8.6.1 New Dutch legislative proposal

In the Netherlands, the Labour Party (Partij van de Arbeid, i.e. PvdA) is preparing a legislative proposal to assist consumers in promoting CSR.1 According to many in the Netherlands, including the Dutch Labour Party, consumers play an important role in promoting CSR, i.e. by taking conscious decisions when buying products. As they need information upon which to base their decision to buy, they are expected to request information from companies regarding the societal aspects of a product, thereby helping companies to better manage and control their supply chain.2

The objective of the proposed bill (Wet Openbaarheid Productieketens [Act on the transparency of supply chains], WOP) is to grant consumers a 'right to know' concerning the sustainability aspects of products offered on the Dutch market with a view to enhancing sustainable consumption. A right to information could contribute to transparency concerning the manner in which products are produced. Transparency is one of the cornerstones of a well functioning market economy. Therefore, only if a consumer has access to information about the extent to which supply chains comply with societal norms during the production process, will he be able to make an educated decision to either buy or not to buy the certain product. As a consequence, the consumer's decision will be an incentive to companies to sell products that are produced in a sustainable manner. ' Consumer power' is one of the means embraced by the Dutch government and the EU Commission to exert influence on international supply chains. The WOP grants consumers a right to information regarding the CSR aspects of a certain product. These aspects relate to compliance during the production process (in the supply chain) with (see draft article 2):

A manufacturer operating on the Dutch market has to provide, upon request, the abovementioned information to a consumer or consumer association. According to the WOP, a 'consumer' is any natural person who is acting for purposes which are not related to trade, business or a profession. 'Manufacturers' are manufacturers of a finished product, producers of raw materials and elementary components, or any persons purporting to be a manufacturer by placing their name, trade mark or other distinctive sign on the consumer goods (the same definition is used as the one in the Product Liability Directive3).Whether or not a purchasing agreement has been concluded is not a decisive factor; the consumer's intention to buy the product is sufficient to activate the right to information. The information requested shall be provided within 45 days after having received the request (the same period as under REACH). An information request can be submitted by the consumer, and answered by the manufacturer, on paper or by means of another durable medium which is easily accessible to the consumer.4

In order to protect the competitive position of manufacturers, the proposed act exempts a manufacturer from providing information if this could cause serious or irreparable damage to its legitimate commercial interests. Furthermore, to alleviate the burden on manufacturers to produce answers, the WOP has built in quantitative limitations. Draft article 4 releaves the manufacturer from the obligation to respond if he is able to demonstrate that he has satisfied a certain maximum number of information requests in the same year. This article contains a table which provides quantitative limitations related to the number of employees. On an annual basis, for every product, information has to be communicated at a pace of (on average) one request for every hundred employees. For example, if a company with 650 FTEs places 15 different products on the market, it has to deal with a maximum of 90 information requests submitted by consumers on annual basis.

A manufacturer acts in accordance with the WOP by providing the requested information within the agreed deadline. However, the data in question might not be available in the supply chain. In that case, a manufacturer can still fulfil his duty under the WOP by simply informing the consumer of this fact. The WOP does not contain a sanction mechanism. In fact, the WOP relies on market forces and consumer empowerment. Notwithstanding, the legislative proposal could seek analogous application of the legal framework of ' unfair trade practices' (Directive 2005/29/EC; see sections 8.4.5 and 8.5.3 supra), if it were to define a manufacturer's failure to timely answer a consumer request as an 'unfair commercial practice'. Hence, pursuant to article 5 of this directive, such manufacturer can be considered to have 'distorted the economic behaviour of a consumer with regard to the product in question'. Under articles 6:193b or 6:193c DCC this might qualify as a tort against the consumer because the former impairs the latter's ability to make an informed decision. This could in turn lead to a compensatory damages claim (article 6:162 DCC).

The proposed WOP will probably soon be submitted to Dutch Parliament. Subsequently, the Lower House can either adopt, reject or amend the proposal. The WOP will not be promulgated until the Upper House has adopted the proposal.

From the perspective of a European legal framework, the proposal is consistent with current legislation as discussed in the previous sections. Manufacturers use information mechanisms, such as the information exchange channels which have been developed in the supply chain pursuant to obligations imposed by REACH, the General Food Law, the Fish Directive and the Tobacco Directive. Besides, the WOP is in line with the European trend of consumer empowerment and the emergence of awareness. The Fish Regulation

(see section 8.4.6 supra) is an example thereof. Additionally, in the Consumer Directive, rules about consumer rights on information constitute an important element (see section 8.4.3 supra).