The Yearbook of Consumer Law 2009

Annette Nordhausen, Geraint Howells, Deborah Parry

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317011439
• Edition: 1
• Topic: Droit
• Subtopic: Jurisprudence

The Yearbook of Consumer Law provides a valuable outlet for high quality scholarly work which tracks developments in the consumer law field with a domestic, regional and international dimension. The 2009 volume presents a range of peer-reviewed scholarly articles, analytical in approach and focusing on specific areas of consumer law such as credit, consumer redress and the impact of the European Union on consumer law. The book also includes a section dedicated to significant developments during the period covered, such as key legislative developments and important court decisions. It is an essential resource for all academics and practitioners working in the areas of consumer law and policy.

Part 1 : Articles 2009

1 Crisis or Future of European Consumer Law?

Norbert Reich*

‘Whither EU Consumer Law’: A Legitimation Crisis?

1. ‘Heute keine Ware’ – a poster from 1973, in the old German Democratic Republic, saying ‘WE HAVE GOT NOTHING TO SELL TODAY’, was typical for the socialist ‘economy of scarcity’. With the change in the political system, the ‘economy of affluence/consumption’ is now omnipresent. The ‘economy of consumption’ in Western Europe led to the development of a specific European ‘consumer law’. For many authors1 European consumer law has been, despite its technical weaknesses, its ‘pointillistic character’ and the pressure it puts on the coherence of national contract law2 – a success story. It has put consumer protection on the agenda of the EU which cannot be abandoned. The EU has enacted a number of legal instruments – mostly directives – which have been implemented in Member States and which have contributed to the transformation of civil justice and trade practices law. These measures have led to a growing body of case-law at EU-level and even more so at national level, which has improved the position of the consumer in everyday transactions, against unfair advertising, against product risks, and in the enforcement of rights. Most of all, they have created a new subject of law, namely the consumer, who – similar to the EU citizen – is empowered with a number of rights laid down in Article 153(1) EC. The most important is the right to information, which must be surrounded by a protection of legitimate interests and effective enforcement mechanisms (judicial or Alternative Dispute Resolution (ADR)).3

From a socio-philosophical point of view, this emergence of the consumer has been criticised by Krämer as reducing the citizen to an economic subject, to a nearly parasitic ‘middle-class’ shopper who tries to get the best bargain at the lowest price, notwithstanding environmental concerns and gross inequalities of income distribution and mobility.4 Hesselink5 has recently put doubts on the one-sided market approach of consumer law disregarding the citizen and more fundamental values of justice which are the basis of contract law. But, in my opinion, this reduction of ‘consumer law’ to mere economic transactions and to ‘middle-class values’, is not a necessary consequence (see Part V below).

Other critics have insisted on the one-sidedness and the paternalistic approach of consumer law to contractual freedom: in imposing a set of mandatory rules on consumer transactions and communications, optimal decisions on markets for consumer goods may be made impossible, ‘reliable’ consumers may indirectly subsidise ‘bad consumers’, choice of consumers is limited and business may be burdened with compliance costs which will eventually be passed on to consumers.6 For other authors, there is no general principle of consumer protection, and there should not be one in EC law,7 there are only selective measures of protection. A recent paper by Unberath and Johnston8 has criticised the paradox of the ECJ in approaching consumer law questions in primary and in secondary law: while the first rests upon a liberalising philosophy, the second is based on an interventionist approach without considering Community policy ‘in the light of proportionality and the possible applicability of theories of regulatory competition’.

Too much, too little or all wrong? The apparent success story of European consumer law is under review by a number of recent developments in the EU itself which deserve attention. We agree with Weatherill, that ‘EC consumer policy is set to enjoy deservedly close attention as it enters its mid-life, if not its mid-life crisis’.9

If our observations are correct, the challenges facing EC consumer policy and law today should be discussed around three problem areas:

• An ‘intrinsic’, conceptual shortcoming despite achievements: the seeming reduction of consumer law to consumer information. This should, in our view, be widened both by an extension of the concept of the consumer – at least in some areas – to the user, and in the widening of certain ‘minimum standards’ beyond information, already done in some areas however inconsistently.

• An ‘extrinsic’, competence shortcoming: the unclear place of consumer law in the multi-level system of governance of the EU. This must be overcome by reconsidering the broad impact of Article 153 as the ‘general consumer policy norm’, which has to be read in conjunction with Article 3(t) EC as a ‘measure which is essential to the accomplishment of the tasks entrusted to the Community and, in particular, to raising the standard of living and the quality of life in its territory’.10

• A ‘global’, jurisdictional shortcoming: reconsidering the territorial and personal limits of EU consumer law, eventually by referring to a ‘transnational consumer law’ beyond the state and the EU.

‘Intrinsic’, Conceptual Problems

The overall priority of consumer information

2. The importance of consumer information is laid down in Article 153(1) EC, which was introduced with the Amsterdam Treaty of 1999. Article 129a EEC did not contain such a right.11 However, the Court of Justice, in its well known GB Inno case of 1990,12 already derived a right of information from the principle of free movement.

This right of information contains four different aspects:13

• prohibition of misleading information;

• transparency of commercial statements and contract forms;

• certain information and disclosure obligations in secondary EC law;

• a right of cancellation (cooling-off period) in certain types of transactions, either depending on the marketing technique (‘doorstep contracts’ via Directive 85/577/EEC,14 distance contracts via Directive 97/7/EC15 and for financial services Directive 2002/65/EC16), or the subject matter of the contract (timeshare in Directive 94/47/EC,17 life assurance by Directive 2002/83/EC,18 in the future also consumer credit by the Consumer Credit Directive (CCD) 2008/48/EC.19

This is not the place to analyse the different aspects and extent of information obligations in detail. The prohibition of misleading information is a general principle of market law and was included into secondary Community law as early as 1984 when the misleading advertising Directive 84/450/EEC20 was adopted. Many documents have repeated this principle and it can be said to be part of the general law of the EC, the acquis communautaire. It is, however, not confined to consumer markets, though it is most important here. It applies to any market communication, but the standards for measuring ‘deception’ will be a different one for business-to-business (B2B) and business–to–consumer (B2C) communications. With regard to the latter, the ECJ developed the so-called ‘informed consumer standard’, which can also take into account linguistic and cultural specificities.21

The principle of ‘transparency’ relates mostly to consumer transactions and has found its explicit expression in Articles 4 and 5 of the Unfair Contract Terms Directive 93/13.22 It has been repeated in other directives relating to pre-contractual information, for example on consumer guarantees (Article 6 of Directive 99/44)23 or on financial services.24 It must also be regarded as an element of effective competition.

3. Disclosure obligations have been included in most consumer directives, starting with the Doorstep Directive up to the recent Unfair Commercial Practices Directive 2005/29/EC (UPCD)25 which has created the concept of ‘misleading omissions’. This indirectly imposes information obligations onto the trader by making it an unfair practice not to disclose certain information.26 An even more detailed approach is proposed in the CCD. The new Directive on Services in the Internal Market 2006/123/EC27 (DSIM) regulates, in Article 22, ‘information on providers and their services’ which are not limited to consumer transactions.

Finally, the cancellation right, which is granted in several directives, must also be regarded as an information-type instrument. The consumer must always be informed about this right (the consequences of non-information are discussed in para. 11). The effect of the contract depends on whether the consumer exercises his right of revocation or not. The cancellation right does not regulate the content but only the conclusion of the contract and aims to guarantee the consumer an informed choice after the conclusion of the contract, either because he has not been able to do so by the way he has been induced into the contract (doorstep situation or distance marketing system), or because of the complexity and the long-term financial consequences of the contract for him (timeshare, life assurance, consumer credit). The benchmark is the rational, informed consumer; at the same time the right of cancellation serves competition because it allows the consumer to switch to more advantageous conditions if he becomes aware of them within the time for revocation; Micklitz has derived from this a new paradigm of ‘competitive contract law’.28

This analysis shall be completed by a reference to primary law where the Court, ever since its seminal Cassis case,29 developed indirect information obligations under the free movement rules: where a Member State invokes non-discriminatory restrictions on cross-border transactions of goods (and later services) justified in the consumer interest, it should prefer information measures to more restrictive instruments like prohibitions, controls and other intrusive means of regulation. The principle of ‘information first’ is a sequel to the overall trust in consumer choice and autonomy as an adequate instrument of creating the Single Market. Consumer policy is part of this overall goal in respecting the proportionality principle.30

Missing links

No direct effect of Article 153 EC but possible use for interpretation purposes 4. This well developed ‘information paradigm’ however, has a number of drawbacks both from a legal and from a consumer policy point of view. One reason may be the ‘information overkill’ which can be observed in areas where EC law has been active. Instead of concentrating on those parts of information which are really relevant for the consumer, the legislator seems to regulate a black box without asking what the ‘normal consumer’ can bear and what limits exist to information take-in. This is particularly true for information concerning adverse effects or certain risks inherent in a transaction or an action, as could be shown with cigarette warnings. Even dramatic forms of warning like ‘smoking kills’ do not seem to be able to overcome the cognitive dissonance of consumers.31 In the end they may serve to exempt the trader from liability, but not to provide the consumer with relevant market information.

There are some other structural limits to the information paradigm in EC law. Most importantly, the ‘right to information’ in Artic...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Contributors
• Preface
• PART 1: ARTICLES 2009
• PART 2: CURRENT DEVELOPMENTS