European Standardisation of Services and its Impact on Private Law: Paradoxes of Convergence

by Barend Van Leeuwen

Overview

With the New Approach, the EU has incorporated European standardisation in its regulatory approach to improve the free movement of goods. Such a New Approach does not exist for services. Nevertheless, a significant number of European services standards have been made.

This book focuses on European standardisation of services and its impact on private law. Two services sectors are analysed: the healthcare sector and the tourism sector. The core chapters of the book contain a number of case studies based on empirical research in these sectors.

The first part discusses how European services standards interact with existing legal regulation at the European and national level. It is shown that, at the European level, there is no clear legal framework in which European services standards are adopted. This has an impact on their application in private law, which is the main theme of the second part of the book. Moreover, there is a real risk that European services standards create obstacles to free movement. This will prevent their successful application in private law.

Product Details

ISBN-13:	9781509908332
Publisher:	Bloomsbury Academic
Publication date:	02/23/2017
Series:	Modern Studies in European Law , #68
Pages:	252
Product dimensions:	6.14(w) x 9.21(h) x 0.62(d)

About the Author

Barend van Leeuwen is Assistant Professor of European Law at the University of Groningen.

Table of Contents

Acknowledgments v

Table of Cases xiii

1 Context and Methodology 1

I The Context; European Regulatory Private Law 1

A The European Regulatory Private Law project 1

B The Methodology of the ERPL Project 3

II Methodology 4

A The Aim of the Book 4

B The Selection of the Services Sectors 6

C Interviews and Socio-Legal Research 7

III The Structure of the Book 9

A The Macrostructure of the Book 9

B The Microstructure of the Book 10

2 Convergence in Private Law, European Standardisation and Free Movement of Services 12

I Convergence in Private Law: The Context of the Discussion 12

A The Limits of 'top-down' Convergence in Private Law Through European Harmonisation 12

B 'Bottom-up' Convergence Through European Standardisation as an Alternative to European Harmonisation 16

II Convergence in Private Law Through European Standardisation 19

A How Would Convergence in Private Law Through European Standardisation Work? 19

B Why Would Convergence in Private Law Through European Standardisation Occur? 22

C What Does Convergence in Private Law Through European Standardisation Mean? 24

D How Could Convergence in Private Law Through European Standardisation be Tested? 26

III The Regulation of Services by the EU, Its Impact on Private Law and the Role of European Standardisation 27

A Free Movement of Services Under Article 56 TFEU 27

B The Services Directive 2006 31

C European Standardisation of Services and its Impact on Private Law 35

IV A Preliminary Conclusion 38

3 The Legal Framework for European Standardisation of Services and the Role of Private Law 40

I The European Legal Framework for Standardisation of Services 40

A The New Approach and Directive 98/34 on Technical Standards 40

B The Services Directive 2006: Towards a New Approach to Services? 47

C The Standardisation Regulation 2012 49

D Certification in the New Approach and Outside a European Framework 51

II European Standardisation of Services and Private Law 54

A Standardising Goods and Services: Similar or Different? 54

B The Interaction Between the European and the National Level in European Standardisation 57

C Consensus-based Decision-Making and Voting in European Standardisation 60

III European Standardisation and Legitimacy 61

A The Distinction Between Mandated and Non-Mandated Standards 61

B Representation 62

C Transparency 63

D Accessibility 64

IV The Perspectives of Some Key Players in European Standardisation of Services 65

A CEN 65

B ANEC 67

C European Commission 69

V A Preliminary Conclusion 71

4 European Standardisation of Healthcare Services 74

I The Interaction Between EU Law and Healthcare Services 74

A The Lack of EU Competence to Regulate Healthcare Services 74

B The Impact of the Case Law on Free Movement of Services on the Regulation of Healthcare Services 78

i Procedural Requirements for Prior Authorisation of Healthcare Abroad 78

ii Substantive Requirements for Prior Authorisation of Healthcare Abroad 79

iii Waiting Lists 80

iv Transparency of Costs of Treatment 80

C The Impact of the Cross-Border Healthcare Directive 2011 on the Regulation of Healthcare Services 82

i Quality Standards 83

ii Accessibility of Quality Standards 83

in Information Requirements 84

iv Complaints and Insurance 84

D The role of European Standardisation in the Regulation of Healthcare Services 85

II The Regulation of Healthcare Services at the National Level and the Role of Private Law 86

A The Transformation of the Character of Healthcare Services 86

B The Interaction Between Public Law and Private Law in the Regulation of Healthcare Services at the National Level 88

C European Standardisation in National Regulation of Healthcare Services 91

III Three Case Studies on European Standardisation of Healthcare Services 93

A Aesthetic Surgery Services 93

B Cleft Lip Surgery Services 97

C PIP Breast Implants 100

IV The Interaction Between European Standardisation and Healthcare Services 104

A Traditional Evidence-Based Medical Standardisation and European Standardisation Through CEN 104

B European Standardisation and De-Professionalisation of the Medical Profession 107

C The Role of Public Authorities and the Protection of National Legislation in European Standardisation 109

D European Healthcare Standards Vis-à-vis National Healthcare Standards 111

V A Preliminary Conclusion 112

5 European Standardisation of Tourism Services 114

I The Interaction Between EU Law and Tourism Services 114

A EU Competences in Tourism and EU Tourism Policy 114

B The Impact of the Case Law on Free Movement of Services on the Regulation of Tourism Services 117

C The Impact of the Package Travel Directive 1990 on the Regulation of Tourism Services 120

i Information Requirements 122

ii Amendments and Cancellation 122

iii Emergency Assistance 123

iv Liability 123

v Damages 123

D The Role of European Standardisation in the Regulation of Tourism Services 127

II The Regulation of Tourism Services at the National Level and the Role of Private Law 128

A The Interaction Between Public Law and Private Law in the Regulation of Tourism Services at the National Level 128

B European Standardisation in National Regulation of Tourism Services 130

III Two Case Studies on European Standardisation of Tourism Services 131

A Tourist Guide Training 131

B HOTREC's Opposition to European Standardisation and the Alternative of European Classification 135

IV The Interaction Between European Standardisation and Tourism Services 138

A SMEs and Stakeholder Participation in European Standardisation of Tourism Services 138

B European Standardisation of Services and Free Movement 140

C European Standardisation of Services and Quality, Safety and Diversity 143

V A Preliminary Conclusion 144

6 The Application of European Standards in Contract Law and Tort Law and the Role of The Unfair Contract Terms Directive 146

I From the Making of European Services Standards to their Application in Private Law 146

II European Standards in Contract Law 147

A Framing Convergence in Contract Law 147

B Case Study: PIP Breast Implant Group Litigation in the UK 149

C Convergence in Contract Law 152

III European Standards in Tort 156

A Framing Convergence in Tort 156

B Case Study: TÜV Rheinland in the German and French Courts 159

C The Impact of PIP on Convergence in Tort 164

D Convergence in Tort 166

IV European Standards and the Unfair Contract Terms Directive 171

A Framing Convergence and the UCTD 171

B The Ex Ante Abstract Review and the Ex Post Concrete Review of European Standards 172

i The Ex Ante Abstract Review of European Standards 173

ii The Ex Post Individual Review of European Standards 175

iii European Standards and Individual Negotiation 175

iv European Standards and Mandatory Statutory or Regulatory Provisions 176

C Unfair Terms in European Standards 178

D The Role of the Injunction and the Impact of the UCTD on Convergence 182

V A Preliminary Conclusion 184

7 The Application of European Standards in Free Movement Law and Competition Law 186

I From the Application of European Standards to their Review 186

II European Standards in Free Movement Law 187

A Framing Convergence in Free Movement Law 187

B Case Study: Fra.bo 189

C The Impact of Fra.bo on Convergence in Free Movement Law 192

D Convergence in Free Movement Law 194

III European Standards in Competition Law 198

A Framing Convergence in Competition Law 198

B Case Study: EMC Development 200

C Convergence in Competition Law 202

IV A Preliminary Conclusion 205

8 Paradoxes of Convergence 207

I Returning to the Theme of Convergence 207

II European Standardisation and Services 208

A Outsiders and European Standardisation: Who Initiates Convergence? 208

B Triggers for European Standardisation: What are the Drivers for Convergence? 210

C Quality of Services and European Standardisation: What is the Impact of Convergence on Quality? 213

III European Standardisation and Private Law 215

A Convergence Without a European Regulatory Framework: Linking European Standardisation to Private Law 215

B Convergence Through Standardisation: The Impact of European Standards on the Liability of Service Providers 217

IV Paradoxes of Convergence 219

A The EU Paradox 219

B The Stakeholders Paradox 221

C Trying to Resolve the Paradoxes 222

Annex: List of Interviews 225

Index 227