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Understanding EU Consumer Law

Hans-W. Micklitz, Norbert Reich and Peter Rott

Intersentia, 2009 

 

Understanding EU Consumer LawEU consumer law is the core of European private law. In recent years, it has been subject to spectacular decisions by the European Court of Justice, with important consequences for the private law of Member States. Currently, it is under scrutiny by the EC Commission, which has just published a proposal for the revision of mportant aspects of the EU consumer law acquis.

The three authors have worked together to take a broad horizontal approach at the European consumer law acquis, thereby reflecting on the history, the achievements and also the shortcomings of EC law in this important field of law. The change from ‘minimum’ to ‘full’ or ‘targeted harmonisation‘’ is critically analysed.

The book contains an overall description of the position of EU consumer law between internal market law and consumer protection in Chapter 1.

Chapters 2 to 5 deal with advertising and commercial practices law mostly under Directive 2005/29/EC, with Directive 93/13/EEC on unfair terms in consumer contracts, with consumer sales under Directive 1999/44/EC and with the recent Directive 2008/48/EC on credit agreements for consumers.

Chapter 6 takes a fresh look at an ‘old acquaintance’, namely Directive 85/374/EEC on product liability, ‘upgraded’ by an annex proposing an EC instrument introducing service liability.

The closing chapters 7 and 8 concern cross-border consumer transactions, breaches of consumer law and litigation, and different mechanisms of individual and collective consumer protection to make consumer law effective and efficient. 

This volume gives consumer law in the EU a new perspective. It is equally indispensible for scholars and practitioners. It also serves as a valuable guide in the debate about the Commission proposal of October 2008 for a Directive on consumer rights.

 

Table of Contents


 

Chapter 1 - Economic Law, Consumer Interests and EU Integration
Norbert Reich

I. Economic law and consumer interests in the complex relations of Community, Member States and undertakings

II. The initial “productivist concept” of the EEC Treaty and the problemxof the promotion of consumer interests

III. Consumer rights under primary EU law

1. Consumer policy as an independent Community policy

2. The consumer right to information

3. The consumer right to education, association, protection of legitimate expectations and effective judicial protection

IV. “Measures” of consumer policy: a question of competence

1. Harmonisation measures according to the “old law”

2. Competence in the internal market and its restrictions

3. “Measures” instead of “specific actions”

4. “Monitoring” measures

5. Classification of the different policies

6. Overview of “positive” integration measures of EC consumer law and policy

V. The position of the consumer under the law of EC directives

1. Prevalence of directives in EU consumer policy

2. Legal eff ects of directives

VI. Consumer concepts in Community law

1. The “informed consumer” standard

2. “Consumer” as a legal concept: a narrow or a wide defi nition?

VII. Future orientations of EU consumer policy and law – a critical overview

1. From consumer law to user protection?

2. Consumer law and contract law in the EU

3. Review of European consumer contract law: towards “full harmonisation” of the “acquis” or a “European consumer contract law regulation” (ECCLR)?

 

 

Chapter 2 - Unfair Commercial Practices and Misleading Advertising
Hans-W. Micklitz

I. Introduction

1. Summary of the legislative history of Directive 84/450/EEC

2. The development of Directive 97/55/EG concerning misleading advertising so as to include comparative advertising

3. Relationship with primary Community law

4. The way ahead – Directive 2005/29/EC on unfair commercial practices (UCPD)

II. The purpose of Directive 2005/29/EC

1. Protection of consumers’ economic interests

2. Main purpose of the UCPD: freedom of decision-making, market transparency and information

3. Internal market reference and general interest

4. The relationship of the protective purposes to each other

III. The scope of Directive 2005/29/EC

1. Personal scope of application

2. Factual scope of application

3. Limitation of the scope of application

IV. Minimum/maximum harmonisation and internal market clause in the UCPD

1. The background to the debate

2. Maximum harmonisation and internal market clause

V. The concept of fair trading in the UCPD

1. The three-level structure of the general clause

2. Conceptual basis of the term “fairness”

3. Requirements of professional diligence

4. Material distortion of the economic behaviour of the consumer

5. The “average consumer” and particularly vulnerable groups

6. Relationship between the comprehensive general clause and the special general clauses

VI. The concept of misleading advertising in Directive 2005/29/EC

1. The concept of misleading commercial practices

2. Misleading commercial practices – abstract or concrete?

3. Information requirements and misleading omissions (Article 7)

VII. Comparative advertising in Directive 97/55/EC

1. The concept of comparative advertising

2. Strengthening of the rational decision-making process

3. The required extent of the comparison

VIII. Aggressive commercial practices in Directive 2005/29/EC

1. Aggressiveness as a new prohibition clause

2. Aggression and culture

3. Function and system of Articles 8 and 9

IX. Annex I of Directive 2005/29/EC – structure and concept

1. The list’s concept and national law

2. “Considered unfair” – “considered misleading” – scope for interpretation

3. Exclusive or non-exclusive

X. Codes of practice in Directive 2005/29/EC

1. Function of the codes of practice

2. Substantive requirements and legal consequences of a breach

XI. Burden of proof in Directives 97/55/EC and 2005/29/EC

1. The regulation in Directive 2005/29/EC

2. The regulation in Directive 97/55/EC

 

 

Chapter 3 - Unfair Terms in Consumer Contracts
Hans-W. Micklitz

I. The starting point

1. The proposals of the Commission

2. The deliberations in the Council of Ministers

3 The protective purpose of Directive 93/13/EEC of 5 April 1993

II. The scope of application of Directive 93/13/EEC

1. Objective scope of application

2. Exceptions to the scope of application

3. Subjective application criteria

III. The concept of unfairness

1. Unfairness in the formal sense: the so-called requirement of transparency

2. Substantive criteria

3. The consequences of unfair terms

IV. The so-called indicative list

1. The legal nature of the indicative list

2. Is there an obligation to implement for the Member States?

3. The content of the indicative list

V. Law enforcement

1. Adequate and eff ective means of law enforcement – associations and authorities with standing to sue

2. Limitation period

3. Review ex officio

VI. Reform of the Unfair Terms Directive 93/13/EEC

 

 

Chapter 4 - Sale of Consumer Goods
Hans-W. Micklitz

I. Introduction

II. Scope of application

1. Scope of application concerning the subject matter

2. Scope of application concerning the person affected

III. Conformity of the consumer goods with the contract

1. Description, sample or model, Article 2(2) lit a

2. Fit for any particular purpose for which the consumer requires them, Article 2(2) lit b

3. Fit for normal use, Article 2(2) lit c

4. Normal quality and public statements, Article 2(2) lit d

5. Incorrect installation or incorrect installation instructions

IV. Time and presumption of lack of conformity

V. Statutory exclusion of liability for lack of conformity

VI. The obligor, Article 2 and the right of redress, Article 4

1. Obligor

2. The right to redress in Article 4

VII. Remedies of the consumer, Article 3

1. Repair and replacement

2. Reduction of the price and rescission of the contract

VIII. The double period and the period for asserting a claim, Article 5

IX. “Commercial” guarantees, Article 6

X. Binding nature, minimum protection, PIL, duty to report and inform, Articles 7, 8, 9, 11 and 12

1. Binding nature, Article 7(1)

2. The minimum protection clause

3. The duty to report and inform

4. Revision of the Consumer Sales Directive

 

 

Chapter 5 - Consumer Credit
Peter Rott

I. Consumer Financial Services

II. The old Directive 87/102/EEC

III. The reform process and the harmonisation concept

IV. The new regime of Directive 2008/48/EC

1. Scope of application

2 The protective instruments

V. Conclusions and perspectives

 

 

Chapter 6 - Liability for Defective Products and Services
Hans-W. Micklitz

I. The work of the EC on a directive on product liability

1. The economic and legal fundamentals of the European approximation work

2. Consumer interests in product liability law

3. The development stages of the E(E)C – approximation work

II. The safety concept of the Directive: what is a defect?

1. The notion of defect in the different proposals

2. Defect and expected safety

III. The notion of “producer”

1. Importance of the concept for a system of “strict liability”

2. The concept of “producer” in Directive 85/374

IV. Exemptions from liability

1. Exemptions related to the product

2. Exemptions related to the person

V. Exemptions related to risks: the development risk defence

1. The origins of the debate

2. The present situation of the “development risk” defence

VI. The effects of the Directive on the product liability law of the Member States

1. The relation to other claims under national law

2. Prescription periods

3. Implementation proceedings

4. The impact of the Directive on the substantive law of the Member States

5. Legal protection provided by the Directive

VII. Liability for services

VIII. Annex: Proposed Draft for a EC regulation/directive on the liability for the safety of services

1. General concept

2. Elements of liability

3. Exclusion of liability

4. Specific ADR mechanisms

 

 

Chapter 7 - Cross-Border Consumer Protection
Norbert Reich

I. General remarks

II. The Rome Convention

1. Freedom of choice: Article 3 taken with Articles 8 and 4 of the Rome Convention

2. Scope of application as regards the person aff ected: consumer contracts (1)

3. Scope of application as regards the subject matter: consumer contracts (2)

4. Special connecting factors in consumer contracts (3)

III. Rome I-Regulation (EC) 593/2008

1. Issues for reform of PIL

2. Transforming the Convention into a Regulation – Commission proposal of 15 December 2005 and amended EP-proposal of 29 November 2007

3. Rome I-Regulation – relation to the Convention

4. Reformulation of consumer contracts

5. Special rules for personal passenger contracts

6. Relation to special EC instruments

IV. PIL in secondary Community law

1. Special provisions in the consumer law regulations

2. Directives

V. Rome II: Regulation (EC) 864/2007 on PIL arising out of non-contractual obligations

1. General application of the lex loci delicti

2. The special case of product liability

3. Unfairness – the “market principle” vs. country of origin

4. Restraints of competition

5. Other non-contractual obligations – limited freedom of choice

VI. Jurisdiction in cross-border litigation

1. The importance of the Brussels Convention and Regulation

2. Jurisdiction over consumer contracts under the Convention/Regulation

3. Actions in tort/quasi-delict

VII. Specific Community procedures also involving consumers

1. Order for payment procedure

2. Small claims procedure

VIII. Outlook: “Transnational consumer law” as an alternative to confl ict rules?

1. Lex mercatoria electronica as emerging “transnational law”?

2. The evolution of “soft law” standards – an alternative to “hard” law concerning cross-border transactions?

 

 

Chapter 8 - Legal Protection of Individual and Collective Consumer Interests
Norbert Reich

I. Effective and appropriate legal protection as a general Community law principle

1. Overview of the development of the case law

2. The principles of equivalence and effectiveness as a Community guideline for enforcing EU consumer rights under national law

3. Improvement of effective legal protection of the individual

4. The meaning of effective legal protection in consumer law

II. The improvement of the legal protection of the individual in horizontal relationships against undertakings

1. Claims for compensation under Community law as regards the horizontal relationship for breach of directly applicable primary law

2. Effects on consumer protection – proposed EC action

III. Effective legal protection of the individual and liability of the Community

IV. Improving consumers’ access to justice

1. Legal aid in cross-border conflicts

2. Alternative dispute resolution (ADR)

3. Case law on ADR and consumer arbitration

V. Enforcement of collective consumer interests

1. General principles under Community law

2. Absence of collective redress mechanisms in primary Community law

3. Secondary law

4. Right of action and standing to sue (legitimate interest to take legal action)

5. International jurisdiction and enforcement in actions for cross-border injunctions

6. Cooperation on consumer protection

7. Collective redress in EC law – a new tendency to law enforcement?

 

EU Secondary Law Register 

Register of ECJ Decisions

 

 

Page last updated on 09 September 2019

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