Apr. 2003, nyr, para 55. Usually, national courts should be able to assess anymisleading effect without ordering an expert’s report or commissioning a consumer researchpoll, see Case C-210/96, Gut Springenheide GmbH and Rudolf Tusky v. Oberkreisdirektordes Kreises Steinfurt, [1998] ECR I-4657, para 30. Only in exceptional cases does the ECJnot require a purely normative approach but allows Member States’ courts to base theirdecisions on empirical data where a case is particularly difficult to decide. See e.g. CaseC-373/90, Criminal proceedings against X, [1992] ECR I-131, para 15; Gut Springenheide,para 37; Case C-220/98, Estee Lauder Cosmetics GmbH & Co. OHG v. Lancaster GroupGmbH, [2000] ECR I-117, para 31. See also Roth, “Zur Tragweite der Harmonisierung imRecht des unlauteren Wettbewerbs”, in Immenga, Moschel and Reuter (Eds.), Festschrift furErnst-Joachim Mestmacker (Nomos, 1996), p. 725 at 726 et seq.; Weatherill, “Recent caselaw concerning the free movement of goods: Mapping the frontiers of market deregulation”,36 CML Rev., 51 at 56 et seq.; Stuyck, “European consumer law after the Treaty of Amsterdam:Consumer policy in or beyond the Internal Market?”, 37 CML Rev., 367 at 391–2; Westermann,“Bekampfung irrefuhrender Werbung ohne demoskopische Gutachten”, (2002) GewerblicherRechtsschutz und Urheberrecht, 403 et seq.

20. See Case C-470/93, Verein gegen Unwesen in Handel und Gewerbe Koln e.V. v. MarsGmbH, [1995] ECR I-1923, para 24.

21. See Gut Springenheide, supra note 19, para 31, concerning Regulation (EC) No. 1907/90on certain marketing standards for eggs; Estee Lauder, supra note 19, para 30, concerning Dir-ective 76/768/EEC on cosmetic products. See also Case C-218/01, Henkel KGaA v. DeutschesPatent- und Markenamt, Opinion of A.G. Ruiz-Jarabo Colomer of 14 Jan. 2003, nyr, para 19 etseq., on trademark law, and Case C-303/97, Verbraucherschutzverein e.V. v. Sektkellerei G.C.Kessler GmbH & Co. KG, [1999] ECR I-513, Opinion of A.G. Fennelly, para 33, concerningRegulation (EEC) No 2333/92 on the description and presentation of sparkling wines.

22. This applies to Directive 76/768/EEC, see Estee Lauder, supra note 19, para 23, withfurther references.

23. See e.g. Mars, supra note 20. See also Klauer, supra note 17, 187 at 208 et seq.


lead” the consumer in the terms of Article 2(1)(a) of Directive 79/112/EEC onlabelling, presentation and advertising of foodstuffs,24 a total harmonizationmeasure.25 Then he turned to Directive 84/450/EEC, stressing that this Dir-ective explicitly permitted a higher level of consumer protection.26 He arguedthat, therefore, the Directive did not in itself prevent Member States fromadopting more stringent rules. However, those rules have to be tested againstArticle 28 EC. As a result, the outcome is just the same as under Directive79/112/EEC.27 Thus, the minimum harmonization clause does not appear tomake a difference where the ground for action “misleading advertising” isconcerned.28

2.1.2. Contract law and the free movement of goodsEssentially, this case law aims at harmonizing market access rules. Someauthors have argued that such an approach should also be applied to ECconsumer contract law. With respect to the unfair contract terms Direct-ive 93/13/EEC, it was argued that the standard of fairness to be observedunder Article 3 should be interpreted with regard to a reasonable averageconsumer,29 and Article 28 EC could also play a role in consumer sales law.

Whether or not contract law rules are capable of violating Article 28 EChas been subject to controversial discussion.30 The ECJ has merely touched

24. Directive 79/112/EEC on labelling, presentation and advertising of foodstuffs for saleto the ultimate consumer, O.J. 1979, L 33/1.

25. See Case C-312/98, Schutzverband gegen Unwesen in der Wirtschaft e.V. v. WarsteinerBrauerei Haus Cramer GmbH & Co. KG, [2000] ECR I-9187, Opinion of A.G. Jacobs, para59, 63, 64.

26. Ibid., para 65. The ECJ did not even mention Directive 84/450/EEC in its judgment.See also Pippig Augenoptik, supra note 19, Opinion of A.G. Tizzano of 12 Sept. 2002, nyr,para 47, who emphasizes that Member States have the right to use a more restrictive notionof misleading advertising than the Directive does, without offering an idea as to how sucha notion could be more restrictive and still in line with Art. 28 EC. An example may beGerman case law on § 3 of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbe-werb, UWG) according to which a reasonably well-informed and reasonably observant andcircumspect consumer may not always focus his awareness on advertising and may thereforebe a fleeting consumer in certain situations. See e.g. judgment of 20 Dec. 2001, Bundesge-richtshof, (2002) Gewerblicher Rechtsschutz und Urheberrecht, 715. For an analysis of recentGerman case law see Michel, “Ungleichgewicht einzelner Angaben bei der Blickfangwerbungam Beispiel der Entscheidungen ‘Einzelteil-Raumung’, ‘Orient-Teppichmuster’ kontra ‘Com-puterwerbung’ – Auswirkungen des europaischen Verbraucherbildes auf die Grundsatze derBlickfangwerbung”, (2002) Wettbewerb in Recht und Praxis, 389 et seq.

27. Ibid., para 65.28. See also Micklitz, in Reich and Micklitz, Europaisches Verbraucherrecht, 4th ed. (No-

mos, 2003), 312 et seq., with further references. See, in contrast, the analysis by Roth, supranote 19, 725 at 736 et seq.

29. See Heinrichs, “Das Gesetz zur Anderung des AGB-Gesetzes”, (1996) NJW, 2190 at2197; Klauer, supra note 1, 187 at 200 et seq.

30. See e.g. Roth, “Die Freiheiten des EG-Vertrages und das nationale Privatrecht”,(1994) Zeitschrift fur Europaisches Privatrecht, 5 et seq.; Remien, “Grenzen der gericht-


on this issue. In CMC Motorradcenter, the ECJ rejected the idea that pre-contractual information obligations imposed on the parties by German lawobstructed the free movement of goods.31 However, according to establishedECJ case law, any rule capable of hindering directly or indirectly, actuallyor potentially, intra-Community trade constitutes a measure having an effectequivalent to a quantitative restriction and therefore violates Article 28 EC.32

In this context, it must be remembered that Article 28 EC guaranteestraders free access to the market in all Member States.33 Clearly, differentnational rules concerning the conformity of goods with the contract forceforeign traders to adjust to different consumer expectations, and possibly tosell goods of different qualities throughout the EC.34 In Alsthom Atlantique,the ECJ mentioned in passing that traders could avoid such difficulties byincluding a choice of law clause for their own laws.35 This way is, however,seriously restricted in the field of consumer law where it is not possible toderogate from the mandatory provisions of the law of the consumer.36 Thus,national consumer sales law is, in principle, capable of violating Article 28EC.37

However, since Keck, the ECJ has distinguished between product-relatedrules and selling arrangements. Only the first category of measures is heldto come under Article 28 EC, whereas the second category of measures

lichen Privatrechtsangleichung mittels der Grundfreiheiten des EG-Vertrages”, (1994) Juristen-Zeitung, 349 et seq.; Mulbert, “Privatrecht, die EG-Grundfreiheiten und der Binnenmarkt”, 159Zeitschrift fur das gesamte Handelsrecht (1995), 2 et seq.; von Wilmowsky, “EG-Freiheitenund Vertragsrecht”, (1996) Juristen-Zeitung, 590 et seq.; Herwig, Der Gestaltungsspielraumdes nationalen Gesetzgebers bei der Umsetzung von europaischen Richtlinien zum Verbrau-chervertragsrecht (Peter Lang, 2002), pp. 104 et seq.

31. Case C-93/92, CMC Motorradcenter GmbH v. Pelin Baskiciogullari, [1993] ECR I-5009, para 11.

32. See Case 8/74, Procureur du Roi v. Benoıt and Gustave Dassonville, [1974] ECR 837;CMC, supra note 31, para 9.

33. Opinion in DocMorris, supra note 18, para 74. See also Reich, in Reich and Micklitz,Europaisches Verbraucherrecht, 4th ed. (Nomos, 2003), p. 52.

34. See also Pfeiffer, supra note 16, Art. 8, at 22; Langner, “Das Kaufrecht auf dem Prufstandder Warenverkehrsfreiheit des EG-Vertrages”, 65 Rabels Zeitschrift fur auslandisches undinternationales Privatrecht (2001), 222 at 232.

35. Case C-384/93, Alsthom Atlantique SA v. Compagnie de construction mecanique SulzerSA, [1991] ECR I-107, para 15. See also Grundmann, “Europaisches Handelsrecht”, 163Zeitschrift fur das gesamte Handelsrecht (1999), 635 at 656 et seq.

36. See e.g. Art. 7(2) of Directive 1999/44/EG, and, more generally, Art. 5 of the RomeConvention on the law applicable to contractual obligations. See also Roth, “Der Einfluß desEuropaischen Gemeinschaftsrechts auf das Internationale Privatrecht”, 55 Rabels Zeitschriftfur auslandisches und internationales Privatrecht (1991), 623 at 652 et seq.; Grundmann,supra note 18, Einl., para 18.

37. This appears to be implied by, e.g., Staudenmayer, supra note 18, 546 at 562; Oughtonand Willett, supra note 18, 299 at 301. See also von Wilmowsky, supra note 30, 590 at 592.More cautious is Remien, supra note 30, 349 at 351.


does not constitute an obstacle to trade as long as it applies to all traderswithout discrimination.38 The existence of a “third category” of measures39

has recently been rejected by A.G. Stix-Hackl, who also clarified the dis-tinction between product-related rules and selling arrangements.40 Product-related rules are rules that lay down requirements to be met by goods, such asthose relating to designation, form, size, weight, composition, presentation,labelling, packaging. Generally speaking, national rules that impose addition-al costs on imported goods cannot be excluded from the scope of applicationof Article 28 EC.41 This applies primarily but not exclusively to national rulesthat require the adjustment of the properties of goods or their appearance.42

Furthermore, differing national contract law rules induce information coststhat may disadvantage foreign traders.43 In fact, the Commission argued inthe first proposal for a Consumer Sales Directive that a harmonized systemshould reduce the traders’ expenses for investigating the relevant nationallaws, in order to adjust their marketing strategies accordingly.44 This argu-ment is now being reiterated for justifying the need for a European contractlaw.45 Information obligations that are not physically attached to goods, asin CMC Motorradcenter, would not appear to be product-related. In contrast,national laws on the quality that is required of goods with a view to their con-formity with the contract are certainly product-related since they determinethe primary obligations of the seller.46 Under the Keck test, they thereforequalify for the application of Article 28 EC.

National rules on contractual liability do not sit easily in either category.In Alsthom Atlantique, it was discussed whether the strict French liabilityrules (action directe) violated Article 29 EC because they disadvantagedFrench exporters as compared with traders from other Member States. TheECJ has not answered the question.47 Different liability rules may have an

38. Joined Cases C-266 & 267/91, Criminal proceedings against Bernard Keck and DanielMithouard, [1993] ECR I-6097, with a case note by Roth, 31 CML Rev. (1994), 845 et seq.For a summary see Opinion in DocMorris, supra note 18, paras. 58 et seq.

39. See e.g. Mulbert, supra note 30, at 18.40. See Opinion in DocMorris, supra note 18, para 60.41. See Opinion in DocMorris, supra note 18, para 63. See also Mulbert, supra note 30, at

21.42. Opinion in DocMorris, supra note 18, para 63.43. See, however, the scepticism expressed by Roth, supra note 30, at 28.44. First proposal, COM(95)520 final, 25 and 27. See also Micklitz, supra note 14, at 237.45. See the Communication on European Contract Law, COM(2001)398 final, 9, and the

Communication “A More Coherent European Contract Law”, COM(2003)68 final, 11 et seq.See also Staudenmayer, “The Commission Communication on European Contract Law: Whatfuture for European Contract Law?”, (2002) ERPL, 249 at 254–5.

46. The primary obligations appear to be attributed some relevance by Mulbert, supra note30, at 24.

47. Case C-384/93, Alpine Investments BV v. Minister van Financien, [1995] ECR I-1141.


impact on intra-Community cross-border trade, not least because they maycause different insurance premiums.48 Nevertheless, they do not relate to thequality of the product, and thus do not appear to be product-related, underthe Keck test.49 Article 28 EC therefore catches rules that relate to productquality, whereas rules on liability will usually fall outside its scope.

2.1.3. More stringent provisions or different provisions?Article 8(2) of Directive 1999/44/EC allows for more stringent national legis-lation “in the field covered by this Directive”. This expression refers to thescope of application of Directive 1999/44/EC.

The relationship between minimum harmonization clauses and the scopeof application of EC secondary legislation has not yet been elaborated veryclearly in ECJ case law. The leading case seems to be di Pinto which wasdecided under the Doorstep Selling Directive 85/577/EEC. In di Pinto, theFrench Cour de Cassation had referred the question to the ECJ as to whetherFrench law could protect a trader who was canvassed for the purpose ofconcluding an advertising contract concerning the sale of his business. TheECJ held that such a businessman was not to be considered a consumereven though this particular contract was not his usual business. Therefore,Directive 85/577/EEC did not protect him. Nevertheless, the ECJ held thatthe Directive did not prevent Member States from protecting traders fromdoorstep selling if they wished to do so. This, however, was not a questionof the minimum harmonization clause of Article 8 of Directive 85/577/EEC.Rather, the Directive did not apply at all to the instant case since the Frenchscenario fell outside the scope of application of the Directive.50

Conversely, one might question whether the Misleading Advertising Dir-ective 84/450/EEC does apply at all to advertising that is not misleading,under the definition of Article 2(2) of the Directive as interpreted by theECJ. In other words, one could consider advertising that does not mislead theaverage consumer but merely consumers who are more easily deceived thanthe average consumer (sometimes referred to as “vulnerable consumers”)as falling outside the scope of application of Directive 84/450/EEC.51 Con-sequently, Article 7(1) of Directive 84/450/EEC would not apply. This view

48. See Reich, supra note 33, 62.49. See also Reich, supra note 33, 62, and the contrasting opinion of Langner, supra note

34, at 232.50. Case C-361/89, Criminal proceedings against Patrice di Pinto, [1991] ECR I-1189,

paras. 15 et seq.51. This interpretation may find support in Case C-373/90, Criminal proceedings against

X, [1992] ECR I-131, Opinion of A.G. Tesauro, para 10, where he stated: “It is not a questionof specific measures aimed at consumer protection, but of the interpretation of the generaldefinitions given by the directive . . . ”. See also Case C-71/02, Herbert Karner Industrie-Auktionen GmbH v. Troostwijk GesmbH, Opinion of A.G. Alber of 8 Apr. 2003, nyr, para 36,


finds support in the wording of Article 7(1) that refers to “more extensiveprotection, with a view to misleading advertising”.52 It is highly unlikely thatthe notion of “misleading advertising” in Article 7(1) should not be identicalwith the definition given in Article 2(2) of Directive 84/450/EEC. Thus, acase in which Member States protect consumers beyond what is adequatefor the average consumer would come directly under the Treaty rules on thefree movement of goods, Article 28 EC, and the free movement of services,Article 49 EC. Indeed, in Pall, the ECJ argued that Directive 84/450/EECestablishes minimum objective criteria for determining whether advertisingis misleading and that the contested national measure found no justification inthis Directive, without even mentioning the minimum harmonization clauseof Article 7.53

Equally, one could argue that the Unfair Contract Terms Directive93/13/EEC only applies to terms that are unfair, under Article 3. And therules of Directive 1999/44/EC would only apply to goods that are not inconformity with the contract, under Article 2. Again, the minimum harmon-ization clauses of Article 8 of Directive 93/13/EEC and of Article 8(2) ofDirective 1999/44/EC would be irrelevant as far as the grounds for action areconcerned. This argument presupposes, of course, that the notion of unfair-ness and the notion of conformity with the contract have been harmonizedby Directives 93/13/EEC and 1999/44/EC and are therefore not open to moreprotective interpretation by the Member States. For Directive 93/13/EEC, thiscan be inferred from Oceano, where the ECJ undertook to interpret Article3 of Directive 93/13/EEC with reference to a jurisdiction clause.54 Generallyspeaking, the ECJ interprets general clauses autonomously unless a Directiveexplicitly refers to the Member States’ own interpretation.55 In the contextof Directive 1999/44/EC, recitals 14, 15 and 18 deserve attention. Accordingto these recitals, the Member States’ rules on the passing of the risk, on theeffect on the reimbursement of the consumer’s use of the delivered goods, andon suspension or interruption of limitation periods remain unaffected by theDirective. From this, it can be deduced that the other terms used by Directive

where he stated that the protection of consumers from abstract dangers was not subject ofDirective 84/450/EEC.

52. Emphasis added.53. Case C-238/89, Pall Corp. v. P.J. Dahlhausen & Co. [1990] ECR I-4827, para 22.54. Case C-240/98 to C-244/98, Oceano Grupo v. Murciano Quintero and others, [2000]

ECR I-4941. See also Remien, “Die Vorlagepflicht bei Auslegung unbestimmter Rechtsbe-griffe”, 66 Rabels Zeitschrift fur auslandisches und internationales Privatrecht (2002), 503 at519.

55. See e.g. Case 327/82, Ekro B.V. Vee- en Vleeshandel v. Produktschap voor Vee en Vlees,[1984] ECR 107, para 11; Case C-287/98, Luxembourg v. Berthe Linster, Aloyse Linster undYvonne Linster, [2000] ECR I-6917, para 43; Case C-357/98, The Queen v. Secretary of Statefor the Home Department, ex parte Nana Yaa Konadu Yiadom, [2000] ECR I-9265, para 26.


1999/44/EC, including those on the conformity of goods with the contract,are to be interpreted autonomously by the ECJ.56 This is despite the fact thatthe conformity test of Article 2 of Directive 1999/44/EC has a lot of flexibilitysince it, at least, provides for the criteria to be taken into account when sellinggoods. One may recall that the concept of misleading advertising is similarlyflexible, and still the ECJ has found that the interpretation given to this bysome national decisions went beyond the intentions of Directive 84/450/EECand, therefore, constituted an obstacle to trade.

In summary, national measures that do not deal with the sale of consumergoods and those that are not related to the conformity of goods with thecontract under the test of Article 2 of Directive 1999/44/EC do not comeunder Article 8(2) of the Directive. This latter provision merely applies tonational measures within the scope of Directive 1999/44/EC, such as theremedies system or time periods.

2.1.4. A wider scope of application and Article 28 ECThe question would then be whether Member States can justify nationalprovisions that protect the consumer from clauses that EC law does notconsider to be unfair, and from goods that EC law regards as in conformitywith the contract. In the light of ECJ case law on (not) misleading advertising,this appears to be unlikely.57 Thus, it would seem unlikely that absolute (ratherthan flexible) quality standards could be in compliance with Article 2 ofDirective 1999/44/EC. Furthermore, some of the issues dealt with in Article2 of Directive 1999/44/EC show a lot of similarity with the law on misleadingadvertising. According to Article 2(2)(d), goods have to “show the qualityand performance which are normal in goods of the same type and which theconsumer can reasonably expect, given the nature of the goods and takinginto account public statements on the specific characteristics of the goodsmade about them by the seller, the producer or his representative, particularlyin advertising or on labelling”.58 What the consumer may rely on may varydue to the circumstances of the contract but their relevance surely depends onthe consumer image Directive 1999/44/EC is based on. Most probably, theECJ would apply the same consumer image of a reasonably well-informedand reasonably observant and circumspect consumer to Directive 1999/44/EC

56. For an autonomous interpretation of the conformity test and the rules on remedies, seealso Oughton & Willett, supra note 18, 299 at 304, and Weatherill, “Consumer Guarantees”,110 Law Quarterly Review (1994), 545 at 547.

57. See also Case C-382/87, R. Buet and Educational Business Services (EBS) v. MinisterePublic, [1989] ECR 1235. In this case, the ECJ held that the consumer protection mechanismsprovided by the Doorstep Selling Directive 85/577/EEC were normally sufficient to protect theconsumer, although in this particular case, consumer purchasers of educational material mighthave been particularly vulnerable since they might have been behind with their education.

58. Emphasis added.


that appears in the ECJ judgments on misleading advertising.59 Equally, thisconsumer image may apply to Article 2(3) of Directive 1999/44/EC accordingto which there shall be deemed not to be a lack of conformity if, at the time thecontract was concluded, the consumer was aware, “or could not reasonablybe unaware”60 of, the lack of conformity. Transposing the ECJ’s reasoning inthe advertising cases to Article 2 of Directive 1999/44/EC, one may concludethat it would run counter of Article 28 EC to grant further protection toconsumers under Article 2(2)(d) and (3) of Directive 1999/44/EC because theEC legislature has decided not to protect consumers who have unreasonableexpectations.61

Thus, consumer contract law Directives do not only set minimum standardsfor the protection of consumers but they also define the grounds in whichaction in favour of the consumer is justified. The Member States’ freedomunder the minimum harmonization clauses of the relevant Directives is limitedto regulating the legal consequences once action is justified, for example,because a term of a consumer contract is unfair or because goods are not inconformity with the contract.

2.1.5. More stringent rules and Article 28 ECIn contrast, more stringent rules within the scope of application wouldcome under the minimum harmonization clause of Article 8(2) of Direct-ive 1999/44/EC. Still, such more stringent rules have to be tested againstArticle 28 EC, as Article 8(2) of the Directive clarifies. However, the mereexistence of the minimum harmonization clause demonstrates that the Mem-ber States have some discretion in granting a higher level of protection toconsumers, provided that there are no other restrictions in place.62 Thus, onlyexcessive rules that make the importation of goods into the Member Statein question overly burdensome, for example, because insurance premiumswould be unaffordable, would probably exceed the boundaries set by Article28 EC.

2.1.6. ConclusionAs far as the free movement of goods is concerned, one has to distinguishbetween the grounds of action, and their legal consequences.Whilst Article 28

59. See also Bernreuther, “Sachmangelhaftung durch Werbung”, (2002) Wettbewerb inRecht und Praxis, 368 at 371–3; Weiler, “Haftung fur Werbeaussagen nach neuem Kaufrecht”,(2002) Wertpapier-Mitteilungen, 1784 at 1790.

60. Emphasis added.61. See also the deviating opinion of Augenhofer, “Bedeutung von Werbeaussagen – sowohl

des Verkaufers als auch des Herstellers – fur die Begrundung von Gewahrleistungsrechten”,(2001) Juristische Blatter, 82 at 85, who relies on Art. 8(2) of Directive 1999/44/EC, and,more generally, of Roth, supra note 30, at 32–33.

62. See infra, at 2.2.


EC would seem to limit the Member States’ discretion in offering protectionto consumers where EC secondary law does not recognize a ground foraction, the minimum harmonization clauses, such as Article 8(2) of Directive1999/44/EC, allow for more stringent provisions on the legal consequences,so long as the national rules are not excessive.

2.2. The internal market competence, Article 95 EC

Restrictions to the Member States’ freedom to adopt more stringent provisionsfor the protection of consumers might also arise from the legal basis of theDirective concerned.

The afore-mentioned EC Directives are all based on Article 95 EC and itspredecessors, Article 100a EC and Article 100 EEC. Under Article 95 EC, theEC may adopt measures for the approximation of the provisions laid down bylaw, regulation or administrative action in Member States which have as theirobject the establishment and functioning of the internal market. Accordingto Article 95(3) EC, the Commission should take as a base a high level ofconsumer protection when proposing a measure, and Article 153 EC hasextended this duty to the Community.63 The internal market is characterized,according to Article 3(1)(c) EC, by the abolition, as between Member States,of all obstacles to the free movement of goods, persons, services and capital.That market is to comprise an area without internal frontiers in which the freemovement of goods, persons, services and capital is ensured in accordancewith the provisions of the Treaty, Article 14 EC. Taking Article 3(1)(c) andArticle 14 EC into account, it is obvious that measures taken under Article95 EC must be intended to improve the establishment and functioning of theinternal market.64 In recent ECJ case law, there is evidence that this implies acertain degree of harmonization, disallowing EC Directives that fail to reachsuch degree of harmonization.

This became apparent in the tobacco advertising case, Germany v. EuropeanParliament and Council. According to the ECJ, the measures referred to in(ex-)Article 100a EC must genuinely have that object, actually contributing tothe elimination of obstacles to the free movement of goods or to the freedom toprovide services, or to the removal of distortions of competition.65 Recently,

63. See Stuyck, supra note 19, at 379.64. See Case C-376/98, Germany v. European Parliament and Council (tobacco advert-

ising), [2000] ECR I-8419, para 82.65. Tobacco advertising, cited supra note 64, paras. 84 and 95. See also Weatherill, “The

European Commission’s Green Paper on European Contract Law: Context, content and consti-tutionality”, 24 Journal of Consumer Policy (2001), 339 at 363 et seq.; Howells, “Federalismin USA and EC – The scope for harmonised legislative activity compared”, (2002) ERPL, 601et seq.


the ECJ confirmed the boundaries of Article 95 EC in the new tobacco caseof British American Tobacco and Imperial Tobacco.66 Thus, a measure takenunder Article 95 EC must be designed to prevent actual or future obstaclesto trade. In Germany v. European Parliament and Council, the ECJ founda number of reasons why Directive 98/43/EC did not sufficiently contributeto the establishment and the functioning of the internal market. One of themwas the minimum harmonization clause in Article 5 of Directive 98/43/EC.Related to this was the problem that the Directive did not guarantee the freemovement of goods conforming to its provisions.67 This may indicate thatthe Maastricht Treaty with its focus on the internal market has changed thecompetence system of the EC Treaty in emphasizing the harmonization ofthe Member States’ laws,68 and that a directive which provides for too low adegree of harmonization does not sufficiently contribute to the establishmentand functioning of the internal market and cannot therefore be based onArticle 95 EC.69

Further evidence can be found in the package travel case of Leitner. Thequestion at stake was whether the traveller’s right to damages in Article 5 ofDirective 90/314/EEC included the right to claim damages for non-materiallosses. Whilst some Member States argued that the vagueness of Article 5indicated that the answer should be left within the competence of the MemberStates, the ECJ opted for a harmonized interpretation of Article 5 that includeddamages for immaterial losses. One of the reasons for this conclusion wasthat the Directive was based on Article 100a EEC (now 95 EC) and that itwas therefore aimed at eliminating the disparities between the national lawsand practices of the various Member States in the area of package holidays.The ECJ stated: “It is not in dispute that, in the field of package holidays, theexistence in some Member States but not in others of an obligation to providecompensation for non-material damage would cause significant distortionsof competition, given that, as the Commission has pointed out, non-materialdamage is a frequent occurrence in that field.”70 Again, one might ask whether

66. Case C-491/01, The Queen v. Secretary of State, ex parte British American Tobacco(Investments) Limited and Imperial Tobacco Limited, [2002] ECR I-11453, para 60.

67. Tobacco advertising, cited supra note 64, paras. 103, 104.68. See, however, Roth, supra note 19, at 740, who claims that even a minimum harmoniz-

ation measure narrows the gaps between the Member States’ laws and therefore contributes tothe establishment and the functioning of the internal market.

69. Subsequently, it was suggested that the Doorstep Selling Directive 85/577/EEC wasanother candidate for invalidity, see Roth, “Europaischer Verbraucherschutz und BGB”, (2001)Juristen-Zeitung, 475 at 477; Weatherill, supra note 6, at 369. Indeed, this Directive hasachieved very little harmonization of the Member States’ doorstep selling laws, see Rott, DieUmsetzung der Hausturwiderrufsrichtlinie in den Mitgliedstaaten (Nomos, 2000).

70. Case C-168/00, Simone Leitner v. TUI Deutschland GmbH & Co. KG, [ECR] 2002I-2631, para 21. Annotated by Roth in 40 CML Rev., 937–951. See also the critical commentby Remien, supra note 54, at 528.


a Directive that made no attempt to harmonize the core issue of damages fordefective holidays could have been based on the internal market provision ofArticle 100a EEC (now Art. 95 EC).

In EC consumer law, two mechanisms for making the internal market workare present: reducing transaction costs for traders,71 and increasing the con-sumers’ confidence.72 With a view to recitals 2, 4, 5 and 6, it becomes clearthat Directive 1999/44/EC on consumer sales and guarantees predominantlyemphasizes the creation or increase of the consumers’ confidence in buyingabroad.73 The EC legislature relied on studies that had identified the lack ofconsumers’ confidence as one major obstacle to cross-border trade.74 How-ever, another goal named in Directive 1999/44/EC is facilitating competitionbetween sellers.75 The Commission’s Green Paper referred to a poll of 1991according to which 53% of the consumers questioned mentioned difficultiesin having goods replaced or repaired as obstacles to shopping abroad, and con-cluded that harmonization of consumer sales law would remove an obstacleto the completion of the free market so that the EC had the competence,under what is now Article 95 EC, to adopt a Directive on consumer saleslaw.76 Most authors agree to this approach.77 Others have raised doubts asto whether Directive 1999/44/EC could be based on Article 95 EC.78 Someauthors argue that the stated purpose of the Directive – to increase the con-sumers’ confidence in shopping abroad – is unrealistic since there are furtherbarriers such as language barriers or difficulties in the settlement of disputesthat will still prevent cross-border shopping,79 and indeed the assumptionthat minimum harmonization of consumer law will lead to an increase inconsumer cross-border shopping does not seem to have been based on sci-entific evidence.80 The consumer poll the Commission quoted apparently did

71. See Wagner, “The economics of harmonization: The case of contract law”, 39 CMLRev., 995, at 1014.

72. See Tenreiro, “Guarantees and After-Sales Service: Brief Analysis of the Green PaperPresented by the European Commission”, (1995) Consumer Law Journal, 79 at 81.

73. See Oughton and Willett, supra note 18, at 302 et seq.74. See the Commission’s Green Paper “Consumer Guarantees and After-Sales Services”,

COM(93)509 final, 11.75. See recital 3.76. Green Paper, supra note 74, 11. See also Tenreiro, supra note 72, at 81 et seq.; Stauden-

mayer, supra note 18, at 548.77. See Grundmann, supra note 18, Einl., para 28, with further references.78. See Honsell, “Die EU-Richtlinie uber den Verbrauchsguterkauf und ihre Umsetzung ins

BGB”, (2001) Juristen-Zeitung, 278; Roth, supra note 69, at 478.79. In contrast, the currency exchange problem has been solved for most Member States,

with the introduction of the Euro; see the Commission’s Communication on Consumer PolicyStrategy 2002–2006, supra note 13, at 2.3.1.

80. See e.g. Nietzer and Stein, “Richtlinie zum Verbrauchsguterkauf – Auswirkungen inDeutschland und Frankreich”, 99 Zeitschrift fur vergleichende Rechtswissenschaft (2000), 41at 50; Wagner, supra note 71, at 1011, 1016–7. See also Beale and Howells, “EC harmonization


not distinguish between practical difficulties in having goods replaced andrepaired in general and difficulties due to different consumer sales laws. Onecould even go further and turn the reasoning of the EC legislature againstthem. It seems realistic that the consumer will at best be informed about thenational implementation of EC law, as Article 9 of Directive 1999/44/ECrequires. Therefore, the consumer may expect to find the same rules abroad.With a minimum harmonization Directive this may not be the case if theconsumer’s resident State has adopted a higher level of consumer protectionthan required.81 Thus, the consumer may end up as disappointed or insecureas before.82

With such weak evidence for the establishment of the internal marketthrough increasing consumer confidence, compliance with Article 95 EC maycall at least for additional improvement for cross-border trade in a differentform: by facilitating trade for traders through harmonizing national legisla-tion and diminishing information costs.83 The ECJ has consistently held thatin interpreting a provision of secondary Community law, preference shouldas far as possible be given to the interpretation which renders the provisionconsistent with the Treaty.84 Thus, Article 95 EC may require an interpreta-tion of Directive 1999/44/EC that facilitates trade for traders. Assuming thatunlimited discretion under Article 8(2) of Directive 1999/44/EC might leadto different sets of rules in all the Member States, and therefore to insuffi-cient facilitation of trade for traders whose information costs would not bereduced, Article 8(2) may have to be interpreted in such a way that makes ita real contribution to the completion of the internal market, i.e. in a way thatdelimits the Member States’ regulative freedom.

Facilitating cross-border trade for traders would, in particular, requireensuring that traders can sell goods that are in conformity with the con-

of consumer sales law – A missed opportunity?”, 12 Journal of Contract Law (1997), 21 at23. Other authors argue at least that the traders are more important for the creation of a marketthan the consumers. See e.g. Grundmann, “Verbraucherrecht, Unternehmensrecht, Privatrecht– warum sind sich UN-Kaufrecht und EU-Kaufrechts-Richtlinie so ahnlich?”, 202 Archiv furcivilistische Praxis (2002), 41 at 43.

81. A particular problem in this context is Art. 5(2) on optional notification periods, seeinfra, at 3.2.

82. See Roth, supra note 69, at 479.83. This appears to be confirmed by the recent Commission’s Communication on Consumer

Policy Strategy 2002–2006, supra note 13, at 2.3.3.84. See e.g. Case C-314/89, Siegfried Rauh v. Hauptzollamt Nurnberg-Furth, [1991] ECR

I-1647, para 17; Case C-181/96, Georg Wilkens v. Landwirtschaftskammer Hannover, [1999]ECR I-399, para 19. See also Case C-236/01, Monsanto Agricultura Italia SpA and others v.Presidenza del Consiglio dei ministri and others, Opinion of A.G. Alber of 13 March 2003,para 112 nyr. See also Mortelmans, “The relationship between the Treaty rules and Communitymeasures for the establishment and functioning of the Internal Market – Towards a concordancerule”, 39 CML Rev., 1303 at 1324–5.


tract as described in Article 2 of Directive 1999/44/EC in all Member Stateswithout facing the risk of contractual liability, which implies that MemberStates should not be allowed to introduce stricter requirements for conform-ity. Furthermore, the presumption of conformity should be left untouchedby legislatures. Unlike other Directives that leave questions on the burdenof proof explicitly in the discretion of the national legislature,85 Directive1999/44/EC does not provide for such a reference. In fact, the presumptionof Article 2 of Directive 1999/44/EC was included by the EC legislature inorder to facilitate cross-border trading for traders and forms part of the marketaccess conditions.86 Depending on the extent to which different remedies inthe Member States would still distort the competition between traders fromdifferent Member States one could even go further and exempt Article 3 ofDirective 1999/44/EC from the scope of application of Article 8(2), in orderto make the Directive comply with Article 95 EC.

In summary, Article 95 EC might require a restrictive interpretation of theminimum harmonization clause of Article 8(2) of Directive 1999/44/EC insuch a way that in fact it only allows for more stringent provisions outsidethe core of the Directive.

3. Implicit limitations in the Directive itself?

In addition to the limitations that are set by the EC Treaty, Directive1999/44/EC itself may limit the freedom of the Member States to makeuse of the minimum harmonization clause in Article 8(2). Whilst the wordingof Article 8(2) has already been dealt with, its context, the aims and objectivesof the Directive and also the travaux preparatoires might support this view.

3.1. Explicitly regulated issues

In its judgments of April 2002 on the Product Liability Directive 85/374/EEC,the ECJ argued, inter alia, that this Directive provided for a fine-tuned balanceof the interests of traders and consumers, which Member States should notbe allowed to overrule.87 This argument may well apply to other private lawDirectives, and in particular to Directive 1999/44/EC. The primary concern

85. See e.g. Art. 15 of Directive 2002/65/EC on the distance marketing of financial products.86. See also the different rule in German law where the presumption was deleted. See the

reasons given by the German Government, Publications of the German Parliament (BT-DrS.)14/6040, 212.

87. Case C-52/00, Commission v. France, [2002] ECR I-3827, para 24, and Case C-154/00,Commission v. Greece, [2002] ECR I-3879, para 20.


of traders, other than the limitation periods, are the conformity test and theset of available remedies.88

3.1.1. The contextWith regard to the context, one could point to the options that have been incor-porated into Directive 1999/44/EC. These options relate to the applicabilityof the Directive to second-hand goods sold at public auctions, Article 1(3),to notification periods, Article 5(2), to the time period for the liability forsecond-hand goods, Article 7(1), and to language requirements for guaran-tees, Article (4). In Commission v. France, A.G. Geelhoed raised the questionwhy the EC legislature would include options to derogate from the rules ofDirective 85/374/EEC and provide for specific assessment of the effect ofthose options if Member States were free to deviate from the provisions ofthe Directive anyway.89 The same question could be asked with regard toDirective 1999/44/EC.

Indeed, under Article 5(2) the Commission is called upon to prepare areport on the use Member States make of the option to introduce a notificationperiod.90 By this, the EC attempts to find out whether different national ruleson notification periods pose an obstacle to the internal market for consumergoods, and whether the rules should therefore be harmonized in an amendmentto Directive 1999/44/EC, as happened in the case of Directive 85/374/EECwith regard to agricultural products.91

One might suspect that deviations from the hierarchical remedies systemin relation to which the Directive does not give any options would be evenmore relevant with a view to possible obstacles to the free movement ofgoods than differing notification periods. However, in this respect Directive1999/44/EC does not require the Commission to prepare a specific report. Thismay indicate that the possibility for different national rules on the remediessystem was simply not intended by the Directive, even though this issue couldbe picked up in the general report that the Commission has to prepare in 2006,according to Article 12 of the Directive.

3.1.2. The aims and objectives of the DirectiveDirective 1999/44/EC, having been adopted under Article 95 EC, aims at thecompletion of the internal market, recital 4. The main mechanism to achieve

88. See Wagner, supra note 71, at 1014.89. See Case C-52/00, Commission v. France, [2002] ECR I-3827, Opinion of A.G. Geel-

hoed, paras. 47–8.90. For the relevance of this report see Staudenmayer, supra note 18, at 558. The report was

due in January 2003 but has not appeared yet – probably because a number of Member Stateshave not yet implemented the Directive.

91. See Directive 1999/33/EC, O.J. 1999, L 141/20.


this is, according to recital 2, to create or increase consumer confidence inbuying abroad. According to recital 5, the creation of a common set of minim-um rules of consumer law, valid no matter where goods are purchased withinthe Community, will strengthen consumer confidence and enable consumersto make the most of the internal market. However, as mentioned above, theDirective also aims at facilitating cross-border business for traders.

Attention might be paid to the somewhat contradictory wording of recital2. There, the EC legislature refers to the definition of “internal market” andexplains that the free movement of goods concerns not only transactions bypersons acting in the course of a business but also transactions by privateindividuals. Then it is stated that this implies that consumers resident in oneMember State should be free to purchase goods in the territory of anotherMember State “on the basis of a uniform minimum set of fair rules govern-ing the sale of consumer goods”.92 And according to Article 1 of Directive1999/44/EC, the approximation of the Member States’ laws shall ensure a“uniform minimum level of consumer protection in the context of the intern-al market”.93 With a view to the similar wording of recital 10 of Directive93/13/EEC, it was argued that the notion of uniformity demonstrated that Dir-ective 93/13/EEC did not merely aim at approximation but at harmonization,at least to some extent.94 On the other hand, the notion of uniformity mayalso point at ensuring that the minimum level of consumer protection aimedat by the Directive is achieved with uniform mechanisms, i.e. by introducingcertain remedies, certain time limits etc. Thus, the use of the term “uniform”is not in itself of major significance.

3.1.3. Travaux preparatoiresThe legislative process, although not being of decisive importance in the lightof the arguments based on Article 95 EC, supports the idea that some ofthe provisions of Directive 1999/44/EC are meant to be unchangeable by theMember States. In fact, the lengthy negotiations between the Commission,the European Parliament and the Council on the set of remedies95 seem tosuggest that the final result should be the last word.96 It is also striking inhow much detail Article 3 describes the hierarchy of the various remediesthe Directive grants to consumers, namely repair, replacement, rescission and

92. Emphasis added.93. Emphasis added.94. See Klauer, supra note 17, at 191.95. See Staudenmayer, supra note 18, at 554.96. See also Case C-52/00, Commission v. France, [2002] ECR I-3827, Opinion of A.G.

Geelhoed, para 35, for the potential relevance of a lengthy legislative process on the interpret-ation of the Product Liability Directive 85/374/EEC.


reduction of price.97 Nevertheless, most authors argue that Member Statesare free to maintain or introduce a remedies system that is more favourableto the consumer.98

The search for the appropriate balance can be traced through the legislativeprocess.99 From the very beginning, the EC Commission aimed at strikinga balance between the obligations of sellers and consumers.100 Also, theproposal was, amongst other things, supposed to facilitate the traders’ cross-border activities by providing for a more accessible legal framework. Thisshould reduce the traders’ expenses for investigating the relevant nationallaws, in order to adjust their marketing strategies accordingly.101

The first proposal suggested giving the consumer the free choice of all fourremedies. This freedom of choice was balanced with a rule that limited theremedy of rescission to the first year after delivery, Article 3(4) of the firstproposal. Moreover, Member States were allowed to limit the scope of therights conferred in cases of minor lack of conformity. The system was changedwhen a hierarchy of remedies was introduced in the amended proposal. Thishierarchy is clearly in the interest of traders who have a preference for thereplacement or repair of the product.102 At the same time, the time limit forrescission and replacement was given up, as was the possible limitation ofliability in the case of a minor lack of conformity.

Another element of Article 3 that seems to be fixed is the exclusion ofthe right to rescission in cases of a minor lack of conformity. The Directivedemonstrates, in Article 3(6), the aim of upholding the contract in cases ofminor non-conformity. Apart from protecting the trader, this rule is also meantto accommodate common law countries where this rule is well-established.103

97. See Staudenmayer, supra note 18, at 554: “. . . the rather precise wording does not leavea lot of room of manoeuvre for implementation by Member States”. See also Grundmann,“European sales law – reform and adoption of international models in German sales law”,(2001) ERPL, 239 at 253: “subtle compromise”.

98. See e.g. Bruun Nielsen, “Directive 1999/44/EC of the European Parliament and theCouncil on certain aspects of the sale of consumer goods and associated guarantees andits influence on Danish law”, (2001) ERPL, 189 at 194; Watterson, “Consumer Sales Dir-ective 1999/44/EC – The impact on English law”, (2001) ERPL 2001, 197 at 210; Hogg,“Scottish law and the European Consumer Sales Directive”, (2001) ERPL, 337 at 346–7;Gsell, “Kaufrechtsrichtlinie und Schuldrechtsmodernisierung”, (2001) JZ, 65 at 67; Jorden &Lehmann, “Verbrauchsguterkauf und Schuldrechtsmodernisierung”, (2001) Juristen-Zeitung,952 at 957. See also Hondius and Schelhaas, “In conformity with the Consumer Sales Directive– Some remarks on transposition into Dutch law”, (2001) ERPL, 327 at 335.

99. See Staudenmayer, supra note 18, at 557–8.100. First proposal, COM(95) 520 final, 8. See also Tenreiro, supra note 72, at 86.101. First proposal, COM(95)520 final, 25 and 27. See also Micklitz, supra note 14, at 237.102. See Tenreiro, supra note 72, at 86.103. See Bruggemeier, “Zur Reform des deutschen Kaufrecht – Herausforderungen durch

die EG-Verbrauchsguterkaufrichtlinie”, (2000) Juristen-Zeitung, 529 at 531.


On the other hand, it is obvious that the EC legislature did not wish tototally harmonize the Member States’ limitation periods. This stems fromrecital 17 and can be traced through the legislative history.104 Stricter rulescan also be introduced for guarantees where the level of regulation is ratherlow.105 And one further candidate for stricter national regulation is procedurallaw where the EC legislature has traditionally been reluctant to interfere withnational competence.106 Except for the presumption of conformity in Article2 of Directive 1999/44/EC,107 there may also be some freedom to regulatethe burden of proof.

3.1.4. ConclusionAs far as the regulation of the conformity of goods with the contract and theremedies system are concerned, Directive 1999/44/EC provides for a definitesolution which Member States cannot alter. This does not mean that theminimum harmonization clause of Article 8(2) does not have any meaning atall. However, it should be used carefully.

3.2. Options and minimum requirements

In four cases, Directive 1999/44/EC explicitly leaves options to the MemberStates: the applicability to second-hand goods sold at public auctions whereconsumers have the opportunity of attending the sale in person of Article 1(3),the notification period of Article 5(2),108 the limitation period for second-hand goods of Article 7(1), and the establishment of language requirementsof Article 6(4). With regard to the topic of this article, the question arisesas to how much flexibility these options offer to national legislatures. Thisquestion was at stake in the product liability case of Commission v. France.There, the ECJ held that although Article 15 of Directive 85/374/EEC enabledthe Member States to remove the exemption from liability under the so-calleddevelopment risk defence, it did not authorize them to alter the conditionsunder which that exemption is applied.109 This restrictive interpretation serves

104. See Tenreiro, “La proposition de la Directive sur la vente et les garanties des biens deconsommation”, (1996) Revue Europeenne de Droit de la Consommation, 187 at 224.105. See Tenreiro, supra note 104, at 224.106. See also Klauer, supra note 17, at 205, in the context of Directive 93/13/EEC. For recent

development of the EC’s influence on procedural law based on the principle of effectiveness seeRott, “Effektiver Rechtsschutz vor missbrauchlichen AGB – Zum Cofidis-Urteil des EuGH”,(2003) EuZW, 5 et seq.107. See supra, at 2.2.108. See the critical comments by Staudenmayer, supra note 18, at 557–8, and Kruisinga,

“What do consumer and commercial sales law have in common? A comparison of the ECDirective on consumer sales law and the UN Convention on contracts for the international saleof goods”, (2001) ERPL, 177 at 182 et seq.109. See Case C-52/00, Commission v. France, [2002] ECR I-3827, para 47.


to reduce the variety of regulation in the Member States, thereby reducinginformation costs for traders and facilitating cross-border trade.

As far as the notification period of Article 5(2) is concerned, the expresswording clarifies that the notification period has to be “at least” two monthsso that longer notification periods are possible. Equally, a reduced time periodfor second-hand goods may, according to Article 7(1), not be “less than” oneyear; thus, it could also be 18 months. In contrast, Article 6(4) offers a choiceof languages that the guarantee may be required to be drafted in. This choiceappears to be exhaustive.

3.3. Non-regulated issues

Directive 1999/44/EC merely addresses a selection of sales law issues. Dam-ages have explicitly been excluded.110 Also, related contract law remed-ies such as misrepresentation, fraud and mistake have not been addressed.Nevertheless, Directive 1999/44/EC has an impact on its legal environment.According to established ECJ case law, the implementation of EC law requiresmore than the mere transposition into national law. Simultaneously, the legalenvironment must not be so framed as to make it virtually impossible111 orexcessively difficult112 to enforce rights conferred on by EC law. This general“principle of effectiveness”113 applies, inter alia, to EC consumer law, asthe ECJ has confirmed in Oceano and in Cofidis.114 Vice versa, rules in ECdirectives that are aimed at protecting the trader from further reaching claimsmust not be undermined under a different label.

Are Member States, for example, allowed to grant consumers the immediateremedy of damages for the lack of conformity of consumer goods? Such asolution would circumvent the hierarchy of remedies sought by the Directivesince it would, in fact, offer consumers the option to claim de facto reduction inprice on the first hierarchy level. Therefore, damages for the lack of conformityof the goods as such have to be secondary to repair and replacement, lest the

110. See First proposal, COM(95)520 final, 7.111. See Case 33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskam-

mer fur das Saarland, [1976] ECR 1989, para 5, and Case 45/76 Comet BV v. Produktschapvoor Siergewassen, [1976] ECR 2043, paras. 11–18.112. Case C-312/93, Peterbroeck, Van Campenhout & Cie. SCS v. Belgium, [1995] ECR

I-4599, para 12, and Cases C-430/93 and 431/93 Jeroen van Schijndel and Johannes NicolaasCornelis van Veen v. Stichting Pensioenfonds voor Fysiothearpeuten, [1995] ECR I-4705, para17.113. This notion was first used by the ECJ in Case C-261/95, Rosalba Palmisani v. Istituto

nazionale della previdenza sociale (INPS), [1997] ECR I-4025, para 27.114. See Rott, supra note 106.


aims and objectives of Article 3 of Directive 1999/44/EC be frustrated.115

In contrast, damages that go beyond the effects of the remedies of Article3 of Directive 1999/44/EC, such as damages for consequential loss, are notaffected in any way by the Directive.

Equally, the general rules on misrepresentation or mistake may not leadto a result that undermines the balance established by the Directive. Eventhough Article 8(1) of Directive 1999/44/EC confirms that the rights resultingfrom this Directive shall be exercised without prejudice to other rights whichthe consumer may invoke under the national rules governing contractualor non-contractual liability, this does not mean that Member States havetotal discretion. Conclusions can be drawn from ECJ case law on Article13 of the Product Liability Directive 85/374/EEC. According to this latterprovision, Directive 85/374/EEC does not affect any rights which an injuredperson may have according to the rules of the law of contractual or non-contractual liability. In Gonzalez Sanchez, the ECJ interpreted this provisionin a restrictive way, arguing that it only related to rights based on othergrounds than those defined in Directive 85/374/EEC.116

A similar problem has arisen under the Vienna Convention on the Interna-tional Sale of Goods (CISG). According to Article 4 CISG, this Conventiononly governs the rights and obligations of the seller and the buyer arising froma sales contract but not the validity of the contract. Nevertheless, accordingto the majority of scholars, Article 4 CISG implies that the CISG containsexhaustive rules on the legal consequences of the lack of conformity.117 Thismeans that national rules on the validity of a contract can only apply whereadditional prerequisites are fulfilled.118 Equally, Article 8(1) of Directive1999/44/EC implies that Member States may, of course, maintain their ruleson mistake, fraud etc.119 However, they may not maintain rights based on,say, mistake under circumstances where the Directive regards the consumeras not deserving protection. In this respect, Article 2 of Directive 1999/44/ECmay have a barring effect.

115. See also Jeloschek, “The Transposition of Directive 99/44/EC into Austrian Law”,(2001) ERPL, 163 at 171. The Austrian legislature explicitly disallowed seeking of damagesfor the lack of conformity of the goods themselves, see § 933a of the Austrian Civil Code.116. See Case C-183/00, Marıa Victoria Gonzalez Sanchez v. Medicina Asturiana SA, [2002]

ECR I-3901, para 31.117. See Schlechtriem, Commentary on the UN Convention on the International Sale of

Goods, 2nd ed. (Oxford, 1998), p. 288; Kruisinga, supra note 108, at 186.118. See also Brors, “Zu den Konkurrenzen im neuen Kaufgewahrleistungsrecht”, (2002)

Wertpapier-Mitteilungen, 1780 at 1781 et seq., on the German implementation of Directive1999/44/EC. For other potential conflicts between the CISG and apparently unregulated issuesthat are governed by national law, see Lookofsky, “Loose Ends and Contorts in InternationalSales: Problems in the Harmonization of Private Law Rules”, 39 AJCL (1991), 403 et seq.119. See Tenreiro, supra note 104, at 223.


4. Is there still room for minimum harmonization in EC private law?

Given the current trend towards total harmonization in EC private law, onemay wonder whether there are reasons for at least some residual freedomof Member States to be maintained. The following remarks are, of course,strictly based on the internal market approach of Article 95 EC. Once theEC embraces a more welfarist approach that allows separating consumer lawissues from the completion of the internal market, the situation will be quitedifferent.120

Under the current regime, Article 95(4) and (5) EC permits Member Statesto maintain or to adopt a higher level of protection once the EC has totallyharmonized a certain field of law. However, Article 95(4) EC only mentionsthe grounds listed in Article 30 EC plus the protection of the environmentand the working environment. Article 30 EC mentions health protection butnot the protection of the consumer’s financial interests.121 Article 95(5) ECis even more restrictive in only referring to the protection of the environmentand the working environment. Thus, Member States do not have the com-petence to maintain or adopt a higher level of protection of the consumer’sfinancial interests, once a total harmonization measure has been enacted. Theintroduction of Article 153(5) EC has not remedied the situation since thisprovision only relates to measures taken under Article 153(3)(b) and (4) ECbut not to measures adopted pursuant to Article 153(3)(a) and 95 EC in thecontext of the completion of the internal market.122 The Treaty of Nice hasleft this untouched.

This situation might prove unsatisfactory. Whilst there are good reasons toargue in favour of greater harmonization of national consumer laws, with aview to the completion of the internal market, there should still be safeguardsin place. However, if one allows for a higher national level of consumerprotection, under closely defined circumstances, one should consider howto compensate such national variation by increasing the transparency of thelaw. Environmental law might serve as a model that could be adjusted for thepurposes of consumer law.

120. For a plea for fragmented Europeanization, see Wilhelmsson, “Private Law in the EU:Harmonized or Fragmented Europeanisation?”, (2002) ERPL, 77 et seq.121. See also Pfeiffer, supra note 16, Art. 8, at 3.122. See Case C-52/00, Commission v. France, [2002] ECR I-3827, Opinion of A.G. Geel-

hoed, para 42.


4.1. Reasons for a higher level of consumer protection

Two reasons for a higher level of consumer protection spring to mind: thediversity of consumer expectations throughout the EC, and new developmentsthat have not been anticipated.

4.1.1. National diversity of consumersMinimum harmonization is still justified where consumer expectations, andconsequently the vulnerability of consumers varies throughout the EC.123 TheECJ has recognized in a number of cases that consumer attitudes and expect-ations, for example with regard to advertising, may vary throughout the ECdue to linguistic, cultural and social differences between Member States.124

The ECJ has also taken into account different legal cultures in its recentjudgment in Commission v. Sweden. In this case, the Commission claimedthat Sweden had not implemented Directive 93/13/EEC correctly. Accordingto Article 3(3) of this Directive, the Annex shall contain an indicative andnon-exhaustive list of the terms which may be regarded as unfair. Sweden hasnot included this annex into its implementing legislation but has copied theannex verbatim into the explanatory note to the implementing legislation. It isagreed that this annex is an important instrument for informing the consumersas well as authorities and courts that have to do with the application of theDirective, and that the Member States therefore have to bring the annex tothe attention of consumers and authorities or courts, in order to ensure thefull effect of the Directive. However, the Directive does not prescribe in whatway Member States have to achieve this aim. The ECJ held that includingthe full wording of the annex in the explanatory note met the requirementsof Directive 93/13/EEC since the explanatory note was of high importance inSweden and since individuals who take an interest in legal issues were awareof explanatory notes.125 One may seriously doubt that the ECJ would havecome to the same conclusion had the German legislature done the same.

Such situations may be equated to situations in EC environmental lawthat have, in principle, undergone (almost) total harmonization. For example,Directive 67/548/EEC126 has introduced a totally harmonized regime for theclassification, packaging and labelling of dangerous substances.127 Neverthe-

123. See e.g. Weatherill, supra note 19, at 54–5.124. See Case C-313/94, F.lli Graffione SNC v. Ditta Fransa, [1996] ECR I-6039, para 22;

Estee Lauder, supra note 19, para 29. See also Sektkellerei Kessler, supra note 21, Opinion ofA.G. Fennelly, para 35.125. Case C-478/99, Commission v. Sweden, [2002] ECR I-4147, para 22, 23. See also Rott,

supra note 106, at 9.126. Directive 67/548/EEC relating to the classification, packaging and labelling of dangerous

substances, O.J. 1967, L 196/1, as amended.127. See Case C-278/85, Commission v. Denmark, [1987] ECR 4069, para 12.


less, a Member State is still entitled to make use of Article 95(4) or (5) ECin order to maintain or introduce a higher level of protection of the environ-ment. The requirements established, in particular, in Article 95(5) EC are nota low barrier. However, this barrier should be surmountable under adequatecircumstances. In a recent case, Germany had intended to introduce nation-al provisions that were more stringent with regard to the classification andlabelling of man-made mineral fibres than those provided for in Directive97/69/EC,128 and had notified this intention to the Commission, under Article95(5) EC. Germany had argued that the situation in Germany was differentfrom the situation in other Member States: first, Germany had the highest con-sumption of man-made mineral fibres insulation materials, exposing a greaternumber of workers to fibre dust than other Member States. Second, Germanyalso had a different user group, which was to a significant percentage madeup of private individuals to whom the relevant provisions on industrial safetydid not apply and who were, therefore, at greater risk. Germany’s argumentswere rejected by the Commission,129 and this rejection was upheld by theECJ,130 but this was because this otherwise promising case was extremelybadly handled by the German authorities, so that the ECJ did not need toassess the reasons for introducing a higher level of protection. In a numberof cases in which Member States wished to go beyond the restrictions on themarketing and use of certain dangerous substances and preparations estab-lished by Directive 76/769/EEC,131 submissions under Article 95(5) EC weresuccessful.132

Another interesting provision is Article 10 of Directive 91/414/EEC onplant protection products.133 Generally speaking, plant protection productsthat have been approved in one Member State have to be approved in the otherMember States. This, however, only applies “to the extent that agricultural,plant health and environmental (including climatic) conditions relevant to theuse of the product are comparable in the regions concerned”. Thus, Article10 of Directive 91/414/EEC allows for the consideration of local, regional oreven national specifics.

128. Directive 97/67/EC adapting to technical progress for the 23rd time Council Directive67/548/EEC on the approximation of the laws, regulations and administrative provisionsrelating to the classification, packaging and labelling of dangerous substances, O.J. 1997,L 343/19.129. Commission Decision 1999/836/EC, O.J. 1999, L 329/100.130. See Case C-512/99, Germany v. Commission, [2003] ECR I-845.131. Directive 76/769/EEC on restrictions on the marketing and use of certain dangerous

substances and preparations, O.J. 1976, L 262/201.132. See Glinski, “Chemicals and Biotechnology”, (2002) Yearbook of European Environ-

mental Law, forthcoming.133. Directive 91/414/EEC on the placing of plant protection products on the market, O.J.

1991, L 230/1.


If one accepts that Article 95(4) and (5) EC should be amended such asto include consumer law measures, one should also demand that nationalconsumer law measures that go beyond totally harmonized EC consumer lawhave to be based on scientific evidence, as measures for the protection ofhealth or the environment have to. As the ECJ indicated in its case law onmisleading advertising, such evidence can be gathered by consumer pollsor by expert opinion. Certainly, a high standard for such evidence shouldbe required in order to avoid the abuse of the alleged diversity in consumerattitudes.134

4.1.2. New developmentsSimilarly, one might consider the need to enable Member States to deal, intheir national legislation, with situations that were not anticipated at the timeof the adoption of EC legislation. For example, it might turn out that certainmechanisms that are meant to protect consumers can be circumvented by theuse of new technology. Or, societal changes may require state reaction.135

Sometimes, EC law may be designed in such a way that it is sufficientlyopen to include new developments. If this is not the case, national legislaturesmay be better suited to react speedily than the EC legislature. Thus, one maywish to leave some residual competence to the Member States to deal withsuch unexpected situations. Again, a comparison can be drawn with EC envir-onmental law. Even though Directive 67/548/EEC has totally harmonized theclassification, packaging and labelling of dangerous substances, Article 31 ofthis Directive allows for provisional national measures in cases where Mem-ber States avail of new information on risks for health or the environment.Such measures must be notified to the Commission who then makes a decisionon adapting Directive 67/548/EEC in accordance with the new information.

4.2. Compensation by transparency?

In situations where a higher national level of consumer protection is justified,the needs of the traders who want to do cross-border business should be takeninto account. If they cannot rely on one harmonized set of rules, the least theywould wish is information on the different laws. And indeed, there appearsto be an ever-increasing emphasis on information where total harmoniza-tion cannot be achieved. The recent Directive 2002/65/EC on the distancemarketing of consumer financial services has almost completely harmonized

134. For the relevance of sound social science in WTO law, see Rott, “Genetically ModifiedProducts and Consumer Concerns under WTO Law”, 6 Journal of World Intellectual Property(2003), 571 et seq.135. See Wilhelmsson, supra note 120, at 86.


this area of law. However, Article 4 of Directive 2002/65/EC allows MemberStates to maintain or introduce additional information obligations beyond theones required by Article 3 of said Directive. In return, Member States have toreport such rules to the Commission, and the Commission shall ensure thatinformation, on the national provisions communicated to it, is made availableto consumers and suppliers.

The technical difficulties of this approach are obvious: it places a heavyburden on the Commission. Not only would the Commission have to keepand update a register for each Directive, it would also have to translate thenational provisions into all official languages in order to make the systemefficient for all traders, including small and medium enterprises.136 This mayindeed be a reason for not overstating the degree to which transparency couldsubstitute harmonization.

5. Conclusion

Consumer law is an important field of EC law. At the moment, the internalmarket approach for the adoption of EC consumer law implicitly requiresa high level of harmonization, and therefore restricts the Member States’freedom to maintain or adopt more stringent rules at the domestic level. Therecent ECJ judgments in the fields of product liability law and tobacco regula-tion have certainly increased the awareness for these restrictions, and the newtrend towards total harmonization measures is the inevitable consequence.

At the same time, this development may have alarmed those MemberStates who prefer an even higher level of consumer protection. The need tofind the one and only correct level of consumer protection might even stallthe further development of EC consumer law. Thus, it might be beneficial tofind a compromise between the establishment and functioning of the internalmarket and the principle of minimum harmonization which could be foundin allowing a higher level of protection at the domestic level for importantreasons that are supported by social science, such as a higher vulnerabilityof consumers. This would require amending Article 95(4) and (5) EC byintroducing a respective escape clause. It would appear to be an open andtransparent way to establish an EC wide high level of consumer protection,without forcing Member States to give up instruments for the protection oflegitimate interests of their consumers. One caveat may be allowed: a solutionthat restricts the competences of the more protective Member States in such away will only be acceptable for these Member States if regulation at a “high

136. For a distinction of the information needs of multinational enterprises and small andmedium enterprises see Wagner, supra note 71, at 1014–5.


level” of consumer protection, as required by Article 95(3) EC, is taken justas seriously as regulation for the establishment and the functioning of theinternal market, i.e. if the ECJ is equally prepared to hold a Directive void ifit does not achieve a high level of consumer protection.

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