With headlines in the local media taken over by the divorce debate, the war in Libya and the death of Osama bin Laden, there has been meagre focus on the recent approval by Parliament of a law setting up a new regulatory authority responsible for consumer protection and competition.
This is regrettable because consumer protection impacts each and every one of us. The letters to the editor section in this newspaper is ample proof of the myriad of problems faced by consumers across a variety of sectors.
The setting up of this new authority is a welcome and long overdue development and I augur that, once it is up and running, its role will herald a new dawn in the realm of consumer protection in Malta. However, the law setting up the authority focuses on the administrative and procedural side but provides little by way of innovation insofar as substantive law is concerned. This may be conditioned by the fact that the EU has, for well over two years, been debating a new directive on consumer rights, which, if approved, will radically change the landscape of consumer rights in Malta.
It seems the competent authorities in Malta decided to wait for the final outcome at an EU level on this directive before proceeding with the enactment of any substantive law measures.
Again, there has been practically no discussion in Malta on this “landmark” EU proposal.
The directive as originally proposed dealt with four areas of consumer protection: sale of goods to consumers, unfair terms in contracts, distance selling and doorstep selling. The original proposal was aimed at repealing the existing four directives on these subjects and providing a single compact directive. In principle, this is a good idea. However, the proposed directive envisages that it will be a maximum harmonisation directive, meaning that members states – Malta included – would have to revise their laws to comply with the norms in this directive even if the same national laws provided for more advantageous rules in favour of consumers.
Perhaps one of the most glaring measures in the original proposal, which demonstrates the dangers of a sweeping introduction of maximum harmonisation, is the substitution of the remedy in the context of sale of goods, whereby a consumer having purchased a good not in conformity with the agreement made with the trader has a choice of remedies at first tier to opt for repairs or replacement and a second tier to ask for a full or partial refund of the money paid.
Under the 1999 directive, member states have the option toprovide for more favourable solutions including giving consumers an even wider choice of remedies.
Conversely, the proposed directive drastically diminishes the protection to consumers because, unbelievably, it provides that the choice of the remedies in case of non conformity with the agreement of the good purchased should lie with the trader.
The main battleground in the context of this proposed directive is that when dealing with such key matters it should be based on a minimum harmonisation requirement thereby allowing member states to retain the more favourable measures protecting consumers that they may have under their national law.
I hope that when matters come to the crux, those with the authority to prevent any regress in the rights of consumers in Malta will ensure that the appropriate stance is taken. Failure to do so may mean that some of the positive measures introduced over the years in favour of consumers will have to be revised to the detriment of us consumers.
This contribution reflects only the author’s views.
Dr Micallef is a member of the Consumer Association.