Stephen Weatherill

EU consumer law and policy

Contents: 1. The Evolution of Consumer Policy in the European Union 2. Negative Law and Market Integration 3. The Law and Practice of Harmonisation 4. Market Transparency and Consumer Protection 5. Regulating the Substance of Consumer Transactions 6. Product Liability 7. European Private Law 8. Advertising and Marketing Law 9. Product Safety Regulation 10. Access to Justice 11. Conclusion: The Challenges of EU Consumer Law Index

Consumer Protection Law

Contents: Preface The map of consumer protection law European Union consumer policy The quality of goods and services Product and service liability Unfair terms Consumer credit: private law Regulation of trade practices from doorstep to internet Trade descriptions, advertising and unfair commercial practices Public regulation of consumer credit Consumer safety The regulatory offence Competition policy and the consumer interest Consumer law enforcement in England and Wales Access to Justice Index.

Party autonomy and the role of information in the internal market

Examination of Party Autonomy and its limits has always raised fundamental questions in national contract and private law. The concentration on information solutions which enhance and leave more space to party autonomy is a fundamentally new approach to this core issue and is typical of Community legislation. With the Sales Directive of 1999 and its art. 7 which seems to impose all parts of the new sales law on the parties in a mandatory way, the question has entered day to day business practice. This inquiry surrounds the issue how much variety in the design of products and conditions is left to the parties or how much protection is needed. The complexity of the question made it advisable to have the different aspects treated and discussed by specialists in different areas: by legal scholars and economists, by EC law and by contract law specialists, by scholars from different jurisdictions with different regulatory approaches and backgrounds. The four parts deal with (1) the economic and constitutionell foundations of the question, with (2) the framework to be found in EC treaty law, with (3) the fundamental and more general aspects relating to substantive EC contract law legislation, and with (4) the most important individual legal measures. The book covers both general contract law (with consumer contracts) and labour contract law.

Engaging with the EU in Order to Minimise Its Impact: Sport and the Negotiation of the Treaty of Lisbon

The absence of explicit reference to sport in the European Union (EU) treaties has allowed the Court and the Commission room to require sport to adjust to the standards required by EU law. Sporting federations typically assert a need for a wider zone of autonomy than the Court and Commission have been prepared to grant, but, unable to persuade the Member States that they deserve exemption from the application of the Treaty, sports bodies have increasingly been induced to develop strategies of co-existence with the EU. This paper shows how they were able to exert influence in both the Convention on the Future of Europe and the subsequent intergovernmental conference in order to secure recognition of sports special characteristics within the Treaty, albeit in ambiguous form. Sports bodies engage with the EU precisely in order to minimize its impact. The relevant provisions of Treaty of Lisbon dealing with sport are examined to show that they leave open scope for future contestation about the interaction between EU law and policy and the systems of sports governance.

‘Fair Play Please!’: Recent Developments in the Application of EC Law to Sport

In the Official Programme published for the 2002 Football World Cup a full page plea appeared under the title ‘Help us to ensure Fair Play at the 2002 FIFA World Cup Korea/Japan™!’ At first glance one might expect the exhortation to be designed to encourage respect for opponents, both on and off the field, or perhaps to appeal to all participants to play according to both the letter and the spirit of the laws of the game. Not so. The page in question is in fact devoted to the phenomenon of ‘ambush marketing’. It is explained that the ‘Official Commercial Affiliates’ of the tournament contribute greatly to its success, while other companies seek to promote their products by seeking to establish an association between them and the tournament without having paid FIFA for the privilege. Football spectators are encouraged to prevent such ‘ambushes’ by declining to bring commercially-branded material such as flags, banners, balloons and hats into the stadiums, even though they may commonly be cheerfully offered such free but unauthorized gifts on their journey to the match. Fair Play!

Transnational Legitimacy in a Globalising World: How the European Union Rescues its States

This article addresses claims regarding the limited legitimacy of international institutions. It argues that the two original appointed supranational institutions of the European Union play a crucial, if systematically underestimated, role not merely in providing legitimacy for the Union itself, but also in shoring up that of its constituent member states. We illustrate that supranationalism enhances national legitimacy in functional, political and administrative terms. It does so by helping member states produce outputs they otherwise could not (particularly by enabling them to deal with transboundary policy problems they would struggle to confront if acting in isolation) and by embedding within national political and administrative systems legally enforceable obligations to respect the interests of actors whose voice is excluded or muffled (de jure or de facto) within purely national political processes. The article contends that the claims to legitimacy made by the EU and its member states are of distinctive character but interdependent and mutually reinforcing.

Anti-doping Revisited: The Demise of the Rule of ‘Purely Sporting Interest’?

On 18 July 2006 the European Court of Justice (ECJ) set aside the decision of the Court of First Instance (CFI) in Meca-Medina and Majcen v. Commission. Before the CFI the applicants, who are professional swimmers, had unsuccessfully applied for annulment of the Commission’s decision to reject their complaint that bans imposed on them for violation of the sport’s anti-doping rules contravened EC competition law. The swimmers also failed before the ECJ which, having set aside the CFI’s judgment, dismissed the application for annulment of the Commission’s Decision. However, the ECJ’s ruling is significant for rejecting the CFI’s relatively generous approach to the scope of sporting autonomy to apply rules with economic effects. In what may prove to be the most enduring phrase in the judgment, the ECJ ruled that ‘the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down’. The ECJ’s approach is in line with that suggested in this Review by the present author in a critical comment on the CFI’s decision, but the purpose of this contribution is not simply to reflect on (what I consider to be) a helpful correction to the basis of interaction between EC competition law and sport, but rather also to look forward to future challenges. The practical effect of Meca-Medina and Majcen, as an authoritative statement of the limits of sporting autonomy under EC competition law, is to assert EC law’s firm grip over the choices available to governing bodies, and this has important implications inter alia for the looming litigation arising out of FIFA’s rules compelling football clubs to release their players for international representative matches.

Is the Pyramid Compatible with EC Law

The European Commission’s Helsinki Report, which was published in 1999, includes the assertion that ‘the pyramid structure of the organisation of sport in Europe gives sporting federations a practical monopoly. The existence of several federations in one discipline would risk causing major conflicts?’. Indeed it would create such a risk. It is not the purpose of this short paper to argue a case in favour of an injection of competition into the job of fixing the rules of the game. This contribution is instead driven by a concern that the pyramid structure, and its consequent attribution of monopoly power to sports federations, goes beyond what is required for the proper organization of European sport (in particular, football). A considerable degree of the monopoly power enjoyed by sports federations has profound commercial implications, and it is submitted that the currently constituted pyramid structure is inadequate to allow proper representation of and participation by all affected interests. Litigation is pending, and its potential impact is summarised. In particular, this paper makes a case in favour of allowing a more direct involvement in some aspects of decision-making by the major clubs than is permitted by the pyramid structure; and EC competition law is identified as a lever for achieving a re-shaping of the organisation of the game.

The Influence of EU Law on Sports Governance

The competence of the EU to intervene in pattern of sports governance is deeply contested. This is at heart a constitutional matter. Article 5(1) EC stipulates that the EC shall act within the limits of the powers conferred upon it by the Treaty. It is equipped with no explicit powers in the field of sport. More than that: the EC Treaty does not mention sport. So one might argue – and governing bodies in sport frequently do argue – that sport is none of the EC’s business. But ab initio in Walrave and Koch the European Court rejected a line of reasoning that would have rigidly separated sports governance from EC law. That would have sheltered a huge range of practices with economic impact from the assumptions of EC law, damaging the achievement of the objectives of the Treaty. Admittedly the EC has no explicit authority under its Treaty to adopt legislation dictating how governing bodies in sport should act, but it derives a supervisory jurisdiction of sorts from the broad functional reach of the relevant rules of EC trade law (free movement and competition law, most conspicuously, buttressed by the basic prohibition against nationality-based discrimination). So sports governance becomes a matter for examination in the light of EC law because its practices may collide with the basic integrative and pro-competitive economic project mapped by the Treaty. Accordingly the Court, and more recently the Commission, have attempted to develop an approach which makes sense of the intersection between the demands of EC law and the aspirations of sport, notwithstanding the constitutional limitations under which they labour. One might argue – and governing bodies in sport frequently do argue – that the institutions of the EU have done a pretty bad job in shaping a ‘policy on sport’. This paper will not accept this verdict, but it will test the coherence of the EC’s intervention into sport, with particular reference to matters of governance. The story is necessary incremental – the shape of Treaty ensures this. It is incomplete too – litigation is the main source of hard data and the stream of litigation meanders and is occasionally dammed. But it is a story that reveals much about the EU institutions’ view of the necessary shape of sports governance.

The Helsinki Report on sport

In December 1999 the Commission issued a communication entitled ‘The Helsinki Report on sport’ (COM (1999) 644 and/2), designed for consideration by that month’s European Council held in Helsinki. The purpose of this note is to examine the key features of the Report and to show the direction in which EC policy on sport is likely to move in future. In order to achieve this, it is first necessary to sketch the history of EC involvement in sport, because much of the Helsinki Report can only be understood in the light of the incremental accumulation of material over time that has left the EC’s position on sports regulation uncertain and frequently (though not always fairly) criticised.