June O'Keefe and Andrew Laidlaw ask whether new European Consumer protection rules amount to spring cleaning or a rebuilding of the house.


As the clocks went forward, the sun came out and thoughts naturally turned to the summer holidays. But the heightened sense of anticipation of some precious time off can often lead to disappointment.



Obviously there is not a lot you can do if the lobster-coloured bodies by the pool do not match the bronzed models pictured in the brochure. However, if your view of the Mediterranean is obscured by a building site, or indeed your hotel has not actually been built yet, what options are open to you?



Or take another common situation: you are on holiday in Spain when approached by a pleasant-looking sales representative. You are lured to a free champagne reception, where all you have to do in return is listen to a sales pitch about buying a share in a luxury villa. Three hours and four glasses of bubbly later, you find yourself signing a piece of paper, in Spanish, which you are assured is not legally binding. In the cold (and more sober) light of day, it transpires that you have signed up to a 30-year timeshare contract. So where do you turn?



Well, the good news is that for years European laws have offered some help in this area. Package travel rules entitle duped holiday-makers to compensation when they have been misled. Timeshare rules protect unsuspecting tourists by providing a ten-day cooling-off period during which time they can cancel the contract without having to give any reasons. More generally, European laws protect consumers in a number of ways in relation to distance contracts, doorstep selling, unfair contract terms, price indications and so on.



The bad news is that some businesses 'innovate' and develop new products to circumvent the existing protections. For instance, while timeshares are now regulated and subject to rules, new offerings have sprung up, such as holiday clubs, which have been referred to by one MEP as 'a sophisticated form of mugging'. As you can imagine, it takes a long time for 27 European Commissioners, 27 governments, 785 European parliamentarians and thousands of civil servants to react to such developments.



The EU's consumer protection rules have developed in a piecemeal fashion over the years and the result could be described as a bit of a mishmash. The same legal term might have a different meaning depending on the piece of legislation you are looking at. Consumer rights and remedies vary. Cooling-off periods are inconsistent: seven days under the 'doorstep and distance' selling rules, ten days under the timeshare ones. There is not even an agreed definition of who the consumer is.



The inconsistencies are bad enough in themselves, but studies have shown that we - the European consumer - are not shopping across borders. Only 6% of European buyers bought goods across borders in 2006, mainly deterred by the additional complications should things go wrong. Shopping online does not seem to offer any greater comfort, with consumers being held back principally with regard to fears relating to delivery and returns. Equally, businesses are reluctant to market to other member states, where they might have to comply with different consumer protection rules.



So, commissioner Meglena Kuneva, who has also been looking into the idea of developing consumer representative actions, is consulting on a possible overhaul of the consumer rules. While a bit of spring cleaning is clearly necessary, she is suggesting more than simply blowing off the cobwebs. Her green paper proposes that the EU could introduce a new legislative framework that would cover all consumer contracts, introduce a number of standardised rights, and remove much of the ability of member states to adopt more protective rules.



While introducing such uniform rules might seem like the ideal solution to tackling the reticence of consumers to shop cross-border, it is unlikely that any EU legislation would be able to remove the inherent differences in national legal traditions that impact on the way we treat questions of contract law. For instance, the approach of English courts to determining who is a consumer has always been more objective than the subjective continental approach.



So it might be a while before such a general legal framework comes to fruition. It also seems unlikely that the European Commission would consider proposing such a measure separately from the broader body of work taking place in relation to contract law: the development of a common frame of reference (CFR - an EU toolbox of standard terminology). It would seem preferable for the commission to get on with its spring cleaning of the existing directives and develop any more ambitious instrument within the CFR. An online questionnaire about this can be found on the Society's website (www.lawsociety.org.uk), so please let us know what you think.



June O'Keeffe is head of the Law Society's Brussels office, and Andrew Laidlaw is the internal market policy executive