Geraint Howells *
VI. Safeguard clause
Thus in the context of the General Product Safety Directive maximal harmo-nization may have some negative effects in terms of regulatory development.
The safeguard clause in Art. 2(4), outlined above, however, is an important safety valve. It ensures that the authorities can react to dangers even if the producer is sheltered from prosecution because his product conforms to spe-cific criteria. It means consumer protection is not ultimately sacrificed for the sake of free movement and maximal harmonization. This seems a sensible precaution to have in any legislation that is based on a general clause, espe-cially as safeguards to prevent Member States using this as a disguised form of protectionism are included. Member States are required to notify the Com-mission of any action taken. This allows the ComCom-mission to keep Member States’ actions under review and check their appropriateness.
VII. Conclusion
In truth there is little on the face of the General Product Safety Directive to assist in determining whether it is a maximal harmonization directive or not. Undoubtedly political and legal policy will favour it being interpreted as such. There are still some risks in such a policy. However, the combination of high standards set by the Directive and the presence of the safeguard clause means that the Directive seems capable of protecting consumers from harm.
VIII. Implications
One can be fairly relaxed about the potential maximal harmonization char-acter of the General Product Safety Directive precisely because it offers a high level of protection, which does not threaten any national traditions, and contains a safeguard clause. In addition it helps that there has been some experience of how European regulation has worked in this field. Although
Is the General Product Safety Directive a Maximal Harmonization Directive ? the Directive was amended to enhance the level of protection, in truth the major weaknesses did not lie in the substantive laws, but rather in the lack of resources some Member States invested in their enforcement authorities.
Nevertheless these aspects of the General Product Safety Directive do allow us to reflect upon the implications of maximal harmonization more broadly.
The risks of maximal harmonization are also well reflected in the fact that if the first General Product Safety Directive had been found to be a maximal harmonization Directive there would have been more controversy as it did not provide for the full range of powers that some Member States thought necessary, i.e. in particular the power of recall.
The most high profile recent example of maximal harmonization is the Unfair Commercial Practices Directive.14The Commission argued strongly and successfully for maximal harmonization, believing that otherwise the benefits of the internal market would not be realized if traders could be con-fronted with additional national rules. Leaving to one side the debates as to whether this was necessary or desirable, the history of the General Product Safety Directive should cause us to be cautious about this maximal harmo-nization policy in the context of unfair commercial practices. The standards under the General Product Safety Directive are generally accepted as being high and not threatening the traditional norms of Member States. By con-trast the conception of average consumer in the Unfair Commercial Practices Directive is politically sensitive and in some Member States is viewed as a threat to traditional legislation. Moreover, even if the values in the European law and national law are the same the Unfair Commercial Practices Direc-tive interacts with many specific pieces of consumer protection legislation in a way that the General Product Safety Directive does not. Thus even at a practical level maximal harmonization imposes a large regulatory burden involving a review of a mass of national legislation. Even if all this could be achieved there remains the risk that some harmful practices might not be caught by the European-imposed regime. It is hard to understand why the Commission was unwilling even to include a safeguard clause allowing the Member States in exceptional circumstances to impose restrictions that would have to be notified to and open to scrutiny by the Commission. This bold confidence in their law is especially surprising given that the ingenuity of traders (rogue or otherwise) when it comes to circumventing fair trade leg-islation is well known. This is a new piece of legleg-islation whose interpretation by the courts is as yet untested. It is to be hope that the Commission’s faith in its law is well founded.
Maximal harmonization is now moving into the field of contract law. The Commission hopes for maximal harmonization of many aspects of consumer
14 OJ 2005 L 149/22.
Geraint Howells
credit laws.15That raises a wholly different issue of whether European laws can regulate totally within the confines of a slim directive matters that are dealt with, at least in the United Kingdom, in voluminous national laws and regulations. More generally the review of the contract lawacquiswill seek to introduce maximal harmonization wherever possible.16Some aspects of this will probably be sensible and beneficial, such as the introduction of common cooling-off periods. However, I am concerned about the apparent assump-tion that maximal harmonizaassump-tion of as many things as possible is always necessary and desirable. There should be a stronger onus on the Commission to prove that it is necessary to oust national consumer protection policy. Na-tional consumer policy is not only important within the domestic context, but has also been an important source of inspiration when formulating European legal policy. As these sources of inspiration dry up there is a risk that Europe will be less innovative in its approach to consumer protection.
My relaxed approach to maximal harmonization under the General Product Safety Directive is a result of certain features of that legislation. It establishes a high level of consumer protection, interacts benevolently with existing national rules and includes a safeguard clause. However, given that additional national laws can in any event be scrutinized under general free movement laws it might be questioned whether maximal harmonization re-ally is needed. This ever-present restriction on national law making should also make us less concerned about the need to extend maximal harmoniza-tion to other areas of legal policy. Moreover, it should be remembered that maximal harmonization removes the freedom of Member States to make out a case that national rules are needed for legitimate purposes as set down in the Treaty and case law of the European Court of Justice. The burden of proof should therefore be on those who want to take this limited power away from Member States. It should be remembered that, unlike Member States, Europe has very limited powers to develop an autonomous consumer policy.17It is therefore dangerous for it to use the internal market as a means not merely to address consumer protection issues, but also to become the only legitimate consumer policy maker. This might not be a problem in the field of general product safety, where European law provides a high level of consumer pro-tection in advance of national law, but it may be in other areas where there are more protective national regimes that Member States should at least have the opportunity to justify within the already strict confines of European law.
15 See, the latest modified proposal for a new Consumer Credit Directive : COM(2005) 483.
16 See for example criticism of minimal harmonization at para. 24 of the Acton Plan, A More Cohe-rent European Contract Law COM(2003) 68.
17 Art. 153 is rarely used as a legal base for consumer protection measures, which are typically introduced under the Art. 95 internal market clause.
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