Analysis
Questions A and B
are UK specific, but do have an European Union relevance,
which will be detailed below. The first point to make
however is that a little more research on behalf of the
students involved would have led to a more precise
question. This is because the question references the
“UK”, when in fact legislation in this area comes
from three different sources for each jurisdiction:
England and Wales (Sunday
Trading Act 1994), Northern Ireland (The
Shops (Sunday Trading &c) (Northern Ireland) Order
1997) and Scotland (where opening hours are
unregulated, but shop employees have the right to to
refuse to work on Sundays via the Sunday
Working (Scotland) Act 2003).
In general there are no provisions in EU legislation
that have directly effected the UK (England and Wales,
Northern Ireland, and Scotland) regulations on the hours
that shops may open on Sundays. However, prior to the
Sunday Trading Act 1994 several attempts
were made by retailers to enable Sunday opening (where it
was regulated) via the provisions of EU legislation,
through the European Court of Justice. These relied on
the free movement of goods requirements within the EC
Treaty, specifically art 28 (formerly art 30), which
place a prohibition on restrictions on imports.
The ECJ rejected these attempts to nullify national
laws, finding that the Sunday trading restrictions were
proportionate to their aims (employment protection and
retaining a “day of rest”) and acted equally on
domestic produce as well as imported goods.
The survey indicates an even split between those
believing Sunday trading should be regulated and those
that do not. While the majority believe that the EU has
had no influence in this area of UK-wide legislation.
However, it is argued
that the large number of challenges to English law
promoted by the retailers, and the pursuit of some of
these cases to the ECJ, eventually persuaded the
government to revise the Sunday trading laws as indicated
above. At the same time it is likely that other pressures
would have been, and no doubt were, exerted to relax
these laws in a largely secular state, not least the
profit motive of the retailers concerned:
“But here
the approach of the ECJ was fully justified: there had to
be a clear ruling if the UK Act, and others like it, was
not to be silently repealed by those with the means and
the motive to support near-continuous litigation before
national courts”
Questions C-G all
address the support given to the measures within various
legislation that the EU has developed for consumer
protection across the member states. The general
principles of these measures is to ensure a level playing
field between producers and markets in different member
states, and to intervene where the market has failed to
deliver value to the end user via competition.
The distance selling regulations discussed in question
C related in the UK to The
Consumer Protection (Distance Selling) Regulations 2000,
which implements Directive
97/7/EC a measure for the protection of consumers in
distance selling contracts which should be implemented
across all EU member states. Interpretation of these
provisions in the English courts, and by advice from
government departments, is that online auctions are
exempt
(2000 reg s5(f), Directive 97/7/EC art 3(1)) and that
opening and inspection of the goods by the consumer does
not bring about the end of the right to cancel the
contract and return the goods.
Respondants to the survey overwhelmingly support the
measure, with the EU participants being just a little
short of unanimous.
Regulation
(EC) No 261/2004 comes into play with question D,
and concerns compensation payable to passengers in the
event of denied boarding (over-booking), cancellation or
of long delays.
A general exemption for the airlines in these
regulations is that they are not obliged to pay
compensation in the event of “extraordinary
circumstances” (art 5(3)). From this perspective fog
is considered “extraordinary circumstances” but the
grounding of an aircraft due to a technical fault is
not.
The European Court of Justice has additionally
interpreted the regulations so as to award compensation
to passengers of delayed fights (where the delay in
arrival is three hours or more),
although such is not provided for within the regulation.
Without this ruling those subject to delays would only be
entitled to the “right to care” provided for in art
9.
Again the poll results point to this being a popular
measure, with three-quarters of respondents supporting it.
Mobile phone roaming charges within the EU were
recently regulated with Regulation
(EC) No 717/2007, by which the charges for incoming and
outgoing calls to customers are capped. Recognising a
shortcoming in this provision the European Commission has
made further regulations controlling the pricing of SMS
and data services.
Regulation of this area is an example of measures
taken by the European Commission where it feels that
“there is still evidence that the relationship between
costs and prices is not such as would prevail in fully
competitive markets”
– competition and deregulation have not combined to the
full advantage of the consumer. As the preamble to the
regulation goes on to state the measure is aimed at
facillitating communication between citizens to create a
“social, educational and cultural”
area within Europe – recognising the special nature of communications between the member states. It also aims to redress the balance
between consumers and large telecomms operators, whom it
sees as having “significant market power”.
Over 90% of EU respondants and four-fifths of UK
respondants believed that roaming charges should be
regulated – however, there is no indication in the
question as to whom should undertake such regulation.
This issue is addressed below.
Question F addresses a fundamental
issue of EU trade. That is whether standards can be
developed for products so as to satisfy health and
safety, and environmental concerns across all member
states. Such provision would justify the free movement of
goods, in the sense that there could be no barrier placed
against them on the grounds that such concerns were not
satisfied from one member state to another. Thankfully
the EU has developed the ‘CE’ mark (“Conformité
Européenne” – European Conformity – Directive 93/465/EEC) which
should be familiar to citizens of the EU. This is a
mandatory requirement for many products sold in the EU
and EEA (eg toys, electrical goods, medical equipment,
machinery, etc, but not automotive products, which have a
separate scheme), a certification by the manufacturer
that the product conforms to relevant Directives.
However the European Commission is also aware that the
CE mark is misused, and may be placed on items that do
not conform to standards, or do not require conformity
– but such abuse is open to any kind of standard where
an opportunity exists for the unscupulous to produce
counterfeit or unsafe goods. Nevertheless, when
purchasing from responsible retailers the mark does act
as a guarantee of compliance with standards across all
member states.
Although this measure is not identified as an EU-based
regulation in the survey, it can clearly be identified
that a very large proportion of respondants agree that
common standards are a requirement for a properly
functioning market – be that national, pan-European or
even international.
The key question with these issues is whether the
general public believes that they merit intervention on
an EU level, or, as they may have assumed, such issues
were dictated on a national level. For the EU respondants
regulation by the European Union was not an issue,
maintaining the high levels of support seen in the
responses to questions C-F.
But, the possible Euro-scepticism showed in the UK
responses, where support drops away from the very high
levels in the previous questions. At the same time 65%
still see the value of the EU’s involvement in these
areas.
As noted above, it is conceptually difficult to
separate some of these issues from the European Union –
in the sense that some of them are necessarily
pan-European in their scope (the regulation of roaming
charges and of airline passenger compensation). Common
standards for products is a fundamental issue, when you
have 27 states within a trade block – it would appear
to be a very high burden for many manufacturers to have
to appease the regulators in each state separately. Some
may view such a burden as a benefit, in that it may block
many imports and enhance the industry and employment
prospects of their own states – it would certainly not
only act upon imports from the EU, but upon those from
across the globe that currently rely upon European
conformity.
For the distance selling regulations, although usually
applicable on a national level, it can be seen that these
will also have an effect on transactions that occur
cross-border within the EU, ie that a consumer in
Portugal can buy from a retailer in Germany, and still
have the same protection, in that they can return the
goods within seven days (because this is an EU-wide
measure).
It is certainly true that all of these measures could
have been secured on a bi- or multilateral basis, between
member states directly without the involvement of the EU.
However, it seems unlikely that all 27 member states
could have been persuaded to implement all of these
measures. In the absence of a unanimous agreement this
would have resulted in patchy implementation and lacked
the certainty that businesses and citizens can currently
rely upon.
Overall it is submitted that this EU legislation
enhances the “common market” by making such work for
consumers and businesses in that they have more choice of
supplier (even across borders) and that they can rely on
certain provisions and standards to protect their rights
and assure safety, on a pan-European level. This must
surely make for a more competitive market, such as that
enjoyed in large countries or regional groups, that have
similar provisions (ie the economies of scale available
to consumers in the USA).
Collectively these provisions reveal
the interrelated nature of regulation required to support
what many people consider to be the core purpose, or even
the only purpose, of the EU a “common market”. An additional benefit is that, as these standards and
regulations are seen as being “international” in
their scope, and have a large user base, they are adopted
by other nations, or accepted as equivalent to the
regulations in use in non-EU states. An example of this
is that Turkey requires CE marking, but is not a member
of the EU.
On their face questions H-K
appear to concern tobacco-based products, but they have
much wider application, and again, an EU-wide application
which may be difficult to separate if we are to retain
notions of a “common market”. However, first the
question of tobacco advertising will be dealt with
directly. At an EU level a prohibition has taken place in
two stages, the Television Without Frontiers Directive
and the Tobacco Advertising Directive,
these however do not necessarily have a national force,
and allow member states to continue with poster site,
cinema and sponsorship promotions that do not have cross
border effect.
However many member states have taken the opportunity to
enact their own legislation that enables a complete ban
on all tobacco advertising and promotion. In the UK
much of the legislation has been independent of the EU.
The first round of restrictions came into force in 1965,
when cigarette advertising was banned on television.
Advertising for loose tobacco and cigars continued in
this medium until 1991 (with the implementation of the
Television Without Frontiers Directive). Finally all
advertising and promotion was banned incrementally with
the Tobacco Advertising and Promotion Act 2002.
So while over three-quarters of all respondents
believe that a ban on tobacco advertising is reasonable,
the actual sources of national legislation may vary. For
the UK it is fair to say that the EU has had an influence
on national legislation, and elsewhere the same is true,
with legislatures taking advantage of EU Directives
requiring some change in order to push through more
stringent regulations of their own. However, outside of
television, the main thrust for change has been national,
rather than EU-based.
The wider area implicit in questions H-K
is that of general product safety, particularly where
human consumption is concerned. Two areas will be
addressed here, with international, extra-EU scope. The
first is the EU’s position on genetically modified
organisms (GMO) and the second is the use of hormones in
animals, both of which have led to a ban on products from
certain states, principally the USA.
The challenge for regulators in the field of GMOs is
to reassure the public about the possible risks of these
foodstuffs, in the face of scientific uncertainty over
their long term effects.
To this end the EU has a three-pronged approach:
regulation
and authorisation for placing products on the market,
labelling and traceability.
It effectively had a moratorium on the approval of new
GMO-related products between 1998 and 2003, which brought
the EU into conflict with other states, who appealed to
the World
Trade Organisation. The EU has however consistently argued
that its aim is merely to properly examine any GMO
product submitted for distribution in the EU, and on that
basis it will conduct its own examination, not rely on
the assurances of the USA and other exporters.
The current rules on GMOs in the EU are that
unauthorised GMOs are completely banned, and that all use
of authorised GMOs must have a traceable source and be
labelled as being of GMO origin (where the GMO material
consists of more than 0.9% of the product).
The second highlighted subject in this area is the
routine use of hormones in animals raised for meat
production. This issue again has brought the EU into
conflict with the USA, because of the prohibition
on use of certain (natural and synthetic) hormones, and
because this in turn bars the importation of USA beef and
animals treated with the hormones to the EU. The use of
these hormones was not therapeutic, but to promote
growth. In the latest round of this dispute the WTO
Appellate Body found that the EU had a wide mandate to
assess risk and scientific evidence, and could not be
bound by mainstream theory, if there were minority views
or other factors at hand.
It had therefore effectively won its almost 30 year
dispute with the USA – within which the USA had levied heavy import duties in retaliation for the EU’s stance.
Both of these issues call into question the means by
which the EU uses science to justify what ordinarily may
be political decisions. For example, the decision on
labelling products containing GMOs does not relate to a
risk assessment, but to the perception that EU citizens
are wary of GMO products, and would wish to avoid them.
The products may be allowed, but are stigmatised by
labelling, and a de facto ban emerges as consumers reject
the products.
Again issues arise over the “common market”
function of the EU. Without a shared stance on these
issues within the member states there would be clear risk
of “contamination” were these products to be allowed
into any single member state. Such a state may find many
of its products on a banned list, and bring into question
the very nature of the free movement of goods. Reflecting
on this, it could well be the case that without a central
body to oversee such matters a consensus would emerge.
Since member states would not wish to run the risk that
their products would be rejected by other member states
that had stricter rules on these issues. As external EU
suppliers of grain and soya Argentina and Brazil appear
to have taken on such a rationale – in that they have
restricted their planting of GMOs so as to satisfy the
demand for exports to the EU.
Overall the position of the respondents to this set of questions is that these areas of consumer protection, including health and safety matters, should be regulated, and that it is acceptable to a clear majority that such regulation be completed at an EU level.
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