EC Consumer Law

Geraint G. Howells, Thomas Wilhelmsson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351942041
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho del consumo

This book will describe the development of European Community consumer law and seek to determine to what extent action by the European Community has promoted the interest of consumer protection. In doing so it will consider important areas relating to protection of the consumers economic interests and physical safety, as well as questions of access to justice. In addition to assessing the success of community consumer policy the authors will also put forward suggestions for ways in which consumer protection can be enhanced at the community level.

1 Introduction

1. Approach and Scope

A. What is Consumer Law?

Most societies have had rules protecting their citizens as consumers. From a functional perspective one could extend the history of consumer protection as far back as ancient rules on weights and measures. Legislation in areas such as food and insurance have also existed for a long time in many countries. Still, the concept of consumer law in the form it is used today is a relatively recent creation. Developing consumer protection only became important in the legal policy of Western European countries in the 1960s and 1970s. The concept of consumer law, as used in this book, should be understood against the background of modern consumer policy.

The new feature in this modern discourse (in addition to the obvious fact of the increased importance attached to this topic) is the general approach to ‘consumption’ problems which sets them within the framework of what one could call a ‘consumer protection ideology’. This approach contains two basic features which may be used as criteria to define the sphere of modern consumer law. First, the role in which a person acts in the market has become relevant in legal policy. It has been recognised that a consumer buyer might require additional forms of protection to those offered to a commercial buyer. In law the concept of ‘consumer’, that is a person acquiring goods or services for private use, and the concept of private consumption have become relevant. Second, the problems of the consumer are seen to arise out of his or her relationship to the commercial party – ‘the enterprise’. The relationship between consumer and enterprise is considered to be the basic legal relationship in consumer law.

In this book consumer law is understood in this limited sense, referring to the class of norms which are especially designated to protect the consumer in his or her dealings with an enterprise. This excludes some neighbouring branches of law, even though they may have an important impact on the position of consumers. Thus this book will not consider rules on general supervision of businesses, such as banking and insurance supervision,¹ and comparable rules on the conduct of certain other businesses, as these rules are not specifically geared towards the protection of consumers. The law of competition – the rules against restriction of competition as well as against unfair competition – are similarly excluded, as their primary object is regulating relationships between enterprises and any advantages for consumers arise only indirectly.

The aims of consumer law are sometimes described with the help of the concept of ‘market failure’. The consumer law norms purport to regulate or intervene in the market in order to put the consumer into a better position than he or she would be in without the regulation (and sometimes to place the consumer in the same position as he or she would have been in given a perfectly competitive market). Consumer law thus has an interventionist character.

In the field of consumer law, as well as in other fields of law, the approximation of the legal systems in the European Community takes place both through ‘positive’ and ‘negative’ harmonisation. By the latter is meant the removal of barriers of trade by requiring Member States to abolish national rules which are considered to create such obstacles. The European Court of Justice (hereafter ECJ) functions as the engine of this negative integration.² However, as these measures lead to deregulation by the removal of national interventionist norms, they are not the primary concern of this book, although they will be mentioned at appropriate places. Our main focus is on positive harmonisation, that is on the creation of new interventionist norms at the Community level. The fact that these norms may also have as their primary goal the creation of a coherent internal market, rather than the protection of consumers, does not take them outside the scope of our inquiry.

B. The Consumer Concept

As mentioned in the previous section, consumer law deals with rules and principles specifically designed to protect the consumer in his/her relationship to the enterprise(s). The rules to be analysed in this book are rules the scope of which are delimited by the consumer concept. The content of this concept draws the boundaries around the subject of the book.

‘Consumer’ can mean various things in different contexts. Economics and sociology have developed their own consumer concepts. In law the definitions of ‘consumer’ certainly vary both from country to country and with regard to different sub–areas of consumer law.

The Community has developed its own consumer concept, which can be interpreted independently, without reference to national legal systems. The interpretation of the ECJ expressly refers to the objective of the rules, that is protecting the economically weaker and legally less experienced party to the contract.³

The consumer concept is used four times in the Treaty of Rome.⁴ However, it has no distinct legal meaning in this context. The word ‘consumer’ in the competition law Articles (85–86) certainly also covers professionals. The Treaty itself offers no basis for the creation of a specific consumer law. This development first took place in secondary legislation, mainly by means of directives on consumer protection.

A definition of the consumer is included in several consumer protection directives⁵ as well as in the 1980 Rome Convention on the Law Applicable to Contractual Obligations (art. 5) and the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (art. 13). The definition is fairly formal and given in a negative form, excluding business and professional activities. A consumer is a natural person, who is acting for purposes outside his or her trade or profession.⁶ If the contract relates only partly to a trade or profession, the consumer protection directives should (according to some commentators) be applied if the person is acting ‘primarily outside his trade or profession’.⁷

There has been much discussion about whether the consumer protection provisions should be extended to protect small enterprises as well. The ECJ has expressly stated that the protection by the Doorstep Selling Directive does not extend its reach to beyond consumers proper.⁸ In that case the Advocate–General of the Court had suggested that the consumer concept should be defined concretely, rather than in the abstract, and so whether a person was acting as a consumer would depend upon the activity being undertaken. The case involved a businessman who sold his undertaking. The Advocate–General considered that he could be compared to a consumer, because the transaction in question was not common to him and thus was outside his trade or profession. The Court, however, did not accept the view of the Advocate–General; it preferred a narrower reading of the Directive. Only ‘real’ consumers – in the sense of private individuals – are to be treated as consumers when applying most of the Community consumer protection directives concerned with contract law.

Community consumer law is not, however, completely consistent in the way it delineates its scope. The Package Travel Directive uses a broader consumer concept – a person who takes or agrees to take the package or any person on whose behalf the purchase of the package is made or to whom the package is transferred (art. 2(4)) – and thus also covers, for example, a businessman buying a business trip.⁹ The scope of the Overbooking Regulation is equally broad.¹⁰ Therefore it is only logical that the Regulation – in contrast to the Package Travel Directive – speaks about ‘passengers’ instead of ‘consumers’. Strictly speaking, the Package Travel Directive and the Overbooking Regulation could therefore be said to fall outside the sphere of consumer law, as it has been defined above. However, as the aim of these measures certainly is the protection of consumers, they will be analysed in this book.

In other areas than contract law, the approach has sometimes been wider. The Misleading Advertising Directive protects consumers, as well as persons carrying on a trade or business or practising a craft or profession and the interests of the public in general (art. 1). Member States are required to have control systems in place to protect not only consumers, but also competitors and the general public, and actions may be brought by persons and organisations regarded under national law as having a legitimate interest in prohibiting misleading advertising. This is broader than merely giving standing to consumer organisations and could include trade associations (art. 4). The Products Liability Directive covers death and personal injury caused by a defective product, irrespective of whether the injured person used the product or was confronted by it as a consumer and regardless of whether the product was a consumer product or not. Recovery for property damaged is, however, restricted to damage caused to consumer goods. Obviously these Directives must be analysed in a treatise on EC consumer law, but the focus of this analysis will of course be on the effects of the Directives on the position of the consumer.

C. Our Approach and its Limitations

Since the start of a Community consumer policy in the mid–1970s a considerable amount of positive Community consumer law has been produced. As a consequence of this growing bulk of concrete legal material, legal writing in this area has also been expanding. Community consumer law has already been systematised and described in detail in legal literature. In addition to a large amount of articles in legal periodicals even a few comprehensive textbooks have been published.¹¹

The approach of this book is, however, somewhat different from the approaches of the existing textbooks. As opposed to the perspective of Norbert Reich’s book, the main focus is on the positive consumer law measures within the EC and not so much on the general regulation of market integration in the area of consumption and its effects on the position of consumers. Again, contrary to the approach of Vivienne Kendall, the aim is not to give a description of all the numerous legislative measures which, with a very broad definition of the scope of consumer law, perhaps could be said to belong to this area. Here we try instead to analyse the more important details of Community consumer law in connection with a general discussion of the aims and principles of this branch of Community law.

The concrete parts of the study therefore focus on the most important directives in the area, analysing them both from a legal policy perspective and from a black–letter law perspective. All the details of the large amount of legislation that constitute European Community consumer law will not be looked at, as one purpose of the analysis of these details is to present the basic policies and approaches – from a legal perspective one could also speak about the general principles – of Community consumer law. The details are analysed in the light of some general questions which have been considered relevant in this context.¹²

As noted above, the book deals with consumer law proper, leaving aside areas like competition law as well as banking and insurance law. In order to avoid too much detail, and as these questions often are analysed in specific treatises, we have also excluded the law on food and cosmetics and related products, although this area of consumer law h...